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 Federal  Communications  Commission  DA  04-  396 
 Before  the  Federal  Communications  Commission 
 Washington,  DC  20554 


 In  the  Matter  of 
 SAGA  COMMUNICATIONS  OF  NEW  ENGLAND,  INC. 


 Licensee  of  Station  WLZX(  FM),  Northampton,  Massachusetts 
 and 
 WESTERN  MASS  RADIO  COMPANY 
 Licensee  of  Station  WRNX(  FM),  Amherst,  Massachusetts 


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 File  No.  EB-  01-  IH-  0230  NAL  Account  No.  20043208000014 
 Facility  ID  No.  46963  FRN  No.  0002749406 


 Facility  ID  No.  25906  FRN  No.  0003763935 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  February  17,  2004  Released:  February  19,  2004 
 By  the  Chief,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL),  we  find  that,  on  January  25,  2001,  Saga  Communications  of  New  England,  Inc.  (  Saga),  licensee  of  Station  WLZX(  FM), 


 Northampton,  Massachusetts,  apparently  willfully  violated  section  73.1206  of  the  Commissions  rules  by  recording  and  broadcasting  a  telephone  conversation  without  first  notifying  a  party  to  the  call  of  its 
 intention  to  do  so.  1  Based  upon  our  review  of  the  facts  and  circumstances  in  this  case,  and  for  the  reasons  discussed  below,  we  conclude  that  Saga  is  apparently  liable  for  a  monetary  forfeiture  in  the  amount  of 
 Four  Thousand  Dollars  ($  4,000.00).  Further,  we  deny  a  complaint  filed  by  Saga  against  Western  Mass  Radio  Company  (  Western),  licensee  of  Station  WRNX(  FM),  Amherst,  Massachusetts,  for  abuse  of 
 Commission  processes  and  attempted  unauthorized  transfer  of  control,  and  dismiss  Sagas  request  for  a  revocation  proceeding  against  Western. 


 II.  BACKGROUND 
 2.  The  Commission  received  a  complaint  from  Western  alleging  that,  on  January  25,  2001,  Saga  broadcast  a  telephone  conversation  between  Station  WLZX(  FM)  radio  personality  Christopher 


 Laursen  and  Station  WRNX(  FM)  radio  personality  Dave  Sears.  2  According  to  the  complaint,  Mr.  Laursen  called  Mr.  Sears  and  pretended  to  be  a  WRNX  listener.  Mr.  Laursen  asked  Mr.  Sears  whether 


 1  47  C.  F.  R.    73.1206. 
 2  See  Letter  from  Thomas  G.  Davis,  President,  Western  Mass  Radio  Company,  to  Magalie  Roman  Salas,  Secretary, 
 Federal  Communications  Commission,  dated  February  1,  2001  (  Western  Complaint). 
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 WRNX(  FM)  radio  personality  and  News  Director  Kelsey  Flynn  was  hot  and  if  she  was  a  lesbo.  3  This  conversation  was  broadcast  on  Station  WLZX(  FM).  The  complaint  alleged  that,  while  Station 
 WLZX(  FM)  General  Manager  and  Saga  Vice-  President  Lawrence  Goldberg  later  contacted  Western  President  Thomas  G.  Davis  to  apologize  for  the  incident,  Western  felt  that  a  private  apology  was 
 inadequate.  4  In  a  January  29,  2001,  electronic  message  from  Tom  Davis,  Western  Mass  Radio  to  Sean  Davey  and  Larry  Goldberg,  Saga  Communications,  Western  offered  to  settle  the  matter  if  Saga  agreed  to 
 the  following:  (1)  Mr.  Laursen  would  record  a  message,  written  by  Mr.  Davis,  apologizing  for  Mr.  Laursens  actions,  which  would  be  aired  on  Station  WLZX(  FM)  five  times  in  one  day  at  times  selected  by 
 Mr.  Davis;  (2)  Mr.  Laursen  would  not  discuss  the  incident  on  the  air  at  any  time,  other  than  during  the  recorded  message  of  apology;  (3)  the  apology  would  be  signed  and  published  in  the  Daily  Hampshire 
 Gazette  and  Union  News  three  times  in  clear  view;  (4)  Saga  would  donate  $1,000.00  to  a  charity  of  Kelsey  Flynns  choice,  and  the  donation  would  be  announced  in  the  apology.  5  Western  informed  Saga 
 that  [  y]  ou  certainly  have  the  right  to  decline,  in  which  case  we  will  place  the  issue  in  the  hands  of  the  FCC  and  allow  them  to  take  it  to  its  ultimate  resolution,  whatever  that  may  be.  6 


 3.  After  reviewing  the  complaint,  we  issued  a  letter  of  inquiry  to  Saga.  We  asked  the  licensee  whether  Station  WLZX(  FM)  had  recorded  and  later  replayed  such  a  conversation  between  a 
 Station  WLZX(  FM)  radio  personality  and  a  Station  WRNX(  FM)  radio  personality.  We  also  asked  whether  Station  WLZX(  FM)  personnel  had  provided  the  Station  WRNX(  FM)  radio  personality  prior 
 notification  that  Station  WLZX(  FM)  intended  to  record  and  broadcast  the  conversation.  Additionally,  we  asked  Saga  to  provide  any  other  pertinent  details  that  would  explain  or  clarify  the  matter.  7 


