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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,
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
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
(www.Birach.com) 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
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
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.
FEDERAL COMMUNICATIONS COMMISSION
David C. Dombrowski
Philadelphia District Office
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