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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Palmetto Broadcasting Company, ) File No. EB-03-AT-085
Inc. ) NAL/Acct. No. 200332480024
Anderson, South Carolina ) FRN 0008-9109-45
Adopted: September 3, 2004 Released: September 8,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand dollars
($2,000) to Palmetto Broadcasting Company, Inc. (``Palmetto''),
licensee of station WAIM-AM, Anderson, South Carolina, and owner
of an unregistered antenna structure utilized by station WAIM-AM,
for willful and repeated violation of Section 17.4(a) of the
Commission's Rules (``Rules'').1 The noted violation involves
Palmetto's failure to register its antenna structure.
2.On May 7, 2003, the Commission's Atlanta, Georgia Office
(``Atlanta Office'') issued a Notice of Apparent Liability for
Forfeiture (``NAL'') to Palmetto in the amount of five thousand
dollars ($5,000).2 Palmetto filed a response on June 2, 2003.
2. On April 16, 2003, an agent from the Commission's
Atlanta Office conducted an inspection of station WAIM-AM's
antenna structure. The agent checked the Commission's Antenna
Structure Registration Database and determined that the structure
was not registered. Palmetto owns the antenna structure and
station WAIM-AM's license requires that the antenna structure be
painted and lighted because it is over 200 feet tall.
3. On April 16, 2003, the agent also inspected station
WAIM-AM's Emergency Alert System (``EAS'') equipment. When asked
to produce station logs for the previous three months, station
personnel could not provide any records of EAS tests or
activations, reasons for failure to receive and conduct such
tests, or any entries showing EAS equipment had been removed from
service for repair. Further, in response to a direct question by
the agent, the station's general manager stated that he could not
remember when the station had last conducted an EAS test. Based
upon the station manager's contemporaneous statements and the
absence of any required records, the agent concluded that station
WAIM-AM had not conducted either weekly or monthly tests for the
immediate prior three-month period. On May 7, 2003, the Atlanta
Office issued an NAL to Palmetto for willful and repeated
violation of Sections 11.61(a) and 17.4(a) of the Rules. In its
response, Palmetto claims that, contrary to the allegations
contained in the NAL, it does monitor and conduct both weekly and
monthly tests of the EAS, but acknowledges that it was unable to
produce supporting logs. Palmetto states that an employee
accidentally discarded the logs. Palmetto supplemented its
response with a sworn statement by its general manager concerning
the EAS testing. Further, Palmetto admits that its antenna
structure is not registered, but does not agree that the
violation was willful or repeated. Finally, Palmetto discusses
its poor financial situation and provides copies of its 2000,
2001, and 2002 tax returns, presumably to demonstrate its
inability to pay the forfeiture.
4. The forfeiture amount in this case was proposed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended (``Act''),3 Section 1.80 of the Rules,4 and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines.5 In
examining Palmetto'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 may
5. Section 11.61 of the Rules requires broadcast stations
to (a) conduct monthly EAS tests from designated local primary
EAS sources and retransmit the monthly test within 60 minutes of
its receipt and (b) conduct tests of the EAS header and EOM codes
at least once a week at random days and times.7 The Atlanta
Office found that Palmetto had failed to conduct EAS tests for at
least the three-month period prior to the inspection based upon
its failure to be able to produce EAS logs for that time-period
and the general manager's contemporaneous statement that he
``could not remember the last time the station had conducted EAS
tests.'' In its response, Palmetto's general manager takes issue
with the assertion in the NAL as to the meaning of his statement
given at the time of the inspection. Palmetto claims that,
although it did monitor and conduct both weekly and monthly EAS
tests, it was unable to produce the requested logs because they
had been inadvertently discarded.8 Palmetto supplemented its
response with a sworn statement of its general manager indicating
that it did conduct weekly and monthly tests of the EAS system as
of the date of the inspection and for at least the three months
immediately prior to the inspection. After reviewing the record
in this case, we find that the ambiguity of the contemporaneous
statement does not support a finding that Palmetto willfully and
repeatedly violated Section 11.61 by failing to conduct weekly
and monthly tests. Therefore, we cancel the portion of the
forfeiture proposed for violation of Section 11.61(a) of the
6. Section 17.4(a) of the Rules requires that the owner of
any proposed antenna structure that requires notice of proposed
construction to the Federal Aviation Administration (``FAA'')
must register the structure with the Commission. Palmetto's
antenna structure required notice to the FAA, and thus Commission
registration, because the structure exceeded 200 feet in height
above ground.9 As of April 16, 2003, the date of the inspection,
Palmetto had failed to register its antenna structure. In fact,
Commission records indicate that the antenna structure still has
not been registered. Although Palmetto claims that it had other
priorities, that the Commission's Antenna Structure Registration
Database is not user-friendly, and that it had difficulty
obtaining the FAA aeronautical study number, these circumstances
do not justify Palmetto's failure to register its antenna
7. Palmetto disagrees that its violation of Section
17.4(a) of the Rules was willful or repeated arguing that it has
attempted several times to register its antenna structure.
