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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of )


   Birach Broadcasting Corporation ) Case No. EB-FIELDNER-12-00005058

   Licensee of Radio Station WTOR )

   Facility ID # 74121 )

   Youngstown, New York ) NOV No. V201332400009



                              NOTICE OF VIOLATION

   Released: December 6, 2012

   By the District Director, Philadelphia Office, Northeast Region,
   Enforcement Bureau:

    1. This is a Notice of Violation (Notice) issued pursuant to Section 1.89
       of the Commission's rules (Rules) to Birach Broadcasting Corporation,
       licensee of AM Broadcast Station WTOR in Youngstown, New York.
       Pursuant to Section 1.89(a) of the Rules, issuance of this NOV does
       not preclude the Enforcement Bureau from further action if warranted,
       including issuing a Notice of Apparent Liability for Forfeiture for
       the violations noted herein.

    2. On October 18, 2012, and November 15, 2012, an agent of the
       Enforcement Bureau's Philadelphia Office inspected the WTOR main
       studio located in Lewiston, New York, and the WTOR transmitter site
       located in Ransomville, New York, and observed the following

     a. 47 C.F.R. S: 73.1225(a): "The licensee of a broadcast station shall
        make the station available for inspection by representatives of the
        FCC during the station's business hours, or at any time it is in
        operation." When agents attempted to conducted an inspection of the
        WTOR transmitter equipment during business hours on October 18, 2012,
        a station representative was not available to provide access to the
        transmitter building.

     b. 47 C.F.R. S: 73.49: "Antenna towers having radio frequency potential
        at the base (series fed, folded unipole, and insulated base antennas)
        must be enclosed within effective locked fences or other enclosures.
        Ready access must be provided to each antenna tower base for meter
        reading and maintenance purposes at all times. However, individual
        tower fences need not be installed if the towers are contained within
        a protective property fence." At the time of the inspection on
        October 18, 2012, a substantial portion of the fences surrounding
        Tower #1 and Tower #2 in the WTOR antenna array were removed. Because
        there was no protective property fence, these conditions resulted in
        unrestricted access to these towers, which had radio frequency
        potential at their base.

     c. 47 C.F.R. S: 73.1125(e): "Each AM, FM, TV and Class A TV broadcast
        station shall maintain a local telephone number in its community of
        license or a toll-free number." At the time of the inspection on
        October 18, 2012 and November 15, 2012, the WTOR website
        ( and Verizon 411 Telephone Directory Service had no
        record of a telephone number for station WTOR. Furthermore, the phone
        number advertised in several online resources ((716) 754-9514) was no
        longer assigned to Station WTOR.

     d. 47 C.F.R. S: 73.3526(e)(12): "Radio issues/programs lists. For
        commercial AM and FM broadcast stations, every three months a list of
        programs that have provided the station's most significant treatment
        of community issues during the preceding three month period. The list
        for each calendar quarter is to be filed by the tenth day of the
        succeeding calendar quarter (e.g., January 10 for the quarter
        October-December, April 10 for the quarter January-March, etc.). The
        list shall include a brief narrative describing what issues were
        given significant treatment and the programming that provided this
        treatment. ... The lists described in this paragraph shall be
        retained in the public inspection file until final action has been
        taken on the station's next license renewal application." At the time
        of the inspection on October 18, 2012, the agent determined that the
        public inspection file did not contain five quarters of the
        issues-programs lists from the third and fourth quarters of 2011 and
        the first, second and third quarters of 2012.

     e. 47 C.F.R. S: 73.1560(a)(1): "Except as provided for in paragraph (d)
        of this section, the antenna input power of an AM station as
        determined by the procedures specified in S: 73.51 must be maintained
        as near as is practicable to the authorized antenna input power and
        may not be less than 90% nor more than 105% of the authorized power."
        At the time of the inspections on October 18, 2012 and November 15,
        2012, Station WTOR was operating with 2812.5 Watts or 20.5% of the
        authorized antenna input power.

     f. 47 C.F.R. S: 73.1350(a): "Each licensee is responsible for
        maintaining and operating its broadcast station in a manner ... in
        accordance with the terms of the station authorization." At the time
        of the inspection on October 18, 2012 and November 15, 2012, the
        field strength of the WTOR emissions at the monitoring point along
        the 189.5 degree bearing exceeded the maximum limit of 11.9 mV/m by
        9.2 % percent.

     g. 47 C.F.R. S: 73.62(a): "Each AM station operating a directional
        antenna must maintain the relative amplitudes of the antenna
        currents, as indicated by the antenna monitor, within 5% of the
        values specified on the instrument of authorization. Directional
        antenna relative phases must be maintained within 3 degrees of the
        values specified on the instrument of authorization." At the time of
        the inspection on November 15, 2012, the relative amplitudes of the
        antenna currents and phases for each of the three antenna towers
        exceeded the authorized values.

