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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
L.T. Simes II & Raymond Simes )
) File Number EB-02-OR-196
Licensee of FM Radio Station )
KAKJ, Marianna, Arkansas, and ) NAL/Acct.No. 200232620007
Owner of Unregistered Antenna )
Structure Located at 34° 47' ) FRN 0007-2844-17
20'' N Latitude by 090° 47' )
08'' W Longitude near Marianna, )
West Helena, Arkansas
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 22, 2002
By the Enforcement Bureau, New Orleans Office:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find L.T. Simes II & Raymond Simes
(``Simes''), licensee of FM radio station KAKJ, Marianna,
Arkansas, and owner of unregistered antenna structure
located at 34° 47' 20'' North latitude by 090° 47' 08'' West
longitude near Marianna, Arkansas, apparently liable for a
forfeiture in the amount of fifteen thousand dollars
($15,000) for willful violation of Sections 11.35(a),
17.4(a), and 73.1350(a) of the Commission's Rules
(``Rules'').1 Specifically, we find L.T. Simes II & Raymond
Simes apparently liable for failing to ensure Emergency
Alert System (``EAS'') equipment was installed and
operational, failing to register their antenna structure
with the Commission, and failing to construct the
transmitter site and antenna structure at its licensed
2. On May 22, 2002, an agent from the FCC Enforcement
Bureau's New Orleans Office inspected station KAKJ's antenna
structure at a location determined by the agent to be at 34°
47' 20'' North latitude by 090° 47' 08'' West longitude near
Marianna, Arkansas. No Antenna Structure Registration
(``ASR'') number was observed anywhere near the base of the
3. On May 23, 2002, the agent inspected the studios
of KAKJ in West Helena, Arkansas, accompanied by the
licensee, Mr. Raymond Simes. At the time of the inspection,
the station did not have EAS equipment installed or
operational. There were no station logs that would indicate
the EAS equipment had been removed for repairs or that there
had ever been operational EAS equipment used at the
station.2 Additionally, Mr. Simes confirmed that the
antenna structure observed on May 22, 2002 near Marianna,
Arkansas supported the transmitting antenna for KAKJ and was
owned by the licensee. The KAKJ station authorization showed
the antenna structure to be at least 330 feet in height and
located at geographical coordinates 34° 47' 14'' North
latitude by 090° 46' 03'' West longitude. This places the
actual location of the KAKJ transmitter site and antenna
structure approximately one mile West of the authorized
location. Finally, Mr. Simes stated that he believed that
the structure was properly registered, but could provide no
documentation to support this claim.
4. On June 14, 2002, a search of the Commission's ASR
database did not find any records to show that the antenna
structure for station KAKJ had been registered, or any
applications filed to register the structure.
5. Section 11.35(a) of the Rules sets forth that
broadcast stations are responsible for ensuring that EAS
encoders, EAS decoders and Attention Signal generating and
receiving equipment used as part of the EAS are installed so
that the monitoring and transmitting functions are available
during the times the stations are in operation. On May 23,
2002, there was no installed or operational EAS equipment at
the studios of KAKJ.
6. Section 17.4(a) of the Rules states that,
``[e]ffective July 1, 1996, the owner of any proposed or
existing antenna structure that requires notice of proposed
construction to the Federal Aviation Administration
(``FAA'') must register the structure with the Commission.''
Simes owned the antenna structure used as part of radio
station KAKJ. This structure required notice to the FAA,
and thus required registration with the Commission, because
the structure height exceeded 200 feet. On June 14, 2002,
there were no Commission records indicating that this
structure had been registered.
7. Section 73.1350(a) of the Rules requires that each
licensee is responsible for maintaining and operating its
broadcast station in accordance with the terms of the
station authorization. On May 22, 2002, KAKJ's transmitter
site and antenna structure were found to be located at
geographical coordinates 34° 47' 20''N Latitude, 090° 47'
08''W Longitude, approximate one mile from the authorized
location of 34° 47' 14''N Latitude, 090° 46' 03''W
8. Based on the evidence before us, we find Simes
willfully3 violated Sections 11.35(a), 17.4(a), and
73.1350(a) of the Rules by failing to ensure that EAS
equipment was installed and operational at KAKJ, by failing
to register KAKJ's antenna structure with the Commission,
and by failing to operate in accordance with the terms of
the station authorization as the KAKJ transmitter site and
antenna structure were not at the licensed geographical
9. Pursuant to Section 1.80(b)(4) of the Rules,4 the
base forfeiture amount for EAS equipment not installed or
operational is $8,000, the base forfeiture amount for
failing to register its antenna structure (failure to file
required forms or information) is $3,000, and the base
forfeiture amount for operating at an unauthorized location
is $4,000. 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.''5 Considering the entire
record and applying the factors listed above, this case
warrants a $15,000 forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,6 and Sections 0.111, 0.311 and
1.80 of the Rules,7 L.T. Simes II & Raymond Simes is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for willful
violation of Sections 11.35(a), 17.4(a), and 73.1350(a) of
the Rules by failing to ensure that EAS equipment was
installed and operational at station KAKJ, failing to
register KAKJ's antenna structure with the Commission, and
failing to operate in accordance with the terms of the
station authorization by failing to construct the
transmitter site and antenna structure for KAKJ at the
licensed geographical coordinates.
11. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, L.T. Simes II & Raymond Simes SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
12. 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. Request for payment of the full amount of NAL under
an installment plan should be sent to: Chief, Revenue and
Receivable Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.8
13. 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.
14. 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
15. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to L.T. Simes II & Raymond Simes, P.O. Box
2870, West Helena, Arkansas, 72390.
James C. Hawkins
District Director, New Orleans
1 47 C.F.R. §§ 11.35(a), 17.4(a), and 73.1350(a).
2 EAS activations and tests, failures to receive such tests,
and EAS equipment malfunctions must be recorded in the
station log. See 47 C.F.R. §§ 11.35(a)-(b), 11.55(c)(7) and
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 (1991).
4 47 C.F.R. § 1.80(b)(4).
5 47 U.S.C. § 503 (b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.