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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-09-AT-0038
Licensee of Radio Station
) NAL/Acct. No. 201032480002
) FRN 0007676935
Facility ID #67280
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 11, 2010
By the District Director, Atlanta Office, South Central Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Rodgson, Inc. ("Rodgson"), licensee of station WSDQ(AM), in
Dunlap, Tennessee, apparently willfully and repeatedly violated
Sections 11.35(a), 73.49, and 73.3526 of the Commission's Rules
("Rules") by failing to maintain an operational emergency alert system
("EAS"), failing to enclose the base of an AM tower within an
effective locked fence, and failing to maintain and make available a
public inspection file. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Rodgson is
apparently liable for forfeiture in the amount of twenty-five thousand
2. On August 19, 2009, agents of the Commission's Atlanta Office of the
Enforcement Bureau ("Atlanta Office"), accompanied by the station's
general manager and other station staff, inspected the main studio of
radio station WSDQ(AM). Neither the station staff nor the general
manager knew how to send an EAS test, and there were no EAS logs to
confirm recent EAS functionality. The agents found that the EAS
receivers were not receiving audio from any monitoring assignment. The
general manager and station staff admitted that the EAS had not worked
for at least a year.
3. Still on August 19, 2009, the agents asked to inspect the station's
public inspection file and were told by the station staff and general
manager that there was no file and that there had never been a file.
Nobody at the station was familiar with the public inspection file
requirements, and no one could produce any of the documents required to be
in the public inspection file.
4. Still on August 19, 2009, the agents, accompanied by the general
manager, inspected the station's antenna tower fence. The general manager
admitted that he had not visited the tower site in a long time. The agents
observed that the lower planks of the wooden fencing were missing, thus
providing access to the base. The agents also found that the gate for the
fence was removed from its hinges and was propped up against the gate
opening. There was no evidence of a locking mechanism, except for a metal
- linked chain that was wrapped around one end of the wooden gate and hung
from a nail on the support post. The rusted chain appeared to have been
non-working for a long time. The tower was energized during operating
hours and thus had radiofrequency potential at its base. The agents did
not observe any perimeter property fence.
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions of
any license, or willfully or repeatedly fails to comply with any of the
provisions of the Act or of any rule, regulation or order issued by the
Commission thereunder, shall be liable for a forfeiture penalty. The term
"willful" as used in Section 503(b) of the Act has been interpreted to
mean simply that the acts or omissions are committed knowingly. The term
"repeated" means the commission or omission of such act more than once or
for more than one day.
6. The Rules provide that every broadcast station is part of the
nationwide EAS network and is categorized as a participating national EAS
source unless the station affirmatively requests authority to not
participate. The EAS provides the President and state and local
governments with the capability to provide immediate and emergency
communications and information to the general public. State and local
area plans identify local primary sources responsible for coordinating
carriage of common emergency messages from sources such as the National
Weather Service or local emergency management officials. Required monthly
and weekly tests originate from EAS Local or State Primary sources and
must be retransmitted by the participating station.
7. 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. As the
nation's emergency warning system, the Emergency Alert System is critical
to public safety, and we recognize the vital role that broadcasters play
in ensuring its success. The Commission takes seriously any violations of
the Rules implementing the EAS and expects full compliance from its
regulatees. On August 19, 2009, agents from the Atlanta Office observed
that the station's EAS unit was not installed such that its transmitting
functions were fully operational. There were no EAS logs to demonstrate
that the station had been operational after 1997, and there was no other
evidence to demonstrate any EAS activity after 1997. No one at the station
was familiar with EAS operations or how to send an EAS test. The general
manager admitted that the EAS had not worked for at least a year.
8. Section 73.49 of the Rules states that "antenna towers having radio
frequency potential at the base...must be enclosed within effective locked
fences or other enclosures." On August 19, 2009, Rodgson's tower had radio
frequency at its base. On August 19, 2009, agents from the Atlanta Office
observed that the wooden fence surrounding the station's antenna structure
was missing its lower planks, which provided access to the tower base. In
addition, the gate for the fence was removed from its hinges and propped
up against the gate opening. The rusty chain, which perhaps previously
served as a lock, did not appear to have been functional for quite some
time. The agents did not observe a property fence around the perimeter of
the property. The general manager admitted to not having visited the tower
site in a long time. The fence was in such a condition of disrepair that
it had to have been ineffective for more than one day.
9. Section 73.3526 of the Rules states that "[e]very permittee or licensee
of an AM, FM, TV or a Class A station in the commercial broadcast services
shall maintain a public inspection file containing material outlined in
this section." The public inspection file shall be maintained at the main
studio of the station. The file shall be available for public inspection
at any time during regular business hours. On August 19, 2009, agents from
the Atlanta Office asked to inspect the station's public inspection file
at its main studio during normal business hours. The general manager
stated that the station never had a public inspection file and that he did
not know what was required to be in a public inspection file. The agents
found no evidence of a public inspection file at the station, and the
staff was unable to produce any of the required documents.
10. Based on the evidence before us, we find that Rodgson apparently
willfully and repeatedly violated Sections 11.35, 73.49, and 73.3526 of
the Rules by failing to maintain operational EAS, failing to maintain an
effective locked fence around the base of its antenna tower, and failing
to maintain a public inspection file. We also find that Rodgson apparently
willfully violated Section 73.3526 of the Rules by failing to make
available a public inspection file during normal business hours.
11. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the base
forfeiture amount for failure to maintain an operational EAS system is
$8,000; failure to maintain a public inspection file is $10,000; and
failure to maintain an effective locked fence or enclosure at the base of
the antenna structure is $7,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth in
Section 503(b)(2)(E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the violator,
the degree of culpability, and history of prior offenses, ability to pay,
and other such matters as justice may require. Applying the Forfeiture
Policy Statement, Section 1.80 of the Rules, and the statutory factors to
the instant case, we conclude that Rodgson is apparently liable for a
twenty-five thousand dollar ($25,000) forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, 0.314
and 1.80 of the Commission's Rules, Rodgson, Inc. is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-five
thousand dollars ($25,000) for violations of Sections 11.35, 73.49, and
73.3526 of the Rules.
13. 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 for Forfeiture, Rodgson, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
14. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government Lockbox
#979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment
by wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payment by credit card, an FCC
Form 159 (Remittance Advice) must be submitted. When completing the FCC
Form 159, enter the NAL/Account number in block number 23A (call
sign/other ID), and enter the letters "FORF" in block number 24A (payment
type code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554.8 If you have
questions, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made, Rodgson,
Inc. will send electronic notification on the date said payment is made to
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Atlanta Office, 3575
Koger Blvd, Suite 320, Duluth, Georgia 30096 and must include the
NAL/Acct. No. referenced in the caption.
16. 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 submitted.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Rodgson, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Douglas G. Miller
South Central Region
47 C.F.R. S: 11.35; 73.3526; and 73.49.
47 U.S.C. S: 503(b).
At the time of the inspection, the EAS equipment was incapable of sending
a test over the air.
The only evidence of a functional EAS was an old EAS log from 1997.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[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."
47 C.F.R. S:S: 11.11 and 11.41.
47 C.F.R. S:S: 11.1 and 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35(a),
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission