******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) ) ) ) In the Matter of ) ) Hemmingford Media, Inc. ) NAL/Acct. No. 815AT0001 Radio Station WAPB(AM) ) Murfreesboro, TN ) ) FORFEITURE ORDER Adopted: February 17, 1999 Released: February 18, 1999 By the Director, Legal Services Group Compliance and Information Bureau: 1. Before the Compliance and Information Bureau ("CIB" or "Bureau") is a Notice of Apparent Liability ("NAL"), issued on May 22, 1998, to Hemmingford Media, Inc., ("Hemmingford" or "respondent") licensee of AM Station WAPB, Murfreesboro, Tennessee, and the response thereto, filed by Hemmingford on June 19, 1998, requesting that the Bureau dismiss the NAL, or, alternatively reduce the forfeiture amount. The NAL proposed imposition of a forfeiture against Hemmingford in the amount of $11,000, pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C.  503(b) and Section 1.80 of the Commission's Rules ("the Rules"), 47 C.F.R.  1.80, for willful violations of Sections 73.1745, 73.3526, 11.35 and 73.1590(a) of the Rules, 47 C.F.R.  73.1745, 73.3526, 11.35 and 73.1590(a). For the reasons noted below, we will affirm the forfeiture amount of $11,000. BACKGROUND 2. On February 11, 1998, the Commission's Mass Media Bureau forwarded a complaint to CIB's Atlanta, Georgia, Field Office which alleged that WAPB was not reducing its nighttime power in accordance with its license. On February 26, 1998, Hemmingford was issued a warning letter by the Atlanta Field Office regarding its alleged failure to reduce WAPB's nighttime power at the time specified in its license. On March 16, 1998, the Atlanta Field Office sent a second warning letter, regarding the same alleged violation, by certified mail to Hemmingford. As evidenced by the signed receipt card, the letter was received on March 19, 1998. 3. On March 20, 1998, the District Director of the Atlanta Field Office received a call from the president of Hemmingford, Michael Leahy. Mr. Leahy refuted the allegations in the warning letter. He stated that WAPB was not operating at nighttime hours with its authorized daytime power. The Atlanta District Director notified Mr. Leahy that an FCC agent would probably stop by the WAPB facilities at some point to inspect the station and monitor its power. On May 5, 1998, an FCC agent monitored WAPB during the "power-down" time. On that date, the station's power was reduced one hour later than the time specified in WAPB's license. The next day the FCC agent inspected the station. In addition to the violation for not decreasing power at the authorized time, 47 C.F.R.  73.1745, the inspection revealed several other violations. These violations included a missing public inspection file, 47 C.F.R  73.3526, no EAS equipment, 47 C.F.R.  11.35, and no required annual equipment performance measurements 47 C.F.R.  73.1590(a). 4. As a result of the noted violations on May 22, 1998, the District Director of the Atlanta Field Office issued the subject NAL to Hemmingford in the amount of $11,000. DISCUSSION 5. Based on the violations, the Atlanta Field Office issued the forfeiture penalty pursuant to Section 503 of the Act, and Section 1.80 of the Rules. In assessing the forfeiture amount, the Bureau followed the forfeiture standards established in Section 503 of the Act 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. pending. 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. 47 U.S.C.  503(b)(2)(D). 6. In response to the NAL, the respondent makes several claims. First, respondent claims that the station's failure to power-down, on the date they were monitored by FCC agents, was an isolated incident, due to an unavoidable series of events. In that regard, respondent states that this violation was not willful, but was instead caused by accident or mistake. Second, respondent contends that the required annual equipment performance measurements had indeed been made, however, the measurements had been made by an independent contractual engineer and that engineer was not available at the time of the inspection to advise the agents of his measurements. Furthermore, they were unable to produce the measurements without the contractual engineer because they did not know how the records "should be maintained and communicated to an inspector conducting a surprise inspection on the station." Third, respondent claims that they do in fact maintain a public inspection file, although it is labeled "FCC file" rather than "Public Inspection File," the FCC agent therefore, incorrectly assumed that there was no public inspection file. Fourth, respondent states that EAS equipment was actually ordered for the station in January of 1997, not in 1998 as stated to the FCC agent during the inspection. They further claim that they were told that as long as the equipment was ordered by January of 1997 they would be in compliance with FCC regulations. Fifth, and finally, respondent asserts that the $11,000 forfeiture amount is excessive in relation to the size and resources of Hemmingford. Respondent claims that Hemmingford is eligible for a reduction in the forfeiture amount pursuant to the Small Business Regulatory Enforcement Fairness Act ("SBREFA"). 