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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Atlantic Beach Radio, Inc. ) File No. EB-02-
Licensee of Radio Station WMIR(AM) ) NAL/Acct. No.
Atlantic Beach, South Carolina ) FRN: 0006-
Adopted: July 8, 2003 Released:
July 10, 2003
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of $4,000 to Atlantic
Beach Radio, Inc. (``Atlantic Beach Radio''), licensee of
WMIR(AM), Atlantic Beach, South Carolina, for repeatedly
violating Sections 11.35 and 73.1745 of the Commission's
Rules (``Rules'').1 The noted violations involve Atlantic
Beach Radio's failure to maintain operational Emergency
Alert System (``EAS'') equipment and overpower nighttime
2. On June 24, 2002, the District Director of the
Commission's Atlanta, Georgia Field Office (``Atlanta
Office'') issued a $12,000 Notice of Apparent Liability for
Forfeiture (``NAL'') to Atlantic Beach Radio alleging
repeated and willful violations of Sections 11.35 and
73.1745 of the Rules.2 On July 24, 2002, Atlantic Beach
Radio filed a response to the NAL.3
3. From May 6-8, 2002, a field agent from the Atlanta
Office inspected WMIR(AM) in Atlantic Beach, South Carolina
and observed the violations recounted in the NAL. On May 6
and 7, 2002, the agent conducted field strength measurements
and observed that Atlantic Beach Radio failed to reduce
WMIR(AM)'s power from its authorized daytime to nighttime
level. On May 8, 2002, the agent inspected the station and
found that although it possessed an EAS encoder/decoder
unit, the EAS unit was not in operational mode and was not
connected to any receivers. Furthermore, the agent found
that WMIR(AM) did not have any EAS logs to demonstrate that
its EAS unit had ever been installed and operational or that
it had been taken out of service for repairs.
4. On May 8, 2002, the agent met with WMIR(AM)'s
station manager, who told him that WMIR(AM) had been sharing
an EAS unit with previously co-owned and co-located station
WKVC(FM), North Myrtle Beach, South Carolina. The station
manager did not have any logs to corroborate that statement.
Regarding the nighttime power level issue, the station
manager told the agent that WMIR(AM)'s transmitter was on an
automatic timer that should have powered down the station.
He said that he would contact the station engineer, who was
out of town, notify him of the issue, and get instructions
on how to reduce the station's power level.
5. On the evening of May 8, 2002, the agent conducted
another round of field strength measurements and determined
that Atlantic Beach Radio had reduced WMIR(AM)'s power at
sunset, but still not to the Commission-authorized nighttime
6. During the week of May 15-21, 2002, the agent and
WMIR(AM)'s station engineer held telephonic conversations
regarding the agent's observations. According to the
station engineer, WMIR(AM) had been sharing an EAS unit with
WKVC(FM), which had been located in the same building as
WMIR(AM). The station engineer stated that WMIR(AM) had
purchased its EAS unit about one month prior to the agent's
inspection when WKVC(FM)'s EAS unit was removed. During the
conversations, the station engineer informed the agent that
he had discovered that WMIR(AM)'s automatic timer used to
reduce the station's power at sunset had been damaged,
resulting in the station's failure to reduce its power to
nighttime levels on May 6 and 7, 2002. The station engineer
added that operator error caused the failure to reduce power
to the authorized nighttime level on May 8, 2002. The
Atlanta Office issued the subject NAL on June 24, 2002 to
Atlantic Beach Radio for failing to maintain operational EAS
equipment and operating with excessive power.
7. The District Director assessed the forfeiture
amount in this case 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 Amendments of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement'').6 In examining Atlantic Beach Radio's response
to the NAL, Section 503(b) of the Act requires the
Commission to 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 such other matters as
justice may require.7
8. Atlantic Beach Radio presents WMIR(AM)'s history
of sharing an EAS unit with formerly co-located WKVC(FM) to
suggest that its EAS violation, if any, was minor.
According to Atlantic Beach Radio, WMIR(AM) and WKVC(FM)8
were co-located, under common ownership, and their
respective communities of license were only two miles apart.