 4.  Before  Saga  responded  to  the  LOI,  on  March  13,  2001,  it  filed  a  complaint  against  Western  alleging  extortion,  blackmail  and  abuse  of  process,  as  well  as  an  attempted  unauthorized  transfer 
 of  control.  8  Saga  claimed  that  Western  had  attempted  to  blackmail  Saga  by  demanding  money  and  free  airtime  under  a  threat  of  informing  the  Commission  of  Sagas  violation  of  the  Commissions  rules.  9  Saga 
 also  claimed  that  accommodating  Westerns  requests  that  it  read  a  written  apology  over  the  air  as  well  as  not  discuss  the  incident  on-  air  amounted  to  an  attempted  unauthorized  transfer  of  control,  which  would 
 have  required  Saga  to  abdicate  control  of  basic  operating  policies  in  violation  of  section  310(  d)  of  the  Communications  Act  of  1934  as  amended  (the  Act).  10  Saga  requests  that  the  Commission  initiate  an 
 enforcement  proceeding  and  issue  an  order  to  show  cause  under  Section  312  of  the  Act,  11  and  that  Saga  be  made  a  party  to  the  revocation  proceeding.  12 


 5.  In  its  March  15,  2001,  LOI  Response,  Saga  admitted  that  Station  WLZX(  FM)  aired  a  recorded  conversation  between  Mr.  Laursen  and  Mr.  Sears  on  January  25,  2001,  without  obtaining  Mr. 


 3  Id.  at  1. 
 4  Western  Complaint  at  2. 
 5  Id.  at  2,  Attachment. 
 6  Id. 
 7  See  Letter  from  Charles  W.  Kelley,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  Federal 
 Communications  Commission,  to  Saga  Communications  of  New  England,  Inc.,  dated  February  14,  2001  (  LOI).  8 
 See  Letter  from  Lawrence  D.  Goldberg,  Vice  President,  Saga  Communications  of  New  England,  Inc.,  to  Magalie  Roman  Salas,  Secretary,  Federal  Communications  Commission,  dated  March  8,  2001.  (  Saga  Complaint). 


 9  See  id.  at  2-  3. 
 10  See  id.  at  3-  4;  47  U.  S.  C.    310(  d). 
 11  47  U.  S.  C.    312 
 12  See  Saga  Complaint  at  4. 
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 Sears  permission,  13  but  that  it  subsequently  made  Mr.  Laursen  aware  of  the  requirements  of  section  73.1206  of  the  Commissions  rules.  Saga  further  stated  that  Mr.  Laursen  knew  it  was  wrong  to  record  his 
 telephone  conversation  with  Mr.  Sears  and  broadcast  it  without  Mr.  Sears  permission,  and  that  Mr.  Laursens  actions  were  conceived  on  the  spur  of  the  moment,  without  approval  of  any  Saga  management 
 personnel.  14  Saga  maintained  that  it  suspended  Mr.  Laursen  and  his  co-  host  for  a  week  without  pay  after  Saga  had  learned  of  the  incident,  and  further  provided  its  employees  with  a  list  of  Commission  rules,  with 
 which  it  required  all  employees  to  familiarize  themselves.  According  to  Saga,  Western  refused  to  accept  its  private  apology  for  the  incident,  instead  sending  Saga  the  electronic  mail  message  with  what  Saga 
 refers  to  as  a  list  of  non-  negotiable  demands.  15 
 6.  In  its  March  20,  2001,  reply  to  the  Saga  Complaint  and  LOI  Response,  16  Western  stated  that  Saga  admits,  first,  that  Station  WLZX(  FM)  recorded  and  broadcast  the  conversation  between  Mr. 


 Laursen  and  Mr.  Sears  without  notifying  Mr.  Sears  that  the  conversation  was  being  recorded  and  going  to  be  broadcast  and,  second,  that  Saga  and  its  employee,  Mr.  Laursen,  knew  the  Commissions  rules 
 prohibited  such  conduct.  17  According  to  Western,  Sagas  Complaint  was  so  groundless,  unwarranted  in  law  or  fact,  and  so  flagrantly  contrived    as  to  warrant  sanctions  against  [Saga]  for  frivolous  pleading.  18 
 The  electronic  mail  message,  Western  contended,  merely  recite[  d]  the  terms  for  a  proposed  settlement  of  Western  Mass  grievance  against  Saga  for  what  Saga  [  ]  admit[  ed]  was  an  indefensible  violation  of  the 
 Commissions  rules.  19  Western  maintained  that  to  assert  that  its  proposed  settlement  constituted  an  attempted  unauthorized  transfer  of  control  was  hyperbolic  and  silly,  and  the  settlement  clearly  stated 
 that  Saga  had  a  right  to  decline  Westerns  offer.  Western  stated  that  it  was  not  an  abuse  of  process,  blackmail  or  extortion  for  a  victim  of  wrongdoing  to  approach  the  perpetrator  seeking  restitution,  and  if 
 refused,  to  pursue  his  remedies  at  law.  20  The  broadcast  licensee,  according  to  Western,  was  ultimately  responsible  for  exercising  control  and  oversight  over  its  employees  and,  therefore,  was  liable  for  its 
 employees  violation  of  section  73.1206  of  the  Commission  rules.  21 
 III.  DISCUSSION 
 A.  Sagas  Apparent  Violation  of  Section  73.1206  of  the  Commissions  Rules 
 7.  Under  section  503(  b)(  1)  of  the  Act,  22  any  person  who  is  determined  by  the  Commission 


