**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

J4 Broadcasting of Cincinnati, Inc. ) File No. EB-01-DT-657

) NAL/Acct. No. 200232360007

Licensee of Station WCIN(AM) ) FRN 0004-2892-60

Cincinnati, Ohio )

## FORFEITURE ORDER 

**Adopted: February 4, 2003 Released: February 6, 2003**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of five thousand dollars (\$5,000) to J4
    Broadcasting of Cincinnati, Inc. ("J4 Broadcasting"), licensee of
    Station WCIN(AM), Cincinnati, Ohio, for willful and repeated
    violation of Sections 73.51(e)(2) and 73.1560(a)(1) of the
    Commission's Rules ("Rules").[^1] The noted violations involve J4
    Broadcasting's failure to maintain a record of the station's
    efficiency factor "*F*" used to determine operating power and
    operation of WCIN with power in excess of 105% of the authorized
    power.

2.  On June 20, 2002, the Commission's Detroit, Michigan Field Office
    ("Detroit Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to J4 Broadcasting for a forfeiture in the
    amount of five thousand dollars (\$5,000).[^2] J4 Broadcasting filed
    a response to the *NAL* on August 20, 2002.

####  II. BACKGROUND

3.  In 1996, after being evicted from its authorized transmitter site,
    J4 Broadcasting requested and was granted Special Temporary
    Authorization ("STA") to operate WCIN from a temporary site at
    reduced power while it located a permanent site. In 1997, after J4
    Broadcasting located a permanent site for WCIN and filed an
    application for a construction permit to relocate WCIN to that
    site,[^3] the Commission staff granted J4 Broadcasting's request for
    STA to operate from the proposed permanent site with a daytime
    non-directional power of 250 watts and a nighttime non-directional
    power of 15 watts. The Commission staff has granted J4 Broadcasting
    numerous extensions of this STA since that time.

4.  On September 19, 2000, the Commission received a complaint alleging,
    among other things, that WCIN was operating with power in excess of
    its authorized power during both daytime and nighttime hours.

5.  On September 26, 2000, an agent from the Detroit Office monitored
    and made field strength measurements of WCIN. On September 27, 2000,
    the agent again made field strength measurements of WCIN and then
    inspected WCIN. The agent found numerous rule violations, including
    violations of Sections 73.51(e)(2) and 73.1560(a)(1) (failure to
    maintain a record of the station's efficiency factor "*F*" and
    operation of the station with power in excess of 105% of the
    authorized daytime and nighttime power limits).

6.  On November 27, 2000, the Detroit Office issued a Notice of
    Violation ("NOV") to J4 Broadcasting for numerous rule violations,
    including the violations of Sections 73.51(e)(2) and 73.1560(a)(1).
    J4 Broadcasting submitted a response to the NOV on December 6, 2000,
    detailing the actions it was taking to remedy the violations, and
    supplemented this response on December 9, 2000.

7.  On November 7, 2001, the Detroit Office received another complaint
    alleging that WCIN was operating with power in excess of its
    authorized daytime and nighttime power limits.

8.  On January 16, 2002, and again on January 17, 2002, agents from the
    Detroit Office monitored and made field strength measurements of
    WCIN both prior to and after sunset. The field strength measurements
    taken by the agents indicated that WCIN was operating in excess of
    105% of its authorized power during both daytime and nighttime
    operation. Specifically, the agents determined that WCIN was
    operating at 2070 watts during both daytime and nighttime operation,
    which was approximately 828% of the daytime power of 250 watts and
    approximately 13,800% of the nighttime power of 15 watts permitted
    by the STA.[^4] The agents also inspected WCIN on January 17, 2002.
    The inspection revealed, among other things, that the station did
    not have a record of the efficiency factor "*F*" used to determine
    the operating power, station personnel were not monitoring the
    station's operating power, and station personnel did not know how to
    determine the station's operating power or how to switch to
    nighttime power.

9.  On January 22, 2002, J4 Broadcasting sent a letter to the Detroit
    Office addressing some of the violations noted at the time of the
    inspection. On March 22, 2002, the Detroit Office issued an NOV to
    J4 Broadcasting for numerous rule violations, including the subject
    violations before us. On April 5, 2002, the Detroit Office received
    J4 Broadcasting's response to the NOV, which described the actions
    it was taking to correct the violations.

10. On June 20, 2002, the Detroit Office issued an *NAL* finding J4
    Broadcasting apparently liable for a \$5,000 forfeiture for failure
    to maintain a record of the station's efficiency factor "*F*" used
    to determine operating power in willful and repeated violation of
    Section 73.51(e)(2) of the Rules and operation of WCIN with power in
    excess of 105% of the authorized power in willful and repeated
    violation of Section 73.1560(a)(1) of the Rules. In its response to
    the *NAL*, J4 Broadcasting does not dispute that it violated these
    rules. However, J4 Broadcasting requests cancellation of the
    proposed forfeiture and submits its tax returns for 1999, 2000 and
    2001 in support of this request.

```{=html}
<!-- -->
```
III. **DISCUSSION**

```{=html}
<!-- -->
```
11. The forfeiture amount in this case was assessed in accordance with
    Section 503(b) of the Communications Act of 1934, as amended,
    ("Act"),[^5] Section 1.80 of the Rules,[^6] and *The Commission's
    Forfeiture Policy Statement and Amendment of Section 1.80 of the
    Rules to Incorporate the Forfeiture Guidelines*, 12 FCC Rcd 17087
    (1997), *recon. denied*, 15 FCC Rcd 303 (1999) ("*Policy
    Statement*"). In examining J4 Broadcasting's response, Section
    503(b) of the Act requires that the Commission take into account the
    nature, circumstances, extent and gravity of the violation and, with
    respect to the violator, the degree of culpability, any history of
    prior offenses, ability to pay, and other such matters as justice
    may require.[^7]

