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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File Number EB-01-AT-0040
Zachery Broadcasting Company NAL/Acct. No. 20013248-0001
Radio Station WDWZ(AM)
West Point, GA
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 16,
By the Enforcement Bureau, Atlanta Office:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Zachery Broadcasting Company (``Zachery''),
licensee of AM broadcast station WDWZ(AM), has apparently
violated sections 11.35(a), 73.3526, 17.50, 17.56, 17.48, 17.49,
17.4(a), and 73.49 of the Commission's Rules1. Specifically,
Zachery failed to maintain emergency alert system (``EAS'')
equipment, failed to maintain a public inspection file, failed to
maintain the painting and lighting of the station's antenna
structure, failed to report and record the outage of the
station's antenna structure lights, failed to register the
station's antenna structure and failed to enclose the tower
within an effective locked fence or other enclosure. We conclude
that Zachery is apparently liable for a forfeiture in the amount
of twenty four thousand dollars ($24,000).
2. On January 30, 2001, agents form the Commission's
Atlanta Office inspected broadcast station WDWZ(AM) and found
numerous violations. On February 14, 2001, the Atlanta Office
issued a Notice of Violation (``NOV'') to Zachery for violations
found during the inspection. On March 1, 2001, the Atlanta Office
received a written response to the NOV. The response did not
adequately or clearly address all violations cited in the NOV.
On March 15, 2001, The Atlanta office issued a continuation to
the NOV (``Continuation Notice'') requesting a more thorough and
detailed response from the licensee. On April 6, 2001, the
Atlanta Office received another written response. Again, the
response did not adequately or clearly address all violations
cited in the NOV.
3. The NOV cited numerous violations. Of particular
importance were those violations pertaining to the EAS equipment,
public inspection file and antenna structure (``tower'') of radio
4. Section 11.35(a) of the Commission's Rules2 requires
that broadcast stations have EAS equipment installed and
operational at all times the station is in operation. Radio
station WDWZ(AM) had no EAS equipment installed at the station.
Furthermore, there were no EAS logs to indicate that the station
had ever had EAS equipment. Zachery's initial response to the
NOV indicated that EAS equipment with the name ``Hollybur'' had
been ordered. The response did not offer any further explanation
for the absence of EAS equipment on the day of inspection. The
Continuation Notice requested further explanation regarding the
station's compliance with the EAS rules as well as clarification
of the make and model of the ordered EAS equipment. Zachery
failed to address the EAS violation in the subsequent response
letter to the Atlanta Office.
5. Section 73.3526 of the Commission's Rules3 requires
that commercial broadcast stations maintain a public inspection
file at the main studio. The file must be made available during
normal business hours. There was no public inspection file at
the main studio. Furthermore, Mr. Willie Zachery, who identified
himself as the owner and chief operator of the station, failed to
provide proof that the public inspection file existed. Zachery's
initial response to the NOV simply stated that the station now
had a public inspection file. No further explanation was given
for the absence of the file on the day of inspection. The
Continuation Notice requested further explanation regarding the
station's compliance with the public inspection file rules as
well as a listing of the documents filed in the public inspection
file. Zachery failed to address the public inspection file
violation in the subsequent response letter.
6. Sections 17.50, 17.56, 17.48, 17.49 and 17.4(a) of the
Commission's Rules4 pertain to the licensee's responsibilities
relating to maintenance of obstruction marking and lighting as
well as other tower related responsibilities. Section 17.50
requires that licensees clean and repaint towers as often as
necessary to maintain good visibility. The paint on the tower
was faded and flaking, hindering the tower's visibility. Section
17.56 requires that licensees repair tower lighting as soon as
practicable. At the time of inspection, the lights on the
station's tower were all extinguished with the wires feeding the
tower's lights completely severed. During the inspection Mr.
Zachery stated that the lights were extinguished because when
lit, they caused electrical noise to the station's signal. He
further stated that the lights had been extinguished for several
weeks. Sections 17.48 and 17.49 require that licensee's notify
the Federal Aviation Administration (``FAA'') of any tower
lighting outage and that licensee's maintain specific records
pertaining to tower lighting outages. The FAA was not notified
of the lighting outage and no logs were maintained regarding the
lighting outage. Section 17.4(a) requires that owners of towers
with required painting and lighting register the tower with the
Commission. The tower was not registered with the Commission.
Zachery's initial written response to the NOV simply stated that
the licensee was ``work[ing] on the...FAA ...tower lighting and
paint[ing].'' No further explanation was provided. The
Continuation Notice requested further information regarding all
of the tower violations. Zachery's response to the Continuation
Notice stated that the tower lighting outage was reported to the
FAA on April 2, 2001 and that the tower registration number
(``7A304032'') was placed on the tower. However, the provided
registration number is invalid and there is no record that the
tower is registered. Zachery did not address any of the other
7. Section 73.49 of the Commission's Rules5 requires that
licensees enclose any AM tower with radio frequency potential at
the base within an effective locked fence or other enclosure.
