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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
L.T. Simes II and Raymond Simes ) File No. EB-02-OR-196
Licensee of KAKJ(FM), ) NAL/Acct. No. 200232620007
Marianna, Arkansas )
) FRN 0007-2844-17
Owner of Unregistered Antenna Structure )
near Marianna, Arkansas )
West Helena, Arkansas )
Adopted: April 29, 2003 Released: May 1, 2003
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand dollars
($3,000) to L.T. Simes II and Raymond Simes (collectively,
``Simes''), licensee of FM station KAKJ, Marianna, Arkansas,
and owners of an unregistered antenna structure located at
geographic coordinates 34º 47' 20'' North latitude and 090º
47' 08'' West longitude near Marianna, Arkansas, for willful
violation of Sections 11.35(a), 17.4(a) and 73.1350(a) of the
Commission's Rules (``Rules'').1 The noted violations involve
Simes's failure to ensure that Emergency Alert System
(``EAS'') equipment was installed and operational at KAKJ,
failure to register the antenna structure for KAKJ with the
Commission, and failure to operate KAKJ in accordance with the
terms of its station authorization.
2. On July 22, 2002, the Commission's New Orleans,
Louisiana Field Office (``New Orleans Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to Simes
for a forfeiture in the amount of fifteen thousand dollars
($15,000).2 Simes filed a response to the NAL on August 22,
3. On May 22, 2002, an agent from the New Orleans Office
inspected an antenna structure which was located at 34º 47'
20'' North latitude and 090º 47' 08'' West longitude near
Marianna, Arkansas. The agent observed that there was no
antenna structure registration (``ASR'') number posted on or
near the base of the antenna structure. The owner of the
property on which the structure was located told the agent
that the structure was owned by the licensee of a radio
station that operates on 105.3 MHz in West Helena, Arkansas.
A search of Commission records indicated that KAKJ is licensed
to operate on 105.3 MHz in West Helena, Arkansas.
4. On May 23, 2002, the agent inspected the studio of KAKJ
in West Helena, Arkansas, accompanied by Raymond Simes, the
general manager and one of the principal owners of KAKJ. At
the time of the inspection, the agent observed that the
station did not have any EAS equipment installed. In
addition, there were no station logs that would indicate that
the station had ever had EAS equipment installed or that the
EAS equipment had been removed for repairs.3 The agent also
observed that the station authorization for KAKJ authorizes an
antenna structure of 330 feet in height and located at
geographic coordinates 34º 47' 14'' North latitude and 090º
46' 03'' West longitude. However, Mr. Simes confirmed that
the antenna structure observed by the agent the previous day
at geographic coordinates 34º 47' 20'' North latitude and 090º
47' 08'' West longitude was owned by Simes and was the
transmitting antenna for KAKJ. Thus, the actual location of
KAKJ's transmitting antenna was approximately one mile west of
its authorized location. Mr. Simes was unable to explain the
discrepancy between the authorized location and actual
location of the transmitting antenna. Finally, Mr. Simes
stated that he believed that the antenna structure had been
properly registered, but was unable to provide any
documentation to support this claim.
5. On June 14, 2002, the agent searched the Commission's
ASR database and determined that the antenna structure for
KAKJ was not registered.
6. On July 22, 2002, the New Orleans Office issued an NAL
to Simes for a forfeiture in the amount of $15,000 for failure
to install EAS equipment at KAKJ in willful violation of
Section 11.35(a) of the Rules, failure to register the antenna
structure for KAKJ in willful violation of Section 17.4(a) of
the Rules, and failure to operate KAKJ in accordance with the
terms of its station authorization in willful violation of
Section 73.1350(a) of the Rules. In the response to the NAL,
Simes does not dispute that the violations occurred, but seeks
cancellation or reduction of the forfeiture amount. Simes
asserts that KAKJ is located in a poor, rural area where it is
difficult to find a dependable broadcast engineer. Simes
indicates that a contract engineer provided the appropriate
notification for the antenna structure to the Federal Aviation
Administration in 1994, but asserts that, without an engineer,
it was not aware of the rule changes implemented in 1996 which
required registration of antenna structures with the FCC. In
addition, Simes states that it was not aware that the
geographic coordinates for its antenna structure, which were
specified in its original construction permit application in
1993 by the contract engineer who prepared the application,
were incorrect. Simes also indicates that it intends to
install EAS equipment and to register its antenna structure.
Finally, Simes asserts that it cannot afford to pay the
forfeiture and provides copies of its tax returns for 1999,
2000 and 2001 in support of this assertion.
7. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),4 Section 1.80 of the Rules,5 and
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) (``Policy Statement''). In examining Simes's
response, Section 503(b) of the Act requires that the
Commission take into account 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
8. Section 11.35(a) of the Rules provides that a broadcast
station must ensure that EAS equipment is installed so that
the monitoring and transmitting functions are available during
the times the station is in operation. Simes acknowledges in
its response to the NAL that it did not have EAS equipment
installed at KAKJ at the time of the May 23, 2002 inspection.
Accordingly, we conclude that Simes violated Section 11.35(a)
of the Rules.
9. Section 17.4(a) of the Rules provides that, effective
July 1, 1996, the owner of any proposed or existing antenna
structure that requires notification of proposed construction
to the FAA must register the structures with the Commission.
Simes's antenna structure is approximately 330 feet in height
and therefore required notification to the FAA.7 Simes admits
that its antenna structure was not registered.8 We therefore
conclude that Simes violated Section 17.4(a) of the Rules.
