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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File No. EB-03-TP-231 ) File No. EB-02-DT-1240
WSJM, Inc. ) ) )
) ) FRN 0007006884
NAL/Acct. No. 200332700030 ) NAL/Acct. No. 200332360005
Licensee of AM Radio Station )
WGMY, ) FRN 0007171432
South Haven, Michigan
) FRN 0007006884
Adopted: September 8, 2004 Released: September
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twelve thousand eight
hundred dollars ($12,800) to WSJM, Inc. (``WSJM''), licensee
of Station WGMY (AM), South Haven, Michigan, for willful
violation of numerous sections of the Commission's Rules
(``Rules''). The noted violations involve, respectively:
1) failure to maintain required records, in violation of
Sections 73.1820(a)(1)(i), 73.1820(a)(1)(iii) and
73.1870(c)(3) of the Rules;1 2) failure to make required
measurements or conduct required monitoring regarding EAS
monitoring sources, EAS tests, and observation of antenna
structures' lights, in violation of Sections 11.52(d),
11.61(a)(2)(i)(A) and 17.47(a)(1);2 3) failure to file
required forms or information regarding the registration of
two antenna structures, in violation of Section 17.4(a);3
and 4) failure to exhibit red obstruction lighting from
sunset to sunrise, in violation of Section 17.51(a).4
2. On September 23, 2002, the Commission's Detroit Office
received information that the top flashing obstruction
lights on each of two antenna structures and the side
lights on one of the two antenna structures located at
the corner of Wells and Dunkey Streets in South Haven,
Michigan had not been operating for two months. The
Detroit Office searched the Antenna Structure
Registration database and did not find any registered
structures in the area reported. The Detroit Office
requested that the South Haven Police Department
observe the antenna structure lights after sunset to
determine if the complaint was still valid.
3. On September 24, 2002, the South Haven Police
Department confirmed the antenna structure light
outages. An agent from the Detroit Office contacted
the Federal Aviation Administration (``FAA''), which
notified WSJM of the light outage report and issued a
Notice to Airmen (``NOTAM'').
4. On November 20, 2002, agents from the Detroit Office
conducted an inspection of WSJM's antenna structures.
The agents determined that all required structure
lighting was operational at that time, but found that
no Antenna Structure Registration Numbers were posted.
On November 21, 2002, agents from the Detroit Office
conducted an additional inspection, and found numerous
violations of the Commission's Rules. On December 5,
2002, the Detroit Office issued a Notice of Violation
(``NOV'') to WSJM for these rule violations. On
December 16, 2002, the Detroit Office received a reply
which indicated the corrective steps that WSJM had
instituted in response to the NOV.
5. On April 17, 2003, the Detroit Office issued a Notice
of Apparent Liability for Forfeiture (``NAL'') to WSJM,
finding that the station willfully5 and repeatedly6
violated the Commission's Rules, and proposed a
forfeiture in the amount of nineteen thousand dollars
($19,000).7 In particular, the Detroit Office
determined that WSJM had failed to maintain required
records, in violation of Sections 73.1820(a)(1)(i),
73.1820(a)(1)(iii) and 73.1870(c)(3) of the Rules; that
it had failed to make required measurements or conduct
required monitoring regarding EAS monitoring sources,
EAS tests, and observation of antenna structures'
lights, in violation of Sections 11.52(d),
11.61(a)(2)(i)(A) and 17.47(a)(1); that it had failed
to file required forms or information regarding the
registration of two antenna structures, in violation of
Section 17.4(a); and that it had failed to exhibit red
obstruction lighting from sunset to sunrise, in
violation of Section 17.51(a).
6. WSJM filed a response to the NAL on May 19, 2003. In
its response, WSJM does not dispute the NAL's findings.
Nevertheless, as detailed below, WSJM seeks a reduction
of the proposed forfeiture, based on its arguments
that: 1) it instituted prompt remedial action to
correct the violations; 2) its failure to register each
of its antenna structures resulted from a ``single
mistake of fact'' by its chief engineer; 3) WSJM was
only monitoring one EAS source because an antenna from
one of its EAS monitors had become dislodged; and 4)
the station has a history of overall compliance with
the Commission's Rules.
7. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),8
Section 1.80 of the Rules,9 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) (``Forfeiture Policy Statement'').
In examining WSJM'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
8. As stated above, WSJM does not dispute the NAL's
conclusion that WSJM violated the Commission's rules.