Because Palmetto was admittedly aware of the requirement to
register its antenna structure but failed to do so, we find
Palmetto's failure to register its antenna structure to be
willful10 and repeated11 violations of Section 17.4(a) of the
8. Finally, Palmetto provides its 2000, 2001, and 2002
federal income tax returns presumably to demonstrate its
inability to pay the forfeiture. After reviewing the
documentation, we conclude that reduction of the remaining $3,000
forfeiture to $2,000 is warranted in this case.
9. Palmetto has stated that its antenna structure still is
not registered and our search of the Commission's Antenna
Structure Registration Database confirms that it is not
registered as of August 25, 2004. Accordingly, we require,
pursuant to Section 308(b) of the Act,12 that Palmetto report to
the Enforcement Bureau no more than thirty (30) days following
the release of this Order how it has achieved compliance with
Section 17.4 of the Rules for its antenna structure. Palmetto's
report must be submitted in the form of an affidavit signed by an
officer or director of Palmetto.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,13 Palmetto Broadcasting Company, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of two thousand dollars
($2,000) for its willful and repeated failure to register its
antenna structure in violation of Section 17.4(a) of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section 308(b)
of the Act, Palmetto must submit the report described in
Paragraph 10, above, within no more than thirty (30) days
following the release of this Order, to Federal Communications
Commission, Enforcement Bureau, Spectrum Enforcement Division,
445 12th Street, S.W., Room 7-A728, Washington, D.C. 20554,
Attention: Jacqueline Ellington, Esq.
13. 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.14
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, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
10. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail, Return Receipt
Requested, to Palmetto Broadcasting Company, Inc., 2203 Old
Williamston Rd., Anderson, South Carolina 29621.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.4(a).
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480024 (Enf. Bur., Atlanta Office, May 7, 2003).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 11.61. The required monthly and weekly tests are
required to conform with the procedures in the EAS Operational
Handbook. See also Amendment of Part 11 of the Commission's
Rules Regarding the Emergency Alert System, EB Docket No. 01-66,
Report and Order, FCC 02-64 (Feb. 26, 2002); 67 Fed Reg 18502
(April 16, 2002) (effective May 16, 2002, the required monthly
EAS test must be retransmitted within 60 minutes of receipt).
8 Broadcast stations are required to retain station logs and
produce them upon request by the FCC. Such logs must include
entries that, among other things, contain EAS tests that are
received and transmitted. The logs must be retained for two
years. Palmetto should, therefore, have had the logs available.
See, generally, § 73.1860.
9 47 C.F.R. § 17.7.
10 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',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
11 As provided by 47 U.S.C. § 312(f)(2), a continuous violation
is ``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn 56 (2003).
12 47 U.S.C. § 308(b).
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.