 13  See  Letter  from  Lawrence  D.  Goldberg,  Vice  President,  Saga  Communications  of  New  England,  Inc.,  to  Charles 
 W.  Kelley,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  Federal  Communications  Commission,  dated  March  16,  2001(  LOI  Response);  Declaration  of  Christopher  Laursen  dated  March  14,  2001 


 provided  therewith  (  Laursen  Declaration).  14 
 Id.  at  1;  Laursen  Declaration.  15 
 Id.  at  2;  Laursen  Declaration.  16 
 See  Letter  from  Erwin  G.  Krasnow,  Verner,  Liipfert,  Bernhard,  McPherson  and  Hand,  to  Charles  W.  Kelley,  Chief,  Investigations  and  Hearings  Division,  Enforcement  Bureau,  Federal  Communications  Commission,  dated 


 March  20,  2001  (  Western  Reply).  17 
 Id.  at  1.  18 
 Id.  at  2.  19 
 Id.  20 
 Id.  at  2-  3.  21 
 Id.  at  3.  22 
 47  U.  S.  C.    503(  b)(  1)(  B);  47  C.  F.  R.    1.80(  a)(  1);  see  also  47  U.  S.  C.    503(  b)(  1)(  D)  (forfeitures  for  violation  of  14  U.  S.  C.    1464).  Section  312(  f)(  1)  of  the  Act  defines  willful  as  the  conscious  and  deliberate  commission  or 


 omission  of  [any]  act,  irrespective  of  any  intent  to  violate  the  law.  47  U.  S.  C.    312(  f)(  1).  The  legislative  history  to  (continued....) 
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 to  have  willfully  or  repeatedly  failed  to  comply  with  any  provision  of  the  Act  or  any  rule,  regulation,  or  order  issued  by  the  Commission  shall  be  liable  to  the  United  States  for  a  monetary  forfeiture  penalty.  In 
 order  to  impose  such  a  forfeiture  penalty,  the  Commission  must  issue  a  notice  of  apparent  liability,  the  notice  must  be  received,  and  the  person  against  whom  the  notice  has  been  issued  must  have  an 
 opportunity  to  show,  in  writing,  why  no  such  forfeiture  penalty  should  be  imposed.  23  The  Commission  will  then  issue  a  forfeiture  if  it  finds  by  a  preponderance  of  the  evidence  that  the  person  has  violated  the 
 Act  or  a  Commission  rule.  24  As  we  set  forth  in  greater  detail  below,  we  conclude  under  this  standard  that  Saga  is  apparently  liable  for  a  forfeiture  for  its  apparent  willful  violation  of  section  73.1206  of  the 
 Commissions  rules. 
 8.  Section  73.1206  of  the  Commissions  rules  provides,  in  pertinent  part: 
 Before  recording  a  telephone  conversation  for  broadcast  .  .  .  a  licensee  shall  inform  any  party  to  the  call  of  the  licensees  intention  to  broadcast  the  conversation,  except  where 


 such  party  is  aware,  or  may  be  presumed  to  be  aware  from  the  circumstances  of  the  conversation,  that  it  is  being  or  likely  will  be  broadcast.  Such  awareness  is  presumed  to 
 exist  only  when  the  other  party  to  the  call  is  associated  with  the  station  (such  as  [sic]  employee  or  part-  time  reporter),  or  where  the  other  party  originates  the  call  and  it  is 
 obvious  that  it  is  in  connection  with  a  program  in  which  the  station  customarily  broadcasts  telephone  conversations. 


 Thus,  section  73.1206  requires  licensees  to  so  notify  parties  to  a  telephone  call  before  it  initiates  recordings  for  broadcast.  The  Commission  has  stated  that  [  t]  he  recording  of  such  conversation  with  the 
 intention  of  informing  the  other  party  later  --  whether  during  the  conversation  or  after  it  is  completed  but  before  it  is  broadcast  --  does  not  comply  with  the  Rule  .  .  .  .  25  The  rule  reflects  the  Commissions 
 longstanding  belief  that  prior  notification  is  essential  to  protect  individuals  legitimate  expectation  of  privacy,  as  well  as  to  preserve  their  dignity  by  avoidance  of  nonconsensual  broadcasts  of  their 
 conversations.  26  Thus,  the  Commission  has  held  that  the  prior  notification  requirement  ensures  the 