Atlantic Beach Radio's principal was also the principal of
Covenant Educational Fellowship, Inc. (``CEF''), the entity
which held the license for WKVC(FM). Atlantic Beach Radio
asserts that approximately eighteen months prior to
WMIR(AM)'s July 2002 response to the NAL, CEF assigned the
license for WKVC(FM) to another entity.9 According to
statements, made under the penalty of perjury, from WMIR(AM)
and WKVC(FM)'s station managers, which accompanied Atlantic
Beach Radio's response, following the change in ownership,
the two stations continued to share the studio site and
certain equipment, including the EAS unit. The statements
provide further that, at the end of April 2002, WKVC(FM)
relocated its main studio, taking with it the shared EAS
unit. WMIR(AM)'s station manager's statement provides that
when WKVC(FM) moved out, Atlantic Beach Radio directed its
station engineer to acquire a replacement EAS unit.
Atlantic Beach Radio notes that the FCC agent viewed the new
EAS unit at the time of his inspection and states that
Atlantic Beach Radio installed that unit within the sixty-
day period ``allowed'' by the Rules.10 In sum, Atlantic
Beach Radio argues that its shared EAS operation complied
with the ``spirit'' of our Rules and that it should not be
punished for this type of use. In the alternative, Atlantic
Beach Radio suggests that if we do find that it violated the
Rules, we should only find a minor violation here.
9. Under Section 11.51(j) of the Rules,11 broadcast
stations that are co-owned and co-located with a combined
studio or control facility may provide the EAS transmitting
requirements contained in Section 11.51 of the Rules12 for
the combined stations with one EAS encoder.13 The moment
that WMIR(AM) and WKVC(FM) were no longer co-owned, the
stations were no longer permitted to share the EAS unit
under Section 11.51(j) of the Rules, and, therefore, each
station was obligated to have its own operational EAS
encoder pursuant to Section 11.35 of the Rules. In this
case, common ownership dissolved on June 16, 2000, yet
WMIR(AM) and WKVC(FM) continued with their non-compliant EAS
sharing arrangement until April of 2002žalmost a full two
10. In their declarations, the station managers state
that when WKVC(FM) moved out of the shared facility and took
the EAS unit with it, which took place at the end of April
2002, shortly before the FCC agent's inspection, Atlantic
Beach Radio directed its station engineer to ``acquire a
replacement EAS unit to . . . [replace] the shared unit.''15
At the time of the agent's inspection, Atlantic Beach Radio
had not yet installed that EAS equipment,16 which WMIR(AM)'s
station manager now declares ``is installed and properly
functioning.''17 Accordingly, we conclude that the record
is sufficient to support a finding that Atlantic Beach Radio
repeatedly18 violated Section 11.35 of the Rules.19 We will
credit, however, Atlantic Beach Radio for its good faith
attempt at compliance by purchasing EAS equipment before our
11. We now turn to the overpower nighttime operation.
Atlantic Beach Radio proffers that the agent observed the
station during its first attempt at nighttime operation and
that following that attempt the station engineer determined
that the system was not properly functioning. Atlantic
Beach Radio tells us that the station engineer is further
investigating and testing the nighttime system and believes
that WMIR(AM) can shortly resume full-time licensed
operations. Conceding that it committed a technical
violation, Atlantic Beach Radio asks us to consider its
prompt remedial action and the information its station
engineer provided to our agent as mitigating factors in this
12. We find that, on May 6, 7, and 8, 2002, Atlantic
Beach Radio operated WMIR(AM) with excessive nighttime power
in repeated violation of Section 73.1745 of the Rules.20 We
grant no credit for what merely amounts to Atlantic Beach
Radio's remedial action,21 prompt though it may be, and its
responses to our agent's inquiries, which, as a Commission
licensee, it is obligated to provide.
13. Atlantic Beach Radio further asserts that it has
not received either a Commission Notice of Violation or
complaints from the public and that we should consider this
exemplary record, it continues, in mitigating the $12,000
forfeiture amount. On another tack, Atlantic Beach Radio
provides us with financial documentation in support of its
request that we waive or reduce the forfeiture amount based
on its inability to pay. Our examination of Commission
records reveals that Atlantic Beach Radio does have a
history of overall compliance with our Rules. Also, after
reviewing Atlantic Beach Radio's financial documentation, we
conclude that a reduction of the forfeiture amount is
warranted. Consequently, after factoring in the appropriate
downward adjustment criteria related to Atlantic Beach
Radio's good faith effort, history of overall compliance,
and inability to pay, we will reduce the $12,000 forfeiture
amount to $4,000.