12. Section 73.51(e)(2) of the Rules requires that a record of the
    efficiency factor "*F*" used in determining a station's operating
    power be kept in the station's records. Without a record of the
    efficiency factor, a station is unable to determine its operating
    power using the indirect method and therefore is unable to determine
    whether it is operating at its authorized power levels. J4
    Broadcasting does not dispute that it failed to maintain a record of
    the efficiency factor "*F*" in its station records. Accordingly, we
    conclude that J4 Broadcasting willfully[^8] and repeatedly[^9]
    violated Section 73.51(e)(2) of the Rules.

13. Section 73.1560(a)(1) of the Rules provides that a station may not
    operate in excess of 105% of its authorized power. J4 Broadcasting
    does not dispute that it operated WCIN in excess of 105% of the
    authorized daytime and nighttime power. Accordingly, we conclude
    that J4 Broadcasting willfully and repeatedly violated Section
    73.1560(a)(1) of the Rules.

14. Although J4 Broadcasting does not specifically assert that it is
    unable to pay the \$5,000 forfeiture proposed in the *NAL* for these
    violations, it requests cancellation of the forfeiture and submits
    copies of its tax returns for 1999, 2000 and 2001 in support of this
    request. The Commission has repeatedly held that a company's gross
    revenues are the best indicator of its ability to pay a
    forfeiture.[^10] After considering the financial information
    submitted by J4 Broadcasting, we conclude that its gross revenues
    are sufficient to enable it to pay a \$5,000 forfeiture.

15. We have examined J4 Broadcasting's response to the *NAL* pursuant to
    the statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that J4
    Broadcasting willfully and repeatedly violated Sections 73.51(e)(2)
    and 73.1560(a)(1) of the Rules, and we find no basis to rescind or
    reduce the forfeiture proposed for these violations.

####  IV. ORDERING CLAUSES

16. Accordingly, **IT IS ORDERED** that, pursuant to Section 503 of the
    Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^11] J4
    Broadcasting of Cincinnati, Inc. **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of five thousand dollars (\$5,000) for
    willful and repeated violations of Sections 73.51(e)(2) and
    73.1560(a)(1) of the Rules.

17. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules within 30 days of the release of this
    *Order*. If the forfeiture is not paid within the period specified,
    the case may be referred to the Department of Justice for collection
    pursuant to Section 504(a) of the Act.[^12] Payment may be made by
    mailing a check or similar instrument, payable to the order of the
    Federal Communications Commission, to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should reference NAL/Acct. No. 200232360007 and FRN
    0004-2892-60. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Operations Group,
    445 12th Street, S.W., Washington, D.C. 20554.[^13]

18. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by first class mail and certified mail, return receipt requested, to
    J4 Broadcasting of Cincinnati, Inc., 3540 Reading Road, Cincinnati,
    Ohio 45229.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 73.51(e)(2) and 73.1560(a)(1).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200232360007 (Enf. Bur., Detroit Office, released June 20, 2002).

[^3]: The Commission staff granted J4 Broadcasting's application for a
    construction permit on February 18, 1998 (File No. BP-19960531AD),
    but dismissed its application for a license to cover the
    construction permit (File No. 20010216ABA) on August 7, 2001, after
    finding that the special operating restrictions and conditions
    specified in the construction permit had not been satisfied. Thus,
    J4 Broadcasting's construction permit, which had expired on March
    15, 2001, was forfeited on August 7, 2001. J4 Broadcasting has since
    filed another application for a construction permit to relocate WCIN
    to the permanent site (File No. BP-20011015AGS). That application
    remains pending.

[^4]: At the time of the inspection, J4 Broadcasting's STA had actually
    expired. However, the Commission staff subsequently granted J4
    Broadcasting's request for another extension of its STA. Given that
    J4 Broadcasting has been operating WCIN pursuant to STA at reduced
    power for more than five years and that the Commission staff has
    denied J4 Broadcasting's requests to modify the STA to increase its
    daytime and nighttime power, the agents properly used the daytime
    and nighttime power levels set forth in the expired STA in
    determining that J4 Broadcasting was operating in excess of 105% of
    its authorized power levels.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 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,' ... 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).

[^9]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to forfeitures assessed pursuant to Section 503(b) of the
    Act, provides that "\[t\]he term 'repeated,' ... means the
    commission or omission of such act more than once or, if such
    commission or omission is continuous, for more than one day."

[^10]: *See Long Distance Direct, Inc.*, 15 FCC Rcd 3297, 3305 (2000);
    *PJB Communications of Virginia, Inc.*, 7 FCC Rcd 2088, 2089 (1991).
    The Commission has also stated that if gross revenues are
    sufficiently great, the existence of operating losses does not by
    itself mean that a company cannot afford to pay a forfeiture. *Id*.

[^11]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^12]: 47 U.S.C. § 504(a).

[^13]: *See* 47 C.F.R. § 1.1914.