 (...  continued  from  previous  page)  section  312(  f)(  1)  of  the  Act  clarifies  that  this  definition  of  willful  applies  to  both  sections  312  and  503(  b)  of  the  Act, 
 H.  R.  Rep.  No.  97-  765,  97  th  Cong.  2d  Sess.  51  (1982),  and  the  Commission  has  so  interpreted  the  term  in  the  section  503(  b)  context.  See,  e.  g.,  Application  for  Review  of  Southern  California  Broadcasting  Co.,  Memorandum  Opinion 
 and  Order,  6  FCC  Rcd  4387,  4388  (1991)  (  Southern  California  Broadcasting  Co.).  The  Commission  may  also  assess  a  forfeiture  for  violations  that  are  merely  repeated,  and  not  willful.  See,  e.  g.,  Callais  Cablevision,  Inc.,  Grand 
 Isle,  Louisiana,  Notice  of  Apparent  Liability  for  Monetary  Forfeiture,  16  FCC  Rcd  1359  (2001)  (issuing  a  Notice  of  Apparent  Liability  for,  inter  alia,  a  cable  television  operators  repeated  signal  leakage).  Repeated  merely  means 
 that  the  act  was  committed  or  omitted  more  than  once,  or  lasts  more  than  one  day.  Southern  California  Broadcasting  Co.,  6  FCC  Rcd  at  4388,    5;  Callais  Cablevision,  Inc.,  16  FCC  Rcd  at  1362,    9. 
 23  47  U.  S.  C.    503(  b);  47  C.  F.  R.    1.80(  f). 
 24  See,  e.  g.,  SBC  Communications,  Inc.,  Apparent  Liability  for  Forfeiture,  Forfeiture  Order,  17  FCC  Rcd  7589,  7591, 
   4  (2002)  (forfeiture  paid).  25 
 Station-  Initiated  Telephone  Calls  which  Fail  to  Comply  with  Section  73.  1206  of  the  Rules,  Public  Notice,  35  FCC  2d  940,  941  (1972)  (  1972  Public  Notice). 


 26  See  Amendment  of  Section  1206:  Broadcast  of  Telephone  Conversations,  3  FCC  Rcd  5461,  5463-  64  (1988) 
 (  1988  Order);  1972  Public  Notice,  35  FCC  2d  at  941;  Amendment  of  Part  73  of  the  Commissions  Rules  and  Regulations  with  Respect  to  the  Broadcast  of  Telephone  Conversations,  23  FCC  2d  1,  2  (1970);  see  also  EZ 


 Sacramento,  Inc.  and  Infinity  Broadcasting  Corp.  of  Washington,  D.  C.,  16  FCC  Rcd  4958,  4958  (2002)  (finding  that  prior  notifications  effectively  cease  when  callers  are  put  on  hold,  and  that  thus  explicit  notice  must  be  given  if 
 stations  plan  to  continue  such  broadcasts  or  record  such  conversations  for  later  broadcasts);  Heftel  Broadcasting-Contemporary,  Inc.,  52  FCC  2d  1005,  1006  (1975)  (finding  that  cash  call  promotions  that  simultaneously 
 (continued....) 
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 protection  of  an  individuals  right  to  answer  the  telephone  without  having  [his  or  her]  voice  or  statements  transmitted  to  the  public  by  a  broadcast  station  live  or  by  recording  for  delayed  airing.  27 
 Applying  this  reasoning,  the  Commission  has  defined  conversations  broadly,  to  include  any  word  or  words  spoken  during  the  telephone  call,  and  specifically  has  rejected  arguments  that  utterances  made  by 
 parties  called  in  answering  the  phone  are  not  subject  to  the  rules  prior  notification  requirement.  28 


 9.  Based  upon  the  information  before  us,  it  appears  that,  on  January  25,  2001,  Saga  broadcast  the  conversation  between  Mr.  Laursen  and  Mr.  Sears,  without  providing  Mr.  Sears  prior  notice 
 that  Saga  intended  to  record  and  later  air  the  conversation,  in  apparent  willful  violation  of  section  73.1206  of  the  Commissions  rules.  In  light  of  this  apparent  violation,  we  believe  it  appropriate  that  Saga  be 
 assessed  a  monetary  forfeiture.  The  Commissions  Forfeiture  Policy  Statement  sets  a  base  forfeiture  amount  of  $4,000.00  for  the  unauthorized  broadcast  of  a  telephone  conversation  29  and  provides  that  base 
 forfeitures  may  be  adjusted  based  upon  consideration  of  the  factors  enumerated  in  section  503(  b)(  2)(  D)  of  the  Act  30  and  1.80(  a)(  4)  of  the  Commissions  rules,  31  which  include  the  nature,  circumstances,  extent, 
 and  gravity  of  the  violation  .  .  .  and  the  degree  of  culpability,  any  history  of  prior  offenses,  ability  to  pay,  and  such  other  matters  as  justice  may  require.  32  Based  upon  the  facts  and  circumstances  presented 
 here,  in  particular  because  this  appears  to  be  an  isolated  violation,  we  find  the  base  forfeiture  amount  of  Four  Thousand  Dollars  ($  4,000.00)  to  be  appropriate. 


