******************************************************** 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 ) ) Joy Public Broadcasting Corporation ) NAL/Acct. No. 915TP0004 Panama City, Florida ) ) ) FORFEITURE ORDER Adopted: June 30, 1999 Released: July 7, 1999 By the Director, Legal Services Group Compliance and Information Bureau: 1. Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL"), issued on February 4, 1999, to Joy Public Broadcasting Corporation ("Joy"), permittee of FM Station WJTF, Panama City, Florida, and the March 8, 1999, response filed thereto on behalf of Joy by its attorney.0 The NAL proposed imposition of a forfeiture against Joy, in the amount of $3,000 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 73.1350(c)(2), 73.1590(a)(1) and 73.1870(b)(3) of the Rules, 47 C.F.R.  73.1350(c)(2), 73.1590(a)(1) and 73.1870(b)(3). For the reasons stated below, we affirm the monetary forfeiture issued in the amount of $3,000. BACKGROUND 2. On November 17, 1998, in response to a complaint of interference to a television station arising from WJTF's operation, agents from the Bureau's Tampa, Florida, Field Office inspected the transmitting facilities of radio station WJTF. The inspection revealed several violations of the Rules, including violations of Section 73.317(d) of the Rules, 47 C.F. R.  73.317(d), any emissions appearing on a frequency removed from the carrier by more than 600 kHz must be attenuated at least 43 + 10 Log10 (Power, in watts) dB below the level of the unmodulated carrier, or 80 dB, whichever is the lesser attenuation, as identified in the complaint, and other violations which were unrelated to the complaint. Specifically, violations of Section 73.1590(a)(1) of the Rules (equipment performance measurements must be made upon the initial installation of a new transmitter), Section 73.1870(b)(3) of the Rules (the designation of the chief operator must be in writing with a copy of the designation posted with the station license), Section 73.1350(c)(2) of the Rules (monitoring equipment must be periodically calibrated so as to provide reliable indications of transmitter operating parameters with a known degree of accuracy); and Section 11.15 of the Rules, 47 C.F.R.  11.15, (EAS operating handbook must be located at normal duty positions or EAS equipment locations) were also identified. 3. On December 4, 1998, the Tampa Field Office issued a Notice of Violation ("NOV") to Joy for violations of Sections 73.317(d), 73.1590(a)(1), 73.1870(b)(3), 73.1350(c)(2) and 11.15 of the Rules. On December 21, 1998, the Tampa Field Office received a response to the NOV from Joy's counsel. While Joy, through its response, did not concur that it had violated Sections 73.317 and 73.1350(c)(2) of the Rules, it did acknowledge the violations of Sections 73.1590(a)(1), 73.1870(b)(3) and 11.15 of the Rules. In response, Joy stated that the noted violations concerning Sections 73.1590(a)(1), 73.1870(b)(3), 73.1350(c)(2) and 11.15 of the Rules, were in the process of being, or had been, corrected. 4. On February 4, 1999, the District Director of the Bureau's Tampa Field Office issued the subject NAL to Joy for violations of Sections 73.1350(c)(2), 73.1590(a)(1), and 73.1870(b)(3) of the Rules. The NAL did not include the violation of Section 73.317(d) of Rules, as cited in the NOV, because a second measurement of the station's signal by FCC agents on January 20, 1999, indicated that Joy had sufficiently corrected the problem. Likewise, because Joy obtained a copy of the EAS operating handbook, the NAL did not include the violation of Section 11.15 of the Rules. DISCUSSION 5. The Bureau's Tampa Field Office issued the forfeiture pursuant to Section 503 of the Act and Section 1.80 of the Rules. In assessing the forfeiture amount, the Tampa Field Office 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 ("Policy Statement"). Although the Tampa Field Office determined that the base amount for these violations was $5,000, pursuant to statutory factors in Section 503 of the Act, it was determined that a monetary forfeiture in the amount of $3,000 would be warranted. In reviewing the NAL and the subsequent response thereto, 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. Joy's response to the NAL requests that the forfeiture amount be rescinded and asserts several arguments in support of its request. Initially, Joy contends that the "sole purpose of the Field Office's inspection of WJTF was to respond to complaints by area broadcasters." By this contention, Joy apparently believes that no enforcement action should have resulted from the Tampa Field Office's inspection since the initial purpose of the inspection was to respond to the complaints by area broadcasters. We disagree. Under Section 303(n) the Act, the FCC has the "authority to inspect all radio installations associated with stations required to be licensed by any Act ... to ascertain whether in construction, installation, and operation they conform to the requirements of the rules and regulations of the Commission, [and] the provisions of any Act ...." 47 U.S.C.  303(n). While in this case, the initial purpose of the inspection was to respond to complaints, once violations of the Rules were discovered during our inspection, it is the Bureau's responsibility to take appropriate enforcement action to ensure compliance with the Rules. See Norfolk Southern Railway Company, 11 FCC Rcd 519 (CIB 1996) (the right to inspect a station is one of the cornerstones of the FCC's ability to ensure compliance with the Communications Act and the Commission's Rules). 