10. Section 73.1350(a) of the Rules provides that each
broadcast licensee is responsible for maintaining and
operating its broadcast station in accordance with the terms
of the station authorization. The authorization for KAKJ
authorizes an antenna structure located at geographic
coordinates 34º 47' 14'' North latitude and 090º 46' 03'' West
longitude. Simes does not dispute that KAKJ's transmitting
antenna is located at coordinates 34º 47' 20'' North latitude
and 090º 47' 08'' West longitude, which is approximately one
mile from the coordinates specified in the authorization.
Accordingly, we conclude that Simes violated Section
73.1350(a) of the Rules.
11. We also conclude that Simes's violations were willful.
The term ``willful,'' as used in Section 503(b) of the Act,
does not require a finding that the rule violation was
intentional or that the violator was aware that it was
committing a rule violation.9 Rather, the term ``willful''
simply requires that the violator knew it was taking the
action in question, irrespective of any intent to violate the
Commission's rules.10 Simes asserts that it was not aware of
the changes to the antenna structure rules implemented in 1996
which required registration of antenna structures with the
FCC. However, we note that licensees are expected to become
familiar with and comply with the Commission's rules.11 Simes
offers no evidence of what steps, if any, it took to become
familiar with and comply with the Commission's rules.
Moreover, while Simes claims that the incorrect geographic
coordinates were provided by the contract engineer who
prepared its original construction permit application in 1993,
the Commission has long held that licensees are responsible
for the acts and omissions of their employees and
contractors.12 Furthermore, Simes certified in its license
application for KAKJ that it had constructed the station in
accordance with its construction permit,13 which specified
that the antenna structure was to be located at geographic
coordinates 34º 47' 14'' North latitude and 090º 46' 03'' West
12. In addition, although Simes indicates that it intends
to install EAS equipment and to register its antenna
structure, the Commission has stated that post-violation
remedial efforts to correct a violation are not mitigating
factors warranting reduction of a forfeiture.14 Simes also
asserts that it cannot afford to pay the proposed $15,000
forfeiture and provides its tax returns for 1999, 2000 and
2001 in support of this assertion. The Commission has
repeatedly held that a company's gross revenues are the best
indicator of its ability to pay a forfeiture.15 After
considering the financial documentation submitted by Simes, we
conclude that reduction of the forfeiture to $3,000 is
13. We have examined Simes's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Simes willfully violated Sections 11.35(a),
17.4(a) and 73.1350(a) of the Rules, but we reduce the
forfeiture proposed for these violations from $15,000 to
14. Finally, we note that a search of Commission's ASR
database revealed that, as of the release date of this Order,
Simes still had not registered its antenna structure with the
Commission. In addition, under Section 73.1690(b)(2) of the
Rules,16 a broadcast licensee must file an application for a
construction permit on FCC Form 301 to make any change in
station geographic coordinates, including coordinate
corrections of more than 3 seconds latitude and/or 3 seconds
longitude. To date, no such application has been filed to
correct the coordinates for KAKJ. Moreover, it is unclear
from the record whether Simes has yet installed EAS equipment
at KAKJ. Accordingly, we will require, pursuant to Section
308(b) of the Act, that Simes submit a report to the
Enforcement Bureau within 30 days of the release of this Order
demonstrating that it has filed an antenna structure
registration application and an application to correct the
station coordinates and installed EAS equipment. Simes'
report must be submitted in the form of an affidavit signed by
an officer of the licensee.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,17 L.T. Simes, II and Raymond Simes ARE LIABLE FOR A
MONETARY FORFEITURE in the amount of three thousand dollars
($3,000) for willful and repeated violation of Sections
11.35(a), 17.4(a) and 73.1350(a) of the Rules.
16. IT IS FURTHER ORDERED that, pursuant to Section 308(b)
of the Act, Simes must submit the report described in
paragraph 14 no later than thirty (30) days from the date of
release of this Order to: Federal Communications Commission,
Enforcement Bureau, Technical and Public Safety Division, 445
12th Street, S.W., Washington, D.C. 20554, Attention: Kathryn
Berthot, Room 7-C802.
17. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.18 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232620007 and FRN
0007-2844-17. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
18. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to L.T. Simes, II and Raymond Simes, P.O. Box 2870,
West Helena, Arkansas 72390.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 11.35(a), 17.4(a) and 73.1350(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232620007 (Enf. Bur., New Orleans Office, released July 22,
3 EAS activations and tests, failure to receive such tests and
EAS equipment malfunctions must be recorded in the station log.
See 47 C.F.R. §§ 11.35(a)-(b), 11.55(c)(7) and 11.61(b).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 See 47 C.F.R. § 17.7 (providing that notification to the FAA
is required for antenna structures that are more than 200 feet in
8 Owners of antenna structures in Arkansas were required to
register their existing antenna structures during a 30-day filing
window between January 1 to January 31, 1998. Streamlining the
Commission's Antenna Structure Clearance Procedure and Revision
of Part 17 of the Commission's Rules Concerning Construction,
Marking and Lighting of Antenna Structures, 11 FCC Rcd 4272, 4302
9 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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).
11 Sitka Broadcasting Company, Inc., 70 FCC 2d 2375, 2378
(1979), citing Lowndes County Broadcasting Company, 23 FCC 2d 91
(1970) and Emporium Broadcasting Company, 23 FCC 2d 868 (1970).
12 See MTD, Inc., 6 FCC Rcd 34, 35 (1991); Wagenvoord
Broadcasting Co., 35 FCC 2d 361 (1972).
13 File No. BLH-19950713KA.
14 See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
15 See Long Distance Direct, Inc., 15 FCC Rcd 3297, 3305
(2000); PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
16 47 C.F.R. § 73.1690(b)(2).
17 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.