 B.  Sagas  Complaint  Against  Western 
 10.  The  Commission  has  stated  that  [  a]  buse  of  process  is  a  broad  concept  that  includes  use  of  Commission  processes  to  achieve  a  result  that  the  process  was  not  intended  to  achieve,  or  use  of  that 


 process  to  subvert  the  purpose  the  process  was  intended  to  achieve.  33  In  Character  Qualifications,  the  Commission  further  defined  abuse  of  process  as  serious  willful  misconduct  which  directly  threatens 
 the  integrity  of  the  Commissions  licensing  processes.  34  Westerns  proposed  settlement  did  not  involve  the  Commissions  licensing  processes.  To  this  extent,  Sagas  reliance  on  Home  Service  Broadcasting 
 Corp.  is  misplaced.  35  More  importantly,  the  purpose  of  this  NAL  is  to  inform  a  licensee  that  [it]  has 
 (...  continued  from  previous  page)  broadcast,  and  award  prizes  based  on,  parties  responses  in  answering  the  telephone  are  subject  to  section  73.  1206s 
 prior  notification  requirement).  27 
 1988  Order,  3  FCC  Rcd  at  5463.  28 
 Heftel  Broadcasting-  Contemporary,  Inc.,  52  FCC  2d  at  1006  (emphasis  added).  29 
 See  Commissions  Forfeiture  Policy  Statement  and  Amendment  of  Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines,  12  FCC  Rcd  17087,  17113  (1997),  recon.  denied  15  FCC  Rcd  303  (1999)  (  Forfeiture  Policy 


 Statement).  30 
 47  U.  S.  C.    503(  b)(  2)(  D).  31 
 47  C.  F.  R.    1.80(  a)(  4).  32 
 Forfeiture  Policy  Statement,  12  FCC  Rcd  at  17100-  01.  33 
 Ronald  Brasher,  15  FCC  Rcd  16326,  16331  (2000)  (citing  Broadcast  Renewal  Applicants,  3  FCC  Rcd  5179,  5199  n.  2  (1988)). 


 34  Policy  Regarding  Character  Qualifications  in  Broadcast  Licensing,  102  FCC  2d  1179,  1211  (1986)  (emphasis 
 added).  35 
 Saga  Complaint  at  3,  citing  Home  Service  Broadcasting  Corp.,  24  FCC  2d  192,  193  (Rev.  Bd.  1970).  See,  also,  James  Sliger,  70  FCC  2d  1565  (Rev.  Bd.  1969)  (abuse  of  process  in  comparative  renewal  proceeding);  K.  O. 


 Communications,  Inc.,  13  FCC  Rcd  12765  (WTB  1998)  (abuse  of  process  when  strike  pleading  filed). 
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 failed  to  abide  by  the  provisions  of  the  Commissions  rules.  36  By  filing  its  complaint,  Western  contributed  to  the  Commissions  enforcement  scheme.  37 
 11.  Westerns  actions  further  do  not  constitute  blackmail.  38  Even  were  we  to  have  jurisdiction  to  adjudicate  this  allegation,  the  facts  indicate  that  Western  simply  sought  a  private  resolution 
 of  its  grievance.  The  record  does  not  indicate  that  Western  threatened  to  file  a  complaint  for  its  own  benefit,  monetary  or  otherwise.  With  respect  to  Westerns  request  that  Saga  contribute  to  a  charity  of 
 Kelsey  Flynns  choice,  Western  appears  only  to  have  sought  redress  for  the  damage  done  by  statements  potentially  impugning  its  employees  sexual  orientation. 


 12.  Sagas  claim  that  Western  attempted  to  acquire  control  of  Station  WLZX(  FM)  is  likewise  without  merit.  In  assessing  whether  an  unauthorized  transfer  of  control  has  occurred,  the  Commission 
 looks  at  whether  a  licensee  continues  to  have  ultimate  control  over  a  stations  programming,  personnel,  and  finances.  39  Proposing  that  Saga  broadcast  a  public  apology  five  times  on  one  day,  and  that  Saga  take 
 steps  to  prevent  its  employee  from  further  insulting  Westerns  radio  personality  does  not  constitute  an  attempt  to  control  the  basic  operating  policies  of  the  station,  as  Saga  maintains.  40 


 13.  The  Commission  does  not  recognize  a  formal  right  to  seek  revocation  of  a  license,  41  but  rather  treats  such  requests  as  informal  requests  for  action  pursuant  to  section  1.  41  of  the  Commissions 
 rules.  42  Saga  claims  that  Westerns  actions  evidence[]  a  lack  of  fitness  to  be  a  Commission  licensee  and  therefore  the  Commission  should  initiate  a  proceeding  requiring  Western  to  show  cause  why  its 
 license  for  WRNX(  FM)  should  not  be  revoked.  43  Because  we  reject  Sagas  claims,  Sagas  request  to  initiate  a  revocation  proceeding  is  dismissed  as  moot. 