IV. Ordering Clauses
14. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act,22 and Sections 0.111, 0.311, and
1.80(f)(4) of the Rules,23 Atlantic Beach Radio Group, Inc.
IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000
for repeatedly violating Sections 11.35 and 73.1745 of the
15. Payment of the forfeiture shall be made in the
manner provided for in Section 1.8024 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.25 Payment 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 must include the FCC Registration Number
(``FRN'') referenced above, and should also note the
NAL/Acct. No. referenced above. 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. 20554.26
16. IT IS FURTHER ORDERED that a copy of this Order
shall by sent by first class and certified mail, return
receipt requested, to David M. Hunsaker, Esq., Putbrese,
Hunsaker & Trent, P.C., 100 Carpenter Drive, Suite 100, P.O.
Box 217, Sterling, Virginia 20167-0217 and Atlantic Beach
Radio, Inc., P.O. Box 35884, Fayetteville, North Carolina
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 11.35, 73.1745.
2 Atlantic Beach Radio, Inc., NAL/Acct. No. 200232480007
(Enf. Bur., Atlanta Office rel. June 24, 2002).
3 Atlantic Beach Radio styles its response as a petition for
reconsideration pursuant to Section 1.106 of the Rules, 47
C.F.R. § 1.106. Atlantic Beach Radio mistakenly believes
that we issued it both a NAL and a Forfeiture Order.
However, as we have not previously issued a Forfeiture Order
in this proceeding, we will treat the pleading as a response
to the NAL pursuant to Section 1.80(f)(3) of the Rules, 47
C.F.R. § 1.80(f)(3).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 12 FCC Rcd 17,087 (1997), recon. denied, 15 FCC Rcd 303
7 47 U.S.C. § 503(b)(2)(D).
8 Formerly WMIW-FM.
9 Our records reveal that on May 11, 2000, the Media Bureau
granted the application for assignment of the license from
CEF to Educational Media Foundation (BALED 20000328ABY).
The assignment was consummated on June 16, 2000.
10 Atlantic Beach Radio refers to the 60-day window provided
in Section 11.35(b) of the Rules, whereby a station that has
defective EAS equipment may operate without the defective
equipment pending its repair or replacement without further
FCC authority. See 47 C.F.R. § 11.35(b).
11 47 C.F.R. § 11.51(j).
12 47 C.F.R. § 11.51.
13 In addition, the combined stations must meet the
requirements contained in Section 11.32 of the Rules, 47
C.F.R. § 11.32.
14 Our discussion of Atlantic Beach Radio's violation of
Section 11.51 relates only to diminish its claim of good
faith, and does not correspond to a separate monetary
liability in this proceeding.
15 Declaration of Reggie Dyson, WMIR(AM) Station Manager,
Attachment A to Atlantic Beach Radio's response; see
Declaration of Kurt Reeder, WKVC(FM) Station Manager,
Attachment B to Atlantic Beach Radio's response.
16 To the extent that Atlantic Beach Radio argues that its
60 days had not run, we reject its position because it makes
no claim of defective EAS equipment, but, rather, simply
loss of access to EAS equipment. See supra n.10.
17 Declaration of Reggie Dyson, WMIR(AM) Station Manager,
Attachment A to Atlantic Beach Radio's response.
18 Section 312(f)(2) of the Act defines the term
``repeated,'' when used with reference to the commission or
omission of any act, as ``the commission or omission of such
act more than once, if such commission or omission is
continuous, for more than one day.'' 47 U.S.C. § 312(f)(2).
19 In light of our determination that Atlantic Beach Radio
repeatedly violated Section 11.35 of the Rules, it is
unnecessary for us to determine whether that violation is
also willful as alleged in the NAL. See Koke, Inc., 23 FCC
2d 191 (1970).
20 See id. (with respect to repeated violation of Section
73.1745 of the Rules).
21 See AT&T Wireless Servs., Inc., 17 FCC Rcd 21,866, 21,869
(2002); Tri-County Broadcasting, Inc., DA 03-1551 (Enf.
Bur., rel. May 13, 2003).
22 47 U.S.C. § 503(b).
23 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
24 47 C.F.R. § 1.80.
25 47 U.S.C. § 504(a).
26 47 C.F.R. § 1.1914.