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                         Before the
              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-

                      FORFEITURE ORDER

     Adopted:  July 8, 2003                       Released:  
July 10, 2003

By the Chief, Enforcement Bureau:

                      I.   Introduction

     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

                       II.  Background

     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.

                       III. Discussion

     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 
years later.14  

     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 
agent's inspection.

     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 


                         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.