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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number: EB-02-BF-058
BanJo Communications Group, ) EB-02-BF-059
Inc. ) EB-02-BF-060
AM Broadcast Station WCHN )
FM Broadcast Station WBKT ) NAL/Acct.No.:200232280001
FM Broadcast Station WKXZ )
Oneonta, New York ) FRN: 0003-7815-98
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 18,
By the Resident Agent, Buffalo Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we
find that BanJo Communications Group, Inc., (``BanJo''), licensee
of radio stations WKXZ(FM), WBKT(FM), and WCHN(AM), has
apparently violated Sections 1.89(b), 11.35(a), and 11.61(a) of
the Commission's Rules and Regulations (``Rules'')1, by failing
to respond to Commission communications, failing to have
installed an operational Emergency Alert System (``EAS''), and
failing to determine and log the reasons why EAS monthly and
weekly tests were not being received and retransmitted properly.
We conclude that BanJo is apparently liable for forfeiture in the
amount of twenty three thousand dollars ($23,000).
2. On March 14, 2002, Agent Gene Stanbro from the
Commission's Buffalo Office inspected BanJo facilities in
Norwich, New York to verify compliance with the Commission's EAS
requirements. Agent Stanbro's inspection revealed each broadcast
station (WKXZ(FM), WBKT(FM), and WCHN(AM) ) was in violation of
the EAS rules. The three stations were sharing a common control
point and a single EAS system. Based on examination of EAS
equipment and records at BanJo, the agent determined WKXZ(FM),
WCHN(AM), and WBKT(FM) did not have installed an operational EAS
system, or any record of receiving monthly or weekly tests from
any assigned EAS monitoring source. WKXZ(FM), WBKT(FM), and
WCHN(AM) had no record of transmitting weekly or monthly tests.
There were no EAS logs, for WBKT(FM), WKXZ(FM), or WCHN(AM), for
at least two years. The EAS printer was out of paper, no one at
the station was able to locate or install a new roll of paper.
No one at the station was able to tell the inspector the last
time an EAS test was received or transmitted.
3. On March 25, 2002, Agent Stanbro of the Buffalo Office
issued Official Notices of Violation (``NOV'') to BanJo stations
WKXZ(FM), WBKT(FM), and WCHN(AM), for violations found during the
March 14, 2002 inspection. Agent Stanbro cited the stations for
non-compliance with Sections 11.15, 11.35, 11.61(a)(1),
11.61(a)(2), and 73.1820(a)(1) of the Rules.2
4. As of April 30, 2002, the Buffalo Office had not
received a response from BanJo. Agent Stanbro called Mr. James
Johnson, President of BanJo and asked why they had not replied to
the Notices of Violation as required by the Rules and
Regulations. Mr. Johnson stated a reply would be in the mail
within the next two days. To date, the Buffalo Office has not
received any reply.
5. Section 1.89(b) of the Rules requires that within 10
days, or such period as may be specified, of receipt of a Notice
of Violation, the recipient shall send a written answer to the
office originating the official notice. If an answer cannot be
sent or an acknowledgement cannot be made within such 10-day
period by reason of illness or other unavoidable circumstance,
acknowledgement and answer shall be made at the earliest
practicable date with a satisfactory explanation of the delay.
6. Section 11.35(a) of the Rules states that 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. Additionally, stations must determine the cause of
any failure to receive the required tests or activations.
Appropriate entries must be made in the broadcast station log
indicating reasons why tests were not received.
7. Section 11.61(a) of the Rules requires stations to test
EAS equipment at regular intervals. Stations may activate EAS
for emergencies or special tests at the State or local level
instead of the monthly or weekly tests required by this section.
8. Based on the evidence before us, we find that BanJo
willfully3 and repeatedly4 violated Sections 1.89(b), 11.35(a)
and 11.61(a) of the rules by failing to respond to Commission
communications, by failing to have an operational EAS system, and
by failing to determine and log the reasons why EAS tests were
not being received from each of its two assigned monitoring
sources and why the stations did not determine and log the
reasons for failed required test activations. The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997), recon. denied, 15 FCC Rcd 303(1999) (``Forfeiture
Policy Statement'')5, sets the base forfeiture amount at $4,000
for failure respond to Commission communications, sets the base
forfeiture amount at $8000 for failure to install and have
operational EAS equipment, and the base amount at $1000 for
failure to maintain required records. Since each of the stations
failed to respond and failed to maintain the required records,
the total for failure to respond is $12,000, and the total for
failure to maintain required records is $3000. In assessing the
monetary forfeiture amount, we must take into account the
statutory factors set forth in Section 503(b)(2)(D) of the
Communications Act of 1934 (``Act''), as amended,6 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. The record reveals that BanJo does have
an overall history of compliance. However, the violation is
egregious. Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the inflation
adjustments, we believe that a twenty three thousand dollar
($23,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act7, and Sections 0.111, 0.311 and 1.80 of the
Rules8, BanJo CommunicationsGroup, Inc. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty three
thousand dollars ($23,000) for willful and repeated violation of
Sections 11.35(a), 11.61(a), and 1.80(b)(4) of the Commissions
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, BanJo Communications Group, Inc. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
11. 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.200232280001 and FRN: 0003-7815-98.
12. 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
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: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to BanJo Communications Group, Inc., 34 Chestnut
Street, Oneonta, NY 13820.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
1 47 C.F.R. §§ 1.89(b), 11.35(a) and 11.61(a).
2 47 C.F.R. §§ 11.15, 11.35, 11.61(a)(1), 11.61(a)(2) and
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provide that ``the
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 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he 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.
547 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, and 1.80.
9 See 47 C.F.R. § 1.1914.