**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+--------------------------------+
| In the Matter of                 | ) | File Number EB-05-NY-238       |
|                                  |   |                                |
| Cumulus Licensing, LLC           | ) | NAL/Acct. No. 200632380005     |
|                                  |   |                                |
| Licensee of Station WZAD         | ) | FRN 0002 8348 10               |
|                                  |   |                                |
| Wurtsboro, New York              | ) |                                |
|                                  |   |                                |
| Facility ID #74285               | ) |                                |
|                                  |   |                                |
|                                  | ) |                                |
|                                  |   |                                |
|                                  | ) |                                |
+----------------------------------+---+--------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: March 29, 2006

By the District Director, New York Office, Northeast Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"*NAL*\"), we
    find that Cumulus Licensing, LLC ("Cumulus"), the licensee of FM
    Broadcast Radio station WZAD in Wurtsboro, New York, apparently
    willfully and repeatedly violated Section 73.1125(a) of the
    Commission\'s Rules (\"Rules\")[^1] by failing to maintain a
    management or staff presence at WZAD's main studio. We conclude,
    pursuant to Section 503(b) of the Communications Act of 1934, as
    amended ("Act")[^2], that Cumulus is apparently liable for a
    forfeiture in the amount of seven thousand dollars (\$7,000).

# BACKGROUND

2.  On September 9, 2005, in preparation for a routine broadcast
    inspection, an agent from the Commission's New York Office contacted
    WZAD's station manager and business manager to obtain the address
    and telephone number for WZAD's main studio. The station manager
    stated that the main studio is a small studio in Wurtsboro, but that
    all the station's activities, including program origination, are
    conducted from Cumulus's studio facilities in Poughkeepsie, New
    York. The agent called the local phone number received from WZAD's
    station manager several times during regular business hours on
    September 9, 2005, and each time there was no answer. The agent made
    arrangements with WZAD's contract engineer to inspect the main
    studio in Wurtsboro, New York.

3.  On September 13, 2005, the agent conducted an inspection of WZAD's
    main studio located at 139 Sullivan Street, Wurtsboro, New York,
    12790, with WZAD's contract engineer. The agent and the contract
    engineer arrived at the studio together during regular business
    hours. The agent observed that the door was locked and the lights
    were off. The contract engineer went to the business next door and
    returned with a woman who had the key to the studio. Both the
    contract engineer and the woman from the business next door stated
    that there had been no presence at the studio since some time
    in 2004. The agent observed minimal studio broadcast equipment and a
    transmitter for a studio-to-transmitter link that would allow the
    studio to go on the air if necessary. All equipment was powered off
    and it did not appear to the agent that anyone had been in the
    studio recently.[^3] To confirm that the telephone number he had
    called on September 9, 2005 was correct, the agent, using a cell
    phone, called the number he previously had called for the main
    studio and he heard the phone in the studio ring. The agent advised
    Cumulus's contract engineer of the violation for failure to maintain
    a staff presence at the main studio.

4.  On October 11, 2005, the agent spoke by telephone with WZAD's
    station manager and advised him of Cumulus's violation for failure
    to maintain a staff presence at WZAD's main studio. In response to
    questions from the agent, the station manager stated that the
    Wurtsboro studio is not currently staffed, but that he believed
    there was a sufficient presence at the studio because the woman from
    the business next door had a key. He stated, however, that he would
    make arrangements to provide staff for that location.

5.  On October 17, 2005, the agent spoke by telephone with WZAD's
    business manager, who stated that she believed that the last time
    someone worked at the Wurtsboro studio was November or December of
    2004.

# DISCUSSION

6.  Section 503(b) of the Act provides that any person who willfully or
    repeatedly fails to comply substantially with the terms and
    conditions of any license, or willfully or repeatedly fails to
    comply with any of the provisions of the Act or of any rule,
    regulation or order issued by the Commission thereunder, shall be
    liable for a forfeiture penalty. The term \"willful\" as used in
    Section 503(b) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^4] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^5]

7.  Section 73.1125(a) of the Rules generally requires broadcast
    stations to maintain a main studio at one of the following
    locations: (i) within the station\'s community of license; (ii) at
    any location within the principal community contour of any AM, FM,
    TV broadcast station licensed to the station\'s community of
    license; or (iii) within twenty-five miles from the reference
    coordinates of the center of its community of license. The
    station\'s main studio must serve the needs and interests of the
    residents of the station\'s community of license. To fulfill this
    function, a station must, among other things, maintain a meaningful
    management and staff presence at its main studio.[^6] The Commission
    has defined a minimally acceptable \"meaningful presence\" as
    full-time managerial and full-time staff personnel.[^7] In addition,
    there must be \"management and staff presence\" on a full-time basis
    during normal business hours to be considered \"meaningful.\"
    Although management personnel need not be \"chained to their desks\"
    during normal business hours, they must \"report to work at the main
    studio on a daily basis, spend a substantial amount of time there
    and...use the studio as a \'home base.\'\"[^8]