7. In the second, third, and fourth arguments, Joy states that the violations cited by the NAL are "non-existent requirements," that they are "not associated with any forfeiture amounts," and are "minor violations which have no gravity to them under the circumstances." Each of the cited rule sections is an existing requirement for the operation of an authorized FM radio station. Joy, as a permittee and pending licensee, is responsible for ensuring that its operation of WJTF complies with the Rules. See In the Matter of Q. M. Tomlinson, Inc. 12 FCC Rcd 2981, 2982 (1997). "Licensees are expected to know and comply with the Commission's rules, and will not be excused for violations thereof, absent clear mitigating circumstances." See In the Matter of Liability of Sitka Broadcasting Co., Inc., 70 FCC 2d 2375, 2378 (1979), citing Lowndes County Broadcasting Co., 23 FCC 2d 91 (1970) and Emporium Broadcasting Co., 23 FCC 2d 868 (1970). Presumably, Joy's argument that the "violations are not associated with any forfeiture amounts," is referring to Appendix A of the Policy Statement which establishes base forfeiture amounts for a wide range of violations. While Appendix A to the Policy Statement may not list specific base amount forfeitures for each violation cited in the NAL, the Policy Statement at 17099 states that "any omission of a specific rule violation from the list set forth in Appendix A should not signal that the Commission considers any unlisted violation as nonexistent or unimportant." Moreover, the Commission states further that "[a]lthough we have adopted the base forfeiture amounts as guidelines to provide a measure of predictability to the forfeiture process, we retain our discretion to depart from the guidelines and issue forfeitures on a case-by-case basis, under our general forfeiture authority contained in Section 503 of the Act." Policy Statement at 17099. Therefore, regardless of whether a specific violation is listed in the table, the Commission and its Bureaus have the authority to assess a forfeiture for a violation of the Rules. 8. To support its contention that the violations cited in the NAL are "minor ones," especially in regard to equipment performance measurements, which Joy states that in the past the "Commission has been lenient regarding," Joy cites Wings Communications, Inc. 13 FCC Rcd 10806 (CIB 1998). Joy concludes that a violation of Section 73.1590(a) of the Rules is "minor" because in Wings, the licensee was given an opportunity to conduct performance measurements after the Commission's initial station inspection and prior to the issuance of an NAL. We again disagree. In Wings, the Bureau affirmed the forfeiture assessed for the violations cited in the NAL, which included a violation of Section 73.1590(a) of the Rules, thereby demonstrating the seriousness with which the Commission regards this violation. See also Hemmingford Media, Inc., 14 FCC Rcd 2940 (CIB 1999) (Bureau affirmed an NAL forfeiture amount assessed, in part, for violation of Section 73.1590(a) of the Rules). Furthermore, Joy did have two opportunities to correct this violation before the issuance of the December 4, 1998 NOV inasmuch as it had prior knowledge of the November 17, 1998 inspection and had an opportunity to insure that WJTF was in full compliance with all of the Commission's Rules and regulations prior to the inspection. Joy also had the opportunity to correct this violation after the inspection and before the issuance of the NOV. Finally, in the response to the NOV, Joy stated that it was "making arrangements to have the performance measurements made and that it would file a supplemental response within 30 days to report on those measurements." No such report was ever filed with the Commission. 9. In its final arguments, Joy asserts with respect to the cited violation of Section 73.1350(c)(2) that as a new licensee who had been "operating for only a short time, approximately two months, at the time of the inspection," and because there were no "operating problems," the Bureau should not assess a forfeiture against them for failing to establish "procedures ... to ascertain the reliability of the monitoring equipment." Joy additionally argues that, there is no requirement to publish those procedures citing Report and Order, 10 FCC Rcd 11479, 11483 (1995). The Bureau has not stated that there is a requirement to publish those procedures, however, the "Commission always reserves the right to question licensees found violating the technical rules in order to determine whether or not a good-faith effort has been made to comply with the rules." Report and Order at 11483. Joy, by its own admission, had failed to establish such procedures. Finally, Joy asserts that its failure to post the name of the chief operator, as required pursuant to Section 73.1870(b)(3) of the Rules, is "merely a technical violation" because the FCC agents were able to speak with the chief operator during the inspection. Posting the chief operators name is a Commission requirement of broadcast licensees. As a permittee and pending licensee, Joy, is required to follow the rules and regulations of the Commission, and, by failing to post the name of the chief operator, it did not. 10. Joy has not provided documentary evidence upon which to evaluate its financial condition or ability to pay. In the absence of any such evidence, and of any other mitigating evidence, we decline to reduce the amount of the forfeiture. We therefore find that $3,000 is the appropriate amount for the noted violations. 11. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503 of the Act, 47 U.S.C.  503(b) , Section 1.80 of the Rules, 47 C.F.R.  1.80, and the Policy Statement, Joy Public Broadcasting Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of $3,000 for willful and repeated violations of Section 73.1350(c)(2), 73.1590(a)(1) and 73.1870(b)(3) of the Rules, 47 C.F.R.  73.1350(c)(2), 73.1590(a)(1) and 73.1870(b)(3). 12. IT IS FURTHER ORDERED that, pursuant to Section 1.80(h) of the Rules, 47 C.F.R.  1.80(h), Joy Public Broadcasting Corporation shall, within 30 days of the release of this Forfeiture Order, pay the amount of $3,000. Payment of the forfeiture shall be made by check or money order drawn on a U.S. financial institution payable to the Federal Communications Commission. Payment may also be made by credit card with appropriate documentation. The remittance should be marked NAL/Acct. No. 915TP0004, 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: Mail Stop 1500E3-DLH Compliance and Information Bureau Forfeiture penalties not paid within 30 days will be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). 13. IT IS FURTHER ORDERED that, a copy of this Order shall be sent certified mail, return receipt requested, to Joy Public Broadcasting Corporation and its counsel. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau