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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
JMK Communications, Inc. ) File Number EB-02-CF-723
WTRI ) NAL/Acct. No. 200332340005
Brunswick, Maryland ) FRN: 0006-1615-09
Adopted: August 17, 2004 Released: August 19,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eighteen thousand dollars
($18,000) to JMK Communications, Inc. (``JMK''), licensee of
WTRI, Brunswick, Maryland for willful violation of Sections 1.89,
73.49, and 73.1125(a) of the Commission's Rules (``Rules'')1.
The noted violations involve failure to respond to Commission
correspondence, failure to enclose station antenna within an
effective locked fence or enclosure, and failure to maintain a
meaningful staff presence at the main studio.
2. On April 28, 2003, the Commission's Columbia, Maryland
Field Office (``Columbia Office'') released a Notice of Apparent
Liability for Forfeiture (``NAL'') to JMK proposing a forfeiture
in the amount of eighteen thousand dollars ($18,000) for willful
violation of Sections 1.89, 73.49, and 73.1125(a) of the Rules.2
JMK filed a response on May 28, 2003.
3. In its response to the NAL, JMK denies that it
willfully3 violated Sections 1.89, 73.49, and 73.1125(a) of the
Rules. JMK seeks reduction or cancellation of the proposed
forfeiture on the following grounds: that ``appropriate steps
have been taken to ensure proper future handling'' of important
Commission correspondence to avoid future mail mishaps, that the
failure to maintain a meaningful staff presence at the main
studio of WTRI was a ``temporary anomaly occasioned by an
unfortunate medical situation,'' that the gap in JMK's fence was
not large enough to allow public access and is surrounded by an
outer perimeter fence which provides a further barrier to public
access, and that the licensee has a history of compliance with
the Commission's Rules.
4. On November 14, 2002, an agent from the Columbia Office
attempted an inspection of station WTRI, Brunswick, Maryland for
compliance with FCC Rules. The agent found that the station
failed to maintain a meaningful staff presence at the main studio
because it was locked and unstaffed from 1:10 p.m. until the
agent departed the studio address at 3:45 p.m. The agent also
observed that the station did not have one of the three antenna
towers enclosed within an effective locked fence. On November
22, 2002, the agent returned to the station. Again, the main
studio was locked and unstaffed. The agent found a note on the
studio door directing visitors across the street to the residence
of a station employee. The agent found the employee and
completed an inspection. The employee identified himself as the
chief engineer. The FCC agent found no management staff presence
at the main studio.
5. On December 16, 2002, the Columbia Office issued a
Notice of Violation (``NOV'') to JMK for violations of Commission
Rules. The NOV was mailed to the address of record, but no reply
was received to the NOV. On January 17, 2003, the Columbia Office
issued a follow up letter to the NOV with a copy of the NOV
attached. The Columbia Office received a postal receipt proving
delivery of the letter on January 25, 2003, but did not receive a
reply to the January 17 letter.
6. The forfeiture amount in this case was proposed 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.6 In
examining JMK'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 such other matters as justice may
7. Section 1.89 of the Rules specifies that the recipient
shall send a written reply within ten days of receipt of an
official notice to the Commission office originating the official
notice. The Columbia Office received no reply to the NOV or
follow-up letter. JMK admits that its agent received but
neglected to forward the certified NOV to the attention of its
President or other appropriate personnel. JMK does not contest
the violation and states that it has undertaken steps to prevent
such a violation from recurring in the future.
8. Section 73.1125(a) of
the Rules requires that licensees maintain a main studio. On
November 14, 2002, a Columbia Office agent attempted to inspect
the station during normal business hours and found the main
studio locked and unmanned. JMK concedes that the studio was
unmanned for six hours, but argues that this was a ``temporary
anomaly'' because the operator has special medical needs and had
to leave for medical attention. Were this to have been a one
time aberration because of health, we might agree with the
licensee. However, a few days later, at the time of inspection
on November 22, 2002, JMK still had no management presence at the
main studio, only maintenance staff. Additionally, JMK's
practice of putting a sign on a radio station door directing the
public to return later or indicating that a station employee can
be found down the street does not constitute the required
meaningful management and staff presence at the main studio
location.8 In Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd
3615 (1991), clarified, 7 FCC Rcd 6800 (1992), the Commission
defined a minimally acceptable ``meaningful presence'' as full-
time managerial and full-time staff personnel present during
normal business hours.''9 JMK states that it has now undertaken
several actions to improve and upgrade the station's monitoring
and control capabilities and to mitigate the violation.10
However, these efforts do not establish the requisite meaningful
staff presence at the studio in the past.
9. Section 73.49 of the Rules requires that antenna towers
having radio frequency potential at the base be enclosed within
effective locked fences or other enclosures. On November 14,
2002, a Columbia Office agent discovered and photographed a large
gap in the fence around one of the station's towers where the
fencing had pulled away from its supporting structure. In its
response, JMK submitted some pictures dated six months later, on
May 28, 2003 as proof that the reported gap in its fence was not
large enough to ``permit members of the public to approach the
WTRI tower.'' However, pictures taken by JMK several months later
do not rebut the agent's earlier observations, corroborated by
pictures, of a large gap. Additionally, the agent's
contemporaneous record of the November 14, 2002, inspection
indicates the existence of an approximate six foot break in JMK's
outer perimeter fence. Therefore, this perimeter fence was not a
sufficient barrier to prevent the public from accessing the
tower. JMK also argues that, in contrast to recent cases Truth
Broadcasting Corporation, 17 FCC Rcd 24376 (Enf. Bur. 2002),
Culpeper Broadcasting Corporation, 15 FCC Rcd 12594 (Enf. Bur.
2000), Mitchell Communications, Inc., 11 FCC Rcd 22391 (Enf. Bur.
2002) and Wilson Broadcasting Co., 18 FCC Rcd 4864 (Enf. Bur.
2003), JMK's fence was indeed effective. We disagree. We find
that the gap in JMK's fence was large enough to allow public
access, and that JMK lacked an outer perimeter fence which could
have provided a further barrier to public access.
10. JMK maintains it is no longer in violation of Sections
1.89, 73.1125(a) and 73.49 of the Rules and has taken several
steps to remedy the defects identified by the Commission agent.
However, no mitigation is warranted on the basis of JMK's post-
inspection efforts to correct the violations. As the Commission
stated in Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994),
``corrective action taken to come into compliance with Commission
rules or policy is expected, and does not nullify or mitigate any
prior forfeitures or violations.''11
11. Finally, in support of its request for cancellation or
reduction, JMK states that it has ``an overall past history of
compliance with the Commission's rules.'' After a review of
Commission records, we have determined that no mitigation is
warranted for a history of overall compliance. On March 4, 2004,
the Columbia Office issued an NAL to JMK for violations of
Sections 11.35(a), 73.1745(a), 73.3526(e)(5) and 73.3526(e)(12)
of the Rules12 at Radio Station WPWC, Dumfries-Triangle, VA,
licensed to JMK. JMK, therefore, has no history of overall
12. Considering the entire record and the factors listed
above, we find that there is no basis for cancellation or
reduction of the proposed monetary forfeiture. Accordingly, we
find that JMK willfully violated Sections 1.89, 73.1125(a), and
73.49 of the Rules and assess an $18,000 forfeiture.
13. As of the adoption date of this Order, JMK has not
provided evidence that it has complied with Section 73.1125(a) of
the Rules. Based upon the licensee's history of non-compliance,
we will require, pursuant to Section 308(b) of the Act,14 that
JMK report to the Enforcement Bureau no more than thirty (30)
days following the release of this Order whether it has come into
compliance with Section 73.1125(a) by demonstrating that the
required meaningful staff and management presence is being
maintained at the WTRI studio. JMK's report must be submitted in
the form of an affidavit or declaration, under penalty of
perjury, signed by an officer or director of the licensee.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act15, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's Rules16, JMK Communications, Inc., IS LIABLE FOR
A MONETARY FORFEITURE in the amount of eighteen thousand dollars
($18,000) for its willful violation of Sections 1.89, 73.49, and
73.1125(a) of the Rules.
15. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's Rules17 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 credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995
or 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. Payment by overnight mail may be sent to Bank
One/LB 73482, 525 West Monroe, 8th Floor Mailroom, Chicago,
Illinois 60661. Payment by wire transfer may be made to ABA
Number 071000013, receiving bank Bank One, and account number
1165259. The payment must include the FCC Registration Number
(FRN) and the NAL/Acct. No. referenced in the caption. Requests
for full payment under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.19
16. IT IS FURTHER ORDERED that, pursuant to
Section 308(b) of the Act, JMK must submit the report described
in Paragraph 13 above, no more than thirty (30) days following
the release of this Order, to the Federal Communications
Commission, Spectrum Enforcement Division, 445 12th Street, S.W.,
Room 4-A223, Washington, D.C. 20554, Attention: Emmitt Carlton,
17. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent by First Class and Certified Mail, Return
Receipt Requested, to JMK Communications, Inc., 4525 Wilshire
Boulevard, Los Angeles, California, 90010 and to its counsel,
Peter Gutmann, Esq., Carlyle, Sandridge & Rice, Seventh Floor,
1401 Eye Street, N.W., Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 1.89, 73.49, and 73.1125(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332340005 (Enf. Bur., Columbia Office, released April 28,
3 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).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 U.S.C. § 503(b)(2)(D).
8 See Main Studio and Program Origination Rules, 2 FCC Rcd 3215,
3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1998).
9 See Jones Eastern, 6 FCC Rcd at 3616 n.6; 7 FCC Rcd at 6800.
10 JMK also argues that its situation is not ``comparable in
gravity to those'' in A-O Broadcasting Corporation, 17 FCC Rcd
24184 (2002) or the Mass Media Bureau's Memorandum Order and
Opinion in B&C Kentucky, 16 FCC Rcd 9305 (MMB 2001) ``in which
the respective stations had no studio at all.'' We reject the
argument. The record in this case demonstrates that on at least
two occasions, when the agent sought to inspect WTRI's main
studio, the facility failed to meet the main studio requirements.
The facility was locked and inaccessible, and there was no
management staff present. In effect, there was no main studio.
Accordingly, WTRI violated Section 73.1125(a).
11 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
12 47 C.F.R. § 11.35(a), 73.1745(a), 73.3526(e)(5) and
13 See Mega Communications of St. Petersburg Licensee, L.L.C., 16
FCC Rcd 15948,49 (Enf. Bur. 2001).
14 47 U.S.C. § 308(b).
15 47 U.S.C. § 503(b).
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 C.F.R. § 1.80.
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.