 36  Duhamel  Broadcasting  Enterprises,  61  FCC  2d  365,  366  (1976). 
 37  Westerns  settlement  proposal  did  not  undermine  the  Commissions  enforcement  scheme  because  filing  a 
 complaint  is  voluntary,  and  only  one  method  of  initiating  an  enforcement  proceeding.  38 
 Saga  cites  to  18  U.  S.  C.    873,  which  makes  it  a  criminal  offense  to  demand  any  money  or  other  valuable  thing  under  a  threat  of  informing,  or  as  consideration  for  not  informing,  against  any  violation  of  federal  law. 


 39  See,  e.  g.,  Radio  Moultrie,  Inc.,  17  FCC  Rcd  24304  (2002). 
 40  See  id.  at  24306. 
 41  See,  e.  g.,  K.  O.  Communications,  Inc.,  13  FCC  Rcd  at  12775. 
 42  See  id.;  47  C.  F.  R.    1.41. 
 43  See  Saga  Complaint  at  4. 
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 IV.  ORDERING  CLAUSES 
 14.  Accordingly,  IT  IS  ORDERED  THAT,  pursuant  to  section  503(  b)  of  the  Act,  44  and  sections  0.111,  0.311  and  1.80  of  the  Commissions  rules,  45  Saga  Communications  of  New  England,  Inc., 


 licensee  of  Station  WLZX(  FM),  Northampton,  Massachusetts,  is  hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  A  FORFEITURE  in  the  amount  of  Four  Thousand  Dollars  ($  4,000)  for  apparently 
 willfully  violating  section  73.1206  of  the  Commissions  rules  on  January  25,  2001.  46 
 15.  IT  IS  FURTHER  ORDERED  THAT,  pursuant  to  Section  1.80  of  the  rules,  47  within  thirty  (30)  days  of  this  NOTICE  OF  APPARENT  LIABILITY,  Saga  Communications  of  New  England,  Inc. 


 SHALL  PAY  the  full  amount  of  the  proposed  forfeiture  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture.  Payment  of  the  forfeiture  may  be  made  by  mailing  a 
 check  or  similar  instrument,  payable  to  the  order  of  the  Federal  Communications  Commission,  to  Forfeiture  Collection  Section,  Finance  Branch,  Federal  Communications  Commission,  P.  O.  Box  73482, 
 Chicago,  Illinois  60673-  7482.  The  payment  must  include  the  FCC  Registration  Number  (FRN)  referenced  above  and  also  must  note  the  NAL/  Acct.  No.  referenced  above. 


 16.  Requests  for  payment  of  the  full  amount  of  this  Notice  of  Apparent  Liability  under  an  installment  plan  should  be  sent  to:  Chief,  Revenue  and  Receivables  Operations  Group,  445  12th  Street, 
 S.  W.,  Washington,  D.  C.  20554.  48 
 17.  Accordingly,  IT  IS  ORDERED  THAT  the  complaint  of  Western  Mass  Radio  Company  filed  against  Saga  Communications  of  New  England,  Inc.,  licensee  of  Station  WLZX(  FM),  Northampton, 


 Massachusetts,  is  GRANTED. 
 18.  IT  IS  FURTHER  ORDERED  THAT  the  complaint  of  Saga  Communications  of  New  England,  Inc.,  alleging  abuse  of  process,  blackmail,  and  attempted  acquisition  of  control  of  WLZX(  FM) 


 by  Western  Mass  Radio  Company,  licensee  of  Station  WRNX(  FM),  is  DENIED  for  the  reasons  set  forth  herein,  and  the  request  for  revocation  of  Station  WRNX(  FM)  s  license  is  DISMISSED. 


 19.  Under  the  Small  Business  Paperwork  Relief  Act  of  2002,  Pub  L.  No.  107-  198,  116  Stat.  729  (June  28,  2002),  the  FCC  is  engaged  in  a  two-  year  tracking  process  regarding  the  size  of  entities 
 involved  in  forfeitures.  If  you  qualify  as  a  small  entity  and  if  you  wish  to  be  treated  as  a  small  entity  for  tracking  purposes,  please  so  certify  to  us  within  thirty  (30)  days  of  this  NAL,  either  in  your  response  to 
 the  NAL  or  in  a  separate  filing  to  be  sent  to  the  Investigations  and  Hearings  Division.  Your  certification  should  indicate  whether  you,  including  your  parent  entity  and  its  subsidiaries,  meet  one  of  the  definitions 
 set  forth  in  the  list  provided  by  the  FCCs  Office  of  Communications  Business  Opportunities  (OCBO)  set  forth  in  Attachment  A  of  this  Notice  of  Apparent  Liability.  This  information  will  be  used  for  tracking 
 purposes  only.  Your  response  or  failure  to  respond  to  this  question  will  have  no  effect  on  your  rights  and  responsibilities  pursuant  to  Section  503(  b)  of  the  Communications  Act.  If  you  have  questions  regarding 
 any  of  the  information  contained  in  Attachment  A,  please  contact  OCBO  at  (202)  418-  0990. 
 20.  IT  IS  FURTHER  ORDERED  THAT  a  copy  of  this  NOTICE  OF  APPARENT  LIABILITY  shall  be  sent  by  Certified  Mail  -  Return  Receipt  Requested  to  Lawrence  D.  Goldberg,  Vice 


