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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Atlantic Beach Radio, Inc. ) File Number EB-02-AT-071
Licensee of Radio Station ) NAL/Acct. No.200232480007
WMIR(AM), ) FRN 0006-1248-87
Atlantic Beach, SC
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 24,
By the Enforcement Bureau, Atlanta Office:
1. In this Notice of Apparent Liability for Forfeiture, we
find that Atlantic Beach Radio, Inc. (``Atlantic''), licensee of
Radio Station WMIR(AM), Atlantic Beach, South Carolina, willfully
and repeatedly violated Sections 11.35 and 73.1745 of the
Commission's Rules (``Rules''),1 by failing to maintain
operational Emergency Alert System (``EAS'') equipment and by
operating with excessive power at night in violation of the terms
of station authorization. We find Atlantic Beach Radio, Inc.
apparently liable for forfeiture in the amount of twelve thousand
2. On May 6 and 7, 2002, an agent of the FCC Enforcement
Bureau's Atlanta Office (``Atlanta Office'') monitored WMIR(AM)'s
signal from before sunset, through sundown, and into the
nighttime hours. The agent conducted field strength measurements
of the station's signal during this time period and determined
that WMIR(AM) failed to reduce power to its licensed nighttime
power of 11 watts at sunset, 8:15 p.m. eastern daylight savings
time and remained on daytime power (6.5 kilowatts) throughout
3. On May 8, 2002, the agent inspected the EAS system of
WMIR(AM). The inspection was conducted with Mr. Reggie Dyson,
Station Manager. Mr. Dyson showed the agent a Gorman Redlich EAS
encoder/decoder in the studio, however the equipment was not
hooked up and there were no receivers connected to the unit.
There were no EAS logs to demonstrate that the EAS unit had
recently been taken out of service for repairs or any other
evidence that the EAS unit had ever been installed and
operational. Mr. Dyson said that the station had been sharing an
EAS unit with the station WKVC(FM), North Myrtle Beach, SC, with
studios located in the same building. Mr. Dyson had no logs to
corroborate his statements.
4. Still on May 8, 2002, during the same inspection, the
agent notified Mr. Dyson that he observed that the station did
not reduce power on the evenings of May 6 and 7, 2002. Mr. Dyson
stated that the transmitter was on a timer and that the
transmitter should have powered down to nighttime power
automatically. Mr. Dyson stated that the station engineer was
out of town, however, he would make sure he was notified and get
instructions on how to reduce the station's power.
5. Still on the evening of May 8, 2002, the agent
conducted field strength measurements and determined that,
although the station had reduced power at local sunset, the
station's power level far exceeded the 11 watts nighttime power
that the station was authorized.
6. During the week of May 15 through 21, 2002, the agent
held telephone conversations with WMIR(AM)'s station engineer.
The engineer stated that WMIR(AM) shared a Sage EAS unit with
another station, WKVC(FM), located in the same building. He said
that the Sage unit was removed from the WKVC(FM) studio about a
month prior to the agent's inspection and the unconnected Gorman
Redlich EAS unit the agent found in WMIR(AM)'s studio was
purchased at that time.
7. During the same telephone conversations, the engineer
stated that he discovered that the automatic control unit used to
power down the station at sunset had been damaged resulting in
the station's failure to reduce power on the evenings of May 6
and 7, 2002 and remaining on full daytime power. He also stated
that the failure to fully reduce power on the evening of May 8,
2002 was due to operator error.
8. Section 11.35 of the Rules requires that broadcast
stations maintain operational EAS encoders, decoders and
attention signal generating equipment and receiving equipment so
that monitoring and transmitting functions are available during
times the stations are in operation. On May 8, 2002, the Gorman
Redlich EAS unit at the WMIR(AM)'s studio was not operational and
there were no EAS logs to demonstrate that the station had ever
had operational EAS equipment or that the EAS equipment had been
taken out of service for repair.2 Atlantic admitted that the
station had purchased, but not installed, EAS equipment about one
month prior to the inspection.
9. Section 11.51(j) of the Rules states that ``[b]roadcast
stations, and cable systems and wireless cable systems that are
co-owned and co-located with a combined studio or control
facility, (such as an AM and FM licensed to the same entity and
at the same location or a cable headend serving more than one
system) may provide the EAS transmitting requirements contained
in this section for the combined stations or cable systems or
wireless cable systems with one EAS Encoder.'' Although the
station manager and engineer stated that WMIR(AM) had shared a
Sage EAS unit with WKVC(FM) up to a month prior to inspection,
Commission records indicate that the stations are not co-owned
and are not licensed to the same community. Moreover, there was
no evidence that the stations had a combined studio or control
facility and there were no logs to demonstrate that WMIR(AM) had
ever sent or received an EAS test or alert.
10. Section 73.1745 of the Rules states that ``[n]o
broadcast station shall operate at times, or with modes or power,
other than those specified and made a part of the license, unless
otherwise provided in this part.'' WMIR(AM) failed to reduce
power to nighttime power and remained on full daytime power on
the evenings of May 6 and 7, 2002. Still, on May 8, 2002, after
being verbally warned about the failure to reduce power the
previous two evenings, the station reduced power to an
intermediate power level, but it never fully reduced power to the
licensed power of 11 watts. Although the failure to reduce power
on two evenings was reportedly due to equipment failure and then
on the third evening operator error, it is still the
responsibility of licensees to ensure proper station operation.
It is also the licensee responsibility to establish monitoring
procedures, routinely inspect any automatic transmission control
equipment, train operating personnel to properly make transmitter
adjustments and maintain pertinent station logs.3
11. Based on the evidence before us, we find that Atlantic
Beach Radio, Inc. willfully4 violated Sections 11.35 and 73.1745
of the Rules by failing to maintain operational EAS equipment and
by operating with excessive power during nighttime hours in
violation of the terms of station authorization. These
violations are repeated5 in that they occurred on more than one
12. Pursuant to Section 1.80(b)(4) of the Rules,6 the base
forfeiture amount for failure to maintain operational EAS
equipment is $8,000, and for operation with excessive power 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.7 Considering
the entire record and applying the factors listed above, this
case warrants a $12,000 forfeiture.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80 of the
Rules,9 Atlantic Beach Radio, Inc. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of twelve
thousand dollars ($12,000) for willful and repeated violation of
Sections 11.35 and 73.1745 of the Rules, by failing to maintain
operational EAS equipment and failing to reduce power to
nighttime power in violation of the terms of station
14. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this Notice Of Apparent Liability, Atlantic Beach Radio, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
15. 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 Notice of Apparent Liability under an
installment plan should be sent to: Chief, Credit and Debt
Management Center, 445 12th Street, S.W., Washington, D.C.
16. 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.
17. 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
18. IT IS FURTHER ORDERED THAT a copy of this Notice Of
Apparent Liability shall be sent by regular mail and Certified
Mail Return Receipt Requested to Atlantic Beach Radio, Inc., c/o
Putbrese, Hunsaker & Trent, P.O. Box 217, Sterling, VA 20167.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
1 47 C.F.R §§ 11.35 and 73.1745.
2 See 47 C.F.R. §§ 11.35(a)-(b).
3 See 47 C.F.R. §§ 73.1350 and 73.1400.
4 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).
5 The term ``repeated'' means the commission or omission of an
act more than once or, if such commission or omission is
continuous, for more than one day. 47 U.S.C. § 312(f)(2).
6 47 C.F.R. § 1.80(b)(4).
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 See 47 C.F.R. § 1.1914.