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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-AT-291
Small Town Radio, Inc. ) NAL/Acct. No.200332480007
Licensee of WDGR(AM), Dahlonega, )
GA ) FRN 0005-0483-35
Alpharetta, GA )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 13, 2002
By the Enforcement Bureau, Atlanta Office:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Small Town Radio, Inc. (``Small Town Radio''),
licensee of WDGR(AM), Dahlonega, GA, apparently liable for a
forfeiture in the amount of fifteen thousand dollars ($15,000)
for willful and repeated violation of Sections 73.49 and 11.35(a)
of the Commission's Rules (``Rules'').1 Specifically, we find
Small Town Radio apparently liable for failure to maintain
operational emergency alert system (``EAS'') equipment and
failure to maintain an effective locked fence around the base of
the antenna tower for Radio Station WDGR(AM).
2. On October 21, 2003, an agent of the Commission's
Atlanta Field Office inspected the fence surrounding the base of
the antenna tower of radio station WDGR(AM). The agent found
that the gate of the fence was opened and that several boards
were missing from the fence allowing unrestricted access to the
base of the antenna structure. During a telephone conversation
with Don Boyd, President of Small Town Radio, Mr. Boyd told the
agent that he was aware of the fencing problem and that he had
intended to have the fence fixed.
3. That same day, the agent inspected the station's EAS
equipment. The station had a Sage EAS ENDEC, however the unit
was not connected to any receivers and was unable to monitor the
two required EAS sources. There were no EAS logs at the station
to demonstrate that the EAS unit had ever been operational or
that the system was temporarily taken out of service for repair.
The operator on duty was unfamiliar with the operation of the EAS
unit and indicated that he had never sent nor received an EAS
alert from the EAS unit.
4. Section 73.49 requires that antenna towers having radio
frequency potential at the base must be enclosed within effective
locked fences or other enclosures. On October 21, 2002, the gate
of the fence surrounding the tower base was opened and there were
several boards missing from the fence itself, thus allowing
unrestricted access to the antenna structure. Moreover, even
though Small Town Radio was aware of the fencing violation, the
licensee still failed to take any measures to prohibit access to
the antenna structure.
5. Section 11.35(a) requires that radio stations maintain
operational EAS equipment during all times the station is in
operation. On October, 21, 2002, the EAS unit was not capable of
receiving alerts and there was no evidence that the unit was
capable of sending EAS alerts. In addition, the station records
contained no entries of any EAS activity or that EAS equipment
had been removed from service for repair.2
6. Based on the evidence before us, we find Small Town
Radio willfully3 and repeatedly4 violated Sections 73.49 and
11.35(a) of the Rules by failing to maintain an effective locked
fence around the base of the station's antenna tower and by
failing to maintain operational EAS equipment.
7. Pursuant to Section 1.80(b)(4) of the Rules,5 the base
forfeiture amount for failing to maintain an effective locked
fence around the base of the antenna structure is $7,000 and for
failing to maintain operational EAS equipment is $8,000. 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 Communications Act of 1934, as amended (``Act''), which
include 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.6 Considering the
entire record and applying the factors listed above, this case
warrants a $15,000 forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Rules,8 Small Town Radio, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen
thousand dollars ($15,000) for willful and repeated violation of
Sections 73.49 and 11.35(a) of the Rules by failing to maintain
an effective locked fence around the base of the station's
antenna structure and by failing to maintain operational EAS
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Small Town Radio, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. and FRN referenced above. Requests for payment of
the full amount of this NAL under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.9
11. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE NAL/Acct.
No. referenced above.
12. 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
13. 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 Technical & Public Safety
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 FCC's
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.
14. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Small Town Radio, Inc., 12600 Deerfield Parkway, Suite 100,
Alpharetta, Georgia 30004.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
Atlanta Office, Enforcement Bureau
1 47 C.F.R. § 73.49 and 11.35(a).
2 See 47 C.F.R. §§ 11.35 and 11.61.
3 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 . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
4 The 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.'' 47 U.S.C. §
5 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.