8.  An investigation by an FCC agent showed that there was no staff or
    management presence at the WZAD main studio in Wurtsboro, NY during
    normal business hours. There was no answer at the main studio when
    the agent called during normal business hours on September 9, 2005.
    During the September 13, 2005 inspection, which took place during
    normal business hours, the studio was locked, the lights were out,
    and all of the equipment was powered off. In addition, the station
    manager, the business manager, and the contract engineer for Cumulus
    admitted to the agent that no one had been stationed at the
    Wurtsboro studio since some time in 2004. Based on the evidence
    before us, we find that Cumulus apparently willfully and repeatedly
    violated Section 73.1125(a) of the Rules by failing to maintain a
    management and staff presence at the WZAD main studio.

9.  Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* (\"*Forfeiture Policy Statement*\"), and Section 1.80
    of the Rules, the base forfeiture amount for violation of the main
    studio rule is \$7,000.[^9] In assessing the monetary forfeiture
    amount, we must also take into account the statutory factors set
    forth in Section 503(b)(2)(D) of the Act, which include the nature,
    circumstances, extent, and gravity of the violations, and with
    respect to the violator, the degree of culpability, and history of
    prior offenses, ability to pay, and other such matters as justice
    may require.[^10] Applying the *Forfeiture Policy Statement*,
    Section 1.80, and the statutory factors to the instant case, we
    conclude that Cumulus is apparently liable for a (\$7,000)
    forfeiture.

# ORDERING CLAUSES

10. Accordingly**, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, 0.314 and 1.80 of the Commission\'s Rules, Cumulus Licensing,
    LLC is hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A
    FORFEITURE** in the amount of seven thousand dollars (\$7,000) for
    violations of Section 73.1125(a) of the Rules.[^11]

11. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules within thirty days of the release date of this
    Notice of Apparent Liability for Forfeiture, Cumulus Licensing, LLC
    **SHALL PAY** the full amount of the proposed forfeiture or **SHALL
    FILE** a written statement seeking reduction or cancellation of the
    proposed forfeiture.

12. Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission.  The payment must include the NAL/Acct. No. and FRN No.
    referenced above.  Payment by check or money order may be mailed to
    Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911-6106.

13. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Northeast Region, New York Office,
    201 Varick Street, New York, NY 10014 and must include the NAL/Acct.
    No. referenced in the caption.

14. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices (\"GAAP\"); or (3) some other reliable
    and objective documentation that accurately reflects the
    petitioner's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

15. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Associate Managing Director, Financial Operations, 445 12th
    Street, S.W., Room 1A625, Washington, D.C. 20554.[^12]

16. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Cumulus Licensing, LLC at
    its address of record.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director,

New York Office

Northeast Region

Enforcement Bureau

[^1]: 47 C.F.R. § 73.1125.

[^2]: 47 U.S.C. § 503(b).

[^3]: The agent found, however, a complete public inspection file,
    including a copy of a waiver permitting Cumulus to maintain WZAD's
    EAS equipment at its Poughkeepsie studio.

[^4]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that \"\[t\]he term \'willful\', when
    used with reference to the commission or omission of any act, means
    the conscious and deliberate commission or omission of such act,
    irrespective of any intent to violate any provision of this Act or
    any rule or regulation of the Commission authorized by this
    Act....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^5]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that \"\[t\]he term
    \'repeated\', when used with reference to the commission or omission
    of any act, means the commission or omission of such act more than
    once or, if such commission or omission is continuous, for more than
    one day."

[^6]: *See Main Studio and Program Origination Rules*, 3 FCC Rcd 5024,
    5026 (1988).

[^7]: *Jones Eastern of the Outer Banks, Inc.*, 6 FCC Rcd 3615, 3616 and
    n.2 (1992), clarified, 7 FCC Rcd 6800 (1992).

[^8]: *Jones Eastern of the Outer Banks, Inc.,* 7 FCC Rcd 6800, 6802
    (1992).

[^9]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^10]: 47 U.S.C. § 503(b)(2)(D).

[^11]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    73.1125(a).

[^12]: *See* 47 C.F.R. § 1.1914.