7. As an initial matter, we note that, notwithstanding respondent's misunderstanding regarding the term, the violation was indeed willful. Furthermore, in reply to respondent's defense that the station was not powered-down at the correct time due to a series of unavoidable events, including a part-time employee not trained in the process and the unavailability of a phone line, we remind respondent that responsibility for compliance with the terms of WAPB's license rests solely and exclusively with the licensee. See Empire Broadcasting Corp., 25 FCC 2d 68, 69 (1970). Neither of these events is a valid excuse for a licensee's failure to comply with his authorization. Likewise, the unavailability of the paid independent engineering consultant, who respondent claims took the required equipment measurements pursuant to Section 73.1590(a) of the Rules, is not an excuse for the licensee's failure to produce those measurements. Again, responsibility for compliance with the terms of WAPB's license rests solely and exclusively with the licensee and assessments made by a paid consultant in no way mitigate or relieve the responsibility of the licensee. The failure of the station employees to offer documentation of the measurements to the agents is a reasonable basis on which to determine that the measurements had not been taken. We also note that respondent did not later attempt to send such documentation to the FCC agents in order to dispute this violation, nor was such documentation included in the response before us. The lack of proof further strengthens the FCC's position that the measurements were not taken, and regardless, such information should always be available for agents during an inspection. 8. Respondent also claims that they do maintain a public inspection file at the station pursuant to Section 73.3526 of the Rules, but under a different file name. However, when the FCC agents requested the file, and described what the file would contain, the station operator had never heard of such a file. Section 73.3526(d) of the Commission's Rules requires that a licensee make the station's public inspection file available to a member of the public to peruse on request at any time during regular business hours. 47 C.F.R.  73.3526(d). Indeed, the FCC has made it clear that it "considers proper maintenance of a station's public inspection file an important obligation of a broadcast licensee." In re License Renewal Applications of Certain Commercial Radio Stations Serving Philadelphia, Pennsylvania, 8 FCC Rcd 6400, 6404 (1993). If the station employee is unaware that any such file exists, the very purpose of the public inspection file is defeated. In In re Applications of Fox Television Station, Inc., 8 FCC Rcd 2361, 2413 (1993), the Commission urged the licensee to "be vigilant in ensuring that the public's right of access to the ... public inspection file is not frustrated by uninformed employees." Thus, the responsibility for compliance with the terms of WAPB's license rests solely and exclusively with Hemmingford and such responsibility cannot be excused because of the ignorance of an employee or Hemmingford's unfamiliarity with the Commission's Rules. See James C. Vernon, 30 FCC 2d 456,457 (1971). 9. Hemmingford, as licensee of WAPB, was also required to have fully functioning EAS equipment operating at the station pursuant to Section 11.35 of the Commission's Rules. Respondent is correct in asserting that if the equipment was ordered by January of 1997, and the manufacturer is legitimately behind on filling the orders, the licensee could use the proof of purchase order from the manufacturer to demonstrate compliance. If Hemmingford did order the EAS equipment, however, a proof of purchase order was not shown to the FCC inspector, nor was it attached to the response to the NAL. 10. In regards to respondent's rationale for mitigation of the amount, based on its qualifications as a small business under SBREFA, respondent has failed to document this claim with supporting tax returns, or any other financial or business documents. See 47 C.F.R.  1.80(f)(3) ("Any showing as to why the forfeiture ... should be reduced shall include ... such documentation ... as may be pertinent."). See also, footnote 2 to NAL. As such, we find that respondent has failed to adequately raise a valid mitigation factor. 11. We have carefully evaluated the information submitted in connection with Hemmingford's response and conclude that, based on the discussion above, Hemmingford is liable for a forfeiture for willful violations of Sections 73.1745, 73.3526, 11.35 and 73.1590(a) of the Rules. Moreover, we find no basis in the record to support reduction of the amount of the forfeiture assessed against Hemmingford. We therefore, affirm the forfeiture amount of $11,000. 12. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act, and Section 1.80 of the Rules, Hemmingford Media, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of eleven thousand dollars ($11,000) for willful violations of Sections 73.1745, 73.3526, 11.35, and 73.1590(a) of the Rules. 13. IT IS FURTHER ORDERED that, pursuant to Section 1.80(f) of the Rules, Hemmingford Media, Inc. shall, within thirty (30) days of the release of this Forfeiture Order, pay the full amount of the forfeiture. Forfeitures shall be paid by check, money order or credit card, with the appropriate documentation, made payable to the Federal Communications Commission. The remittance should be marked NAL/Acct. No. 815AT0001, and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 Petitions for reconsideration pursuant to Section 1.106 of the Rules, 47 C.F.R.  1.106, or applications for review pursuant to Section 1.115 of the Rules, 47 C.F.R.  1.115, should be sent to: Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 ATTN: Compliance and Information Bureau Mail Stop 1500E3-MSL 14. IT IS FURTHER ORDERED that a copy of this Order shall be sent certified mail, return receipt requested, to Hemmingford Media, Inc., P.O. Box 810, Murfreesboro, Tennessee 37133. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance and Information Bureau