Instead, WSJM seeks reduction of the proposed
forfeiture, first on the basis that it took prompt
action to correct all of the violations noted in the
Detroit Office's NAL. For example, with regard to its
proposed forfeiture for failure to comply with
prescribed antenna structure lighting in violation of
Section 17.51(a) of the Rules, WSJM concedes that the
lights were out on two of its antenna structures ``at
some previous point,'' but insists that it took steps
to repair the lights ``immediately upon being notified
of the outage,'' and that the lights were repaired and
operational when the inspection occurred.11 WSJM's
remedial actions, however, to correct promptly
violations after they have been identified by a
Commission agent are expected, and do not warrant a
reduction in the forfeiture amount.12
9. WSJM also requests a reduction of the proposed
forfeiture on the basis that its failure to register
each of its two antenna structures in violation of
Section 17.4(a) of the Rules stemmed from a ``single
mistake of fact'' by its chief engineer. According to
WSJM, its chief engineer mistakenly believed that the
structures were less than 200 feet in height, and
therefore, were below the threshold required to
register the structures as obstructions. WSJM further
argues that because the two structures are located at
the same site and are part of a directional array, the
Detroit Office should have levied a fine for only one
antenna structure registration violation. It is well-
established that WSJM, as a licensee, is accountable
for its chief engineer's errors and ultimately, is
responsible for compliance with the Commission's
requirements.13 Nevertheless, we agree that, because
the two antenna structures are located at the same
site, it is appropriate to deal with WSJM's error as a
single registration violation. Accordingly, we reduce
the total forfeiture amount by three thousand dollars
10. WSJM also argues that at the time of the Detroit
Office's inspection, it was only monitoring one EAS
source (instead of the requisite two sources) because
an antenna for one of its EAS monitors had become
dislodged without its knowledge. According to WSJM,
the proposed forfeiture for violation of Section
11.52(d) of the Rules should be reduced because WSJM
was unaware of the problem with the antenna, and
reinstalled it immediately upon discovery of the
violation. We disagree. As noted above, WSJM, as a
licensee, is responsible for ensuring compliance with
the Commission's Rules,14 including the requirement
that the station monitor two EAS sources. Further,
WSJM should have been receiving and logging EAS tests
from both EAS sources and thus, should have been aware
that it was not receiving the second source. That WSJM
may have overlooked a dislodged antenna does not
mitigate or excuse WSJM's violations, and thus we do
not find that reduction of the proposed forfeiture
amount is warranted on this basis.
11. Finally, WSJM contends that the proposed forfeiture
should be reduced in light of its overall history of
compliance with the Commission's Rules. After
considering WSJM's record of compliance, we conclude
that although WSJM willfully15 violated the
Commission's Rules, a reduction of the remaining
forfeiture amount (sixteen thousand dollars ($16,000)
as reduced) to twelve thousand eight hundred dollars
($12,800) is appropriate.16
II. ORDERING CLAUSES
12. 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,17 WSJM, Inc.. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of twelve thousand
eight hundred dollars ($12,800) for willfully violating
Sections 11.52(d), 11.61(a)(2)(i)(A), 17.4(a),
17.47(a)(1), 17.51(a), 73.1820(a)(1)(i),
73.1820(a)(1)(iii), and 73.1870(c)(3) of the
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.18 Payment of
the forfeiture may be made by check or similar
instrument, payable to the order of the Federal
Communications Commission. The payment must include
the NAL/Acct. No. and FCC Registration Number (``FRN'')
referenced above. Payment by check or money order may
be mailed to Forfeiture Collection Section, Finance
Branch, 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,'' account
number 1165259. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington,
14. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested and
by First Class Mail to Mr. Gayle Olson,
President/General Manager, WSJM, Inc., P.O. Box 107,
St. Joseph, MI, 49085, and to WSJM, Inc.'s attorneys,
David D. Oxenford, Esquire, and Paul A. Cicelski,
Esquire, of Shaw Pittman LLP, 2300 N Street, N.W.,
Washington, D.C. 20037-1128.
David H. Solomon
Chief, Enforcement Bureau
147 C.F.R. §§ 1820(a)(1)(i ), 73.1820(a)(1)(iii) and
247 C.F.R. §§ 11.52(d), 11.61(a)(2)(i)(A) and 17.47(a)(1).
347 C.F.R. § 17.4(a).
447 C.F.R. § 17.51(a).
5 Section 312(f)(1) of the Act, 47 U.S.C. 312(f)(1), which
applies to 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, 4388
6As 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).
7See Notice of Apparent Liability for Forfeiture, NAL/Acct.
200332360005 (Enf. Bur., Detroit Office, released April 17,
8 47 U.S.C. § 503(b).
947 C.F.R. § 1.80.
1047 U.S.C. § 503(b)(2)(D).
11Based on the record, WSJM was first notified of the light
outages because an agent from the Commission's Detroit
Office contacted the Federal Aviation Administration, which
in turn notified WSJM of the outage report and issued a
NOTAM. See ¶ 3, supra.
12See, 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).
13See, e.g., Odino Joseph, 18 FCC Rcd 16522, 16524 ¶ 8
(Enf. Bur. 2003); South Central Communications Corp., 18
FCC Rcd 700, 702-03 ¶ 9 (Enf. Bur. 2003).
14See note 13, supra.
15 While the NAL also concluded that WSJM's violations were
``repeated,'' we need not address that finding in light of
the willful nature of WSJM's admitted violations. See,
e.g., Southern Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991)
(in issuing a forfeiture pursuant to 47 U.S.C. § 503(b) of
the Act, we are only required to find either a ``willful''
or ``repeated'' violation). See also note 5, supra.
16See Max Media of Montana, 18 FCC Rcd 21375, 21378 (Enf.
Bur. 2003) (finding that a licensee's history of compliance
with Commission regulations warranted a reduction of the
proposed forfeiture); see also South Central Communications
Corp., 18 FCC Rcd 700, 701, 703 ¶¶ 6, 9 (Enf. Bur. 2003).
1747 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1847 U.S.C. § 504(a).
19See 47 C.F.R. § 1.1914.