 President,  Saga  Communications  of  New  England,  Inc,  15  Hampton  Avenue,  Northampton, 
 44  47  U.  S.  C.    503(  b). 
 45  47  C.  F.  R.    0.  111,  0.311  and  1.  80. 
 46  47  C.  F.  R.    73.1206 
 47  47  C.  F.  R.    1.80. 
 48  47  C.  F.  R.    1.1914. 
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 Federal  Communications  Commission  DA  04-  396 
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 Massachusetts  01060;  its  counsel,  Gary  S.  Smithwick,  Esquire,  Smithwick  &  Belendiuk,  P.  C.,  5028  Wisconsin  Avenue,  N.  W.,  Suite  301,  Washington,  D.  C.  20016;  Thomas  G.  Davis,  President,  Western 
 Mass  Radio  Company,  98  Lower  Westfield  Road,  Holyoke,  Massachusetts,  01040;  and  its  counsel,  Erwin  G.  Krasnow,  Esquire,  Garvey  Schubert  Barer,  Fifth  Floor,  1000  Potomac  Street,  N.  W.,  Washington,  D.  C. 
 20007-  3501. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 David  H.  Solomon  Chief,  Enforcement  Bureau 
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 Federal  Communications  Commission  DA  04-  396 
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 Attachment  A 
 FCC  List  of  Small  Entities 
 As  described  below,  a  small  entity  may  be  a  small  organization,  a  small  governmental  jurisdiction,  or  a  small  business. 


 (1)  Small  Organization  Any  not-  for-  profit  enterprise  that  is  independently  owned  and  operated  and 
 is  not  dominant  in  its  field. 


 (2)  Small  Governmental  Jurisdiction  Governments  of  cities,  counties,  towns,  townships,  villages,  school  districts,  or 
 special  districts,  with  a  population  of  less  than  fifty  thousand. 


 (3)  Small  Business  Any  business  concern  that  is  independently  owned  and  operated  and 
 is  not  dominant  in  its  field,  and  meets  the  pertinent  size  criterion  described  below. 


 Industry  Type  Description  of  Small  Business  Size  Standards  Cable  Services  or  Systems 
 Cable  Systems  Special  Size  Standard    Small  Cable  Company  has  400,  000  Subscribers  Nationwide  or  Fewer 
 Cable  and  Other  Program  Distribution  Open  Video  Systems  $12.5  Million  in  Annual  Receipts  or  Less 


 Common  Carrier  Services  and  Related  Entities  Wireline  Carriers  and  Service  providers 
 Local  Exchange  Carriers,  Competitive  Access  Providers,  Interexchange  Carriers, 
 Operator  Service  Providers,  Payphone  Providers,  and  Resellers  1,500  Employees  or  Fewer 


 Note:  With  the  exception  of  Cable  Systems,  all  size  standards  are  expressed  in  either  millions  of  dollars  or  number  of  employees  and  are  generally  the  average  annual  receipts  or  the  average 
 employment  of  a  firm.  Directions  for  calculating  average  annual  receipts  and  average  employment  of  a  firm  can  be  found  in 
 13  CFR  121.104  and  13  CFR  121.106,  respectively. 
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 International  Services  International  Broadcast  Stations 
 International  Public  Fixed  Radio  (Public  and  Control  Stations) 
 Fixed  Satellite  Transmit/  Receive  Earth  Stations 
 Fixed  Satellite  Very  Small  Aperture  Terminal  Systems 
 Mobile  Satellite  Earth  Stations  Radio  Determination  Satellite  Earth  Stations 
 Geostationary  Space  Stations  Non-  Geostationary  Space  Stations 
 Direct  Broadcast  Satellites  Home  Satellite  Dish  Service 


 $12.5  Million  in  Annual  Receipts  or  Less 


 Mass  Media  Services  Television  Services 
 Low  Power  Television  Services  and  Television  Translator  Stations 
 TV  Auxiliary,  Special  Broadcast  and  Other  Program  Distribution  Services  $12  Million  in  Annual  Receipts  or  Less 
 Radio  Services  Radio  Auxiliary,  Special  Broadcast  and 
 Other  Program  Distribution  Services  $6  Million  in  Annual  Receipts  or  Less  Multipoint  Distribution  Service  Auction  Special  Size  Standard   
 Small  Business  is  less  than  $40M  in  annual  gross  revenues  for  three  preceding  years 
 Wireless  and  Commercial  Mobile  Services  Cellular  Licensees 


 220  MHz  Radio  Service    Phase  I  Licensees  1,500  Employees  or  Fewer  220  MHz  Radio  Service    Phase  II 
 Licensees  700  MHZ  Guard  Band  Licensees 


 Private  and  Common  Carrier  Paging 


 Auction  special  size  standard  -  Small  Business  is  average  gross  revenues  of  $15M  or  less  for 
 the  preceding  three  years  (includes  affiliates  and  controlling  principals) 
 Very  Small  Business  is  average  gross  revenues  of  $3M  or  less  for  the  preceding  three  years  (includes  affiliates  and 
 controlling  principals) 
 Broadband  Personal  Communications  Services  (Blocks  A,  B,  D,  and  E)  1,500  Employees  or  Fewer 