The gate for the fence surrounding the base of the tower was
removed, leaving an opened doorway with unrestricted access to
the tower. Zachery's initial response indicated that the gate
had been reinstalled. Zachery included a photograph of the
reinstalled gate as evidence. However, the photograph also
demonstrated that the fence was still not effectively locked.
The Continuation Notice requested that Zachery respond further to
the tower fencing violation. Zachery's response to the
Continuation Notice included another photograph demonstrating
that the gate had finally been secured with a lock and chain. It
is apparent from this evidence that the station continued to be
in violation for at least two months after the inspection date.
8. As a Commission licensee, Zachery is responsible for
knowledge of and compliance with the Commission's Rules.
Zachery's responses to the Notices have been deficient in
substance and in some cases have failed to address the
violations. Based on the evidence before us, we find that
Zachery Broadcasting Company willfully6 violated Sections
11.35(a), 73.3526, 17.50, 17.56, 17.48, 17.49, 17.4(a) and 73.49
of the Commission's Rules.7 Pursuant to 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. denied, 15 FCC Rcd 303 (1999) (``Forfeiture Policy
Statement''), the base forfeiture amount for failure to maintain
EAS equipment [§ 11.35(a)] is $8,000, the base forfeiture amount
for failure to maintain a public inspection file [§73.3526] is
$10,000, the base forfeiture amount for failure to maintain the
antenna structure painting and lighting [§§17.50 and 17.56] is
$10,000, the base forfeiture amount for failure to notify the FAA
and record the tower lighting outage [§§17.48 and 17.49] is
$1,000, the base forfeiture amount for failure to register the
antenna structure [§17.4(a)] is $3,000 and the base forfeiture
amount for failure to enclose the tower within an effective
locked fence or other enclosure [§73.49] is $7,000. The
aggregate amount for these forfeitures is $39,000. 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 (``Act''), as amended, which include
the nature, circumstances, extent, and gravity of the
violation(s), 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.8 Taking these factors
into account we believe that because the station is licensed to a
relatively small market and because the station has no prior
history of offenses, the forfeiture amount should be reduced to
$24,000. After applying the Forfeiture Policy Statement and
statutory factors to the instant case, we believe a $24,000
forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended9, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules10,
Zachery Broadcasting Company is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of twenty four thousand
dollars ($24,000) for violating sections 11.35(a), 73.3526,
17.50, 17.56, 17.48, 17.4(a) and 73.49 of the Commission's
Rules11 for failure to maintain EAS equipment, failure to
maintain a public inspection file, failure to maintain the
lighting and painting of the station's antenna tower, failure to
notify the FAA and record the tower lighting outage, failure to
register the tower and failure to enclose the tower within an
effective locked fence or other enclosure.
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules12, within thirty days of the released date
of this NOTICE OF APPARENT LIABILITY, Zachery Broadcasting
Company SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation
of the proposed forfeiture.
11. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995 or 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. 20013248-
12. The response if any must be mailed to the Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W. Washington, D.C. 20554, ATTN: Enforcement Bureau - TPSD,
NAL/Acct. No. 20013248-0001 and must include the NAL/Acct. No.
13. 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
14. 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. 20554.13
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to 602 N. Cherry Drive, Lanett, AL 3686314.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
cc:Willie Zachery, 1039 44th Avenue, Lanett, AL 36863
Radio Station WDWZ(AM), P.O. Box 873, Lanett, AL 36863
1 47 C.F.R §§ 11.35(a), 73.3526, 17.50, 17.56, 17.48, 17.49,
17.4(a), and 73.49.
2 47 C.F.R. § 11.35(a).
3 47 C.F.R. § 73.3526.
4 47 C.R.R. §§ 17.50, 17.56, 17.48, 17.49 and 17.4(a).
5 47. C.F.R. § 73.49.
6 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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).
7 47 C.F.R. §§ 11.35(a), 73.3526, 17.50, 17.56, 17.48, 17.4(a)
8 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement,
12 FCC Rcd at 17100-01
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, 1.80.
11 47 C.F.R §§ 11.35(a), 73.3526, 17.50, 17.56, 17.48, 17.49,
17.4(a), and 73.49.
12 47 C.F.R. § 1.80.
13 See 47 C.F.R. § 1.1914.
14 As requested by the licensee, a courtesy copy will be sent to
two other addresses: Radio Station WDWZ(AM) P.O. Box 873, Lanett,
AL 36863 and Willie Zachery, 1039 44th Avenue, Lanett, AL