     h. 47 C.F.R.S:73.61(a): "Each AM station using a directional antenna
        must make field strength measurements at the monitoring point
        locations specified in the instrument of authorization, as often as
        necessary to ensure that the field at those points does not exceed
        the values specified in the station authorization... The results of
        the measurements are to be entered into the station log." Station
        WTOR's engineer reported that he had last taken monitoring point
        readings about one year ago. Those readings were not entered into the
        station logs and, at the time of inspection on October 18, 2012, the
        agent found that the directional parameters were out of tolerance.
        Although the agent immediately informed the station engineer
        regarding the out-of-tolerance meter readings, the meter readings
        were still out of tolerance when the agent returned on November 15,

     i. 47 C.F.R. S: 73.1590(d): "Equipment Performance Measurements. The
        data required by paragraphs (b) and (c) of this section, together
        with a description of the equipment and procedure used in making the
        measurements, signed and dated by the qualified person(s) making the
        measurements, must be kept on file at the transmitter or remote
        control point for a period of 2 years, and on request must be made
        available during that time to duly authorized representatives of the
        FCC." At the time of the inspection on November 15, 2012, the station
        engineer stated that he conducted equipment performance measurements
        in the past year, but he did not maintain any records including the
        measurement data and the description of the equipment and procedures

     j. 47 C.F.R. S: 73.1870(a)(3): "The designation of the chief operator
        must be in writing with a copy of the designation posted with the
        station license. Agreements with chief operators serving on a
        contract basis must be in writing with a copy kept in the station
        files." At the time of the inspection on November 15, 2012, Birach
        Broadcasting had not made the designation of the chief operator in

     k. 47 C.F.R.S: 11.35(a): "EAS Participants are responsible for ensuring
        that EAS Encoders, EAS Decoders, Attention Signal generating and
        receiving equipment, and Intermediate Devices used as part of the EAS
        to decode and/or encode messages formatted in the EAS Protocol and/or
        the Common Alerting Protocol are installed so that the monitoring and
        transmitting functions are available during the times the stations
        and systems are in operation. Additionally, EAS Participants must
        determine the cause of any failure to receive the required tests or
        activations specified in S: 11.61(a)(1) and (2). Appropriate entries
        indicating reasons why any tests were not received must be made in
        the broadcast station log as specified in S:S: 73.1820 and 73.1840 of
        this chapter for all broadcast streams..." For the two years prior to
        the November 15, 2012 inspection, Birach Broadcasting failed to
        ensure that Station WTOR was receiving the required weekly tests and
        required monthly tests. Furthermore, at the time of the inspection,
        there were no entries in the station logs indicating reasons why
        Station WTOR did not receive the required tests.

    3. 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. We also must investigate
       violations of other Rules that apply to broadcast licensees. Pursuant
       to Section 308(b) of the Communications Act of 1934, as amended, and
       Section 1.89 of the Rules, we seek additional information concerning
       the violations and any remedial actions taken. Therefore, Birach
       Broadcasting must submit a written statement concerning this matter
       within twenty (20) days of release of this Notice. The response (i)
       must fully explain each violation, including all relevant surrounding
       facts and circumstances, (ii) must contain a statement of the specific
       action(s) taken to correct each violation and preclude recurrence, and
       (iii) must include a time line for completion of any pending
       corrective action(s). The response must be complete in itself and must
       not be abbreviated by reference to other communications or answers to
       other notices.

    4. In accordance with Section 1.16 of the Rules, we direct Birach
       Broadcasting to support its response to this Notice with an affidavit
       or declaration under penalty of perjury, signed and dated by an
       authorized officer of Birach Broadcasting with personal knowledge of
       the representations provided in Birach Broadcasting's response,
       verifying the truth and accuracy of the information therein, and
       confirming that all of the information requested by this Notice which
       is in the licensee's possession, custody, control, or knowledge has
       been produced. To knowingly and willfully make any false statement or
       conceal any material fact in reply to this Notice is punishable by
       fine or imprisonment under Title 18 of the U.S. Code.

    5. All replies and documentation sent in response to this Notice should
       be marked with the File No. and NOV No. specified above, and mailed to
       the following address:

   Federal Communications Commission

   Philadelphia Office

   One Oxford Valley Building, Suite 404

   2300 East Lincoln Highway

   Langhorne, Pennsylvania 19047

    6. This Notice shall be sent to Birach Broadcasting Corporation at its
       address of record.

    7. The Privacy Act of 1974 requires that we advise you that the
       Commission will use all relevant material information before it,
       including any information disclosed in your reply, to determine what,
       if any, enforcement action is required to ensure compliance.


   David C. Dombrowski

   District Director

   Philadelphia District Office

   Northeast Region

   Enforcement Bureau

   47 C.F.R. S: 1.89.

   47 C.F.R. S: 1.89(a).

   The relative current ratios for Tower #1, Tower #2 and Tower #3 exceeded
   that authorized by 10.6%, 47.5%, and 14.7%, respectively. The relative
   phases for Tower #1, Tower #2 and Tower #3 exceeded that authorized by
   87o, 94.5o and 15o, respectively.

   47 U.S.C. S: 308(b).

   47 C.F.R. S: 1.89(c).

   Section 1.16 of the Commission's Rules provides that "[a]ny document to be
   filed with the Federal Communications Commission and which is required by
   any law, rule or other regulation of the United States to be supported,
   evidenced, established or proved by a written sworn declaration,
   verification, certificate, statement, oath or affidavit by the person
   making the same, may be supported, evidenced, established or proved by the
   unsworn declaration, certification, verification, or statement in writing
   of such person . . . . Such declaration shall be subscribed by the
   declarant as true under penalty of perjury, and dated, in substantially
   the following form . . . : `I declare (or certify, verify, or state) under
   penalty of perjury that the foregoing is true and correct. Executed on
   (date). (Signature)'." 47 C.F.R. S: 1.16.

   18 U.S.C. S: 1001 et seq. See also 47 C.F.R. S: 1.17.

   P.L. 93-579, 5 U.S.C. S: 552a(e)(3).

                       Federal Communications Commission


                       Federal Communications Commission