 Broadband  Personal  Communications  Services  (Block  C) 
 Broadband  Personal  Communications  Services  (Block  F) 
 Narrowband  Personal  Communications  Services 


 Auction  special  size  standard  -  Small  Business  is  $40M  or  less  in  annual  gross  revenues  for 
 three  previous  calendar  years  Very  Small  Business  is  average  gross  revenues  of  $15M  or 
 less  for  the  preceding  three  calendar  years  (includes  affiliates  and  persons  or  entities  that  hold  interest  in  such  entity  and 
 their  affiliates) 


 Rural  Radiotelephone  Service  Air-  Ground  Radiotelephone  Service  1,500  Employees  or  Fewer 
 800  MHz  Specialized  Mobile  Radio  Auction  special  size  standard  - 
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 900  MHz  Specialized  Mobile  Radio  Small  Business  is  $15M  or  less  average  annual  gross  revenues  for  three  preceding  calendar  years 
 Private  Land  Mobile  Radio  1,500  Employees  or  Fewer  Amateur  Radio  Service  N/  A 


 Aviation  and  Marine  Radio  Service  Fixed  Microwave  Services  1,500  Employees  or  Fewer 


 Public  Safety  Radio  Services 
 Small  Business  is  1,500  employees  or  less  Small  Government  Entities  has  population  of  less  than 


 50,000  persons 
 Wireless  Telephony  and  Paging  and  Messaging  1,500  Employees  or  Fewer 


 Personal  Radio  Services  N/  A  Offshore  Radiotelephone  Service  1,500  Employees  or  Fewer 


 Wireless  Communications  Services 
 39  GHz  Service 


 Small  Business  is  $40M  or  less  average  annual  gross  revenues  for  three  preceding  years 
 Very  Small  Business  is  average  gross  revenues  of  $15M  or  less  for  the  preceding  three  years 


 Multipoint  Distribution  Service 
 Auction  special  size  standard  (1996)    Small  Business  is  $40M  or  less  average  annual  gross 
 revenues  for  three  preceding  calendar  years 
 Prior  to  Auction    Small  Business  has  annual  revenue  of  $12.  5M  or  less 


 Multichannel  Multipoint  Distribution  Service 


 Instructional  Television  Fixed  Service  $12.5  Million  in  Annual  Receipts  or  Less 


 Local  Multipoint  Distribution  Service 
 Auction  special  size  standard  (1998)    Small  Business  is  $40M  or  less  average  annual  gross 
 revenues  for  three  preceding  years  Very  Small  Business  is  average  gross  revenues  of  $15M  or 
 less  for  the  preceding  three  years 


 218-  219  MHZ  Service 
 First  Auction  special  size  standard  (1994)    Small  Business  is  an  entity  that,  together  with  its  affiliates, 
 has  no  more  than  a  $6M  net  worth  and,  after  federal  income  taxes  (excluding  carryover  losses)  has  no  more  than  $2M  in 
 annual  profits  each  year  for  the  previous  two  years 
 New  Standard    Small  Business  is  average  gross  revenues  of  $15M  or  less  for 


 the  preceding  three  years  (includes  affiliates  and  persons  or  entities  that  hold  interest  in  such  entity  and  their  affiliates) 
 Very  Small  Business  is  average  gross  revenues  of  $3M  or  less  for  the  preceding  three  years  (includes  affiliates  and 
 persons  or  entities  that  hold  interest  in  such  entity  and  their  affiliates) 


 Satellite  Master  Antenna  Television  Systems  $12.5  Million  in  Annual  Receipts  or  Less 


 24  GHz    Incumbent  Licensees  1,500  Employees  or  Fewer  24  GHz    Future  Licensees  Small  Business  is  average  gross  revenues  of  $15M  or  less  for 
 the  preceding  three  years  (includes  affiliates  and  persons  or  entities  that  hold  interest  in  such  entity  and  their  affiliates) 
 Very  Small  Business  is  average  gross  revenues  of  $3M  or  less  for  the  preceding  three  years  (includes  affiliates  and 
 persons  or  entities  that  hold  interest  in  such  entity  and  their  affiliates) 


 Miscellaneous  On-  Line  Information  Services  $18  Million  in  Annual  Receipts  or  Less 


 Radio  and  Television  Broadcasting  and  Wireless  Communications  Equipment 
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 Manufacturers  Audio  and  Video  Equipment  Manufacturers  750  Employees  or  Fewer 
 Telephone  Apparatus  Manufacturers  (Except  Cellular)  1,000  Employees  or  Fewer 
 Medical  Implant  Device  Manufacturers  500  Employees  or  Fewer  Hospitals  $29  Million  in  Annual  Receipts  or  Less 
 Nursing  Homes  $11.5  Million  in  Annual  Receipts  or  Less  Hotels  and  Motels  $6  Million  in  Annual  Receipts  or  Less 
 Tower  Owners  (See  Lessees  Type  of  Business) 
12