Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-OR-387
Jesse C. Ross and Ernestine A. )
Ross ) NAL/Acct. No. 200332620013
Licensee of Station WSAO(AM) )
and ) FRN: 0008-2084-15
Owner of Antenna Structure at )
N34 36' 56''
W089 56' 09''
Senatobia, Mississippi
FORFEITURE ORDER
Adopted: October 19, 2004 Released: October 22,
2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twenty-one thousand dollars
($21,000) to Jesse C. Ross and Ernestine A. Ross, (``Ross''),
the licensee of AM radio station WSAO, Senatobia, Mississippi
and owner of the antenna structure at North 34 36' 56''
latitude, West 089 56' 09'' longitude, for willful and repeated
violation of Section 17.4(a) of the Commission's Rules
(``Rules'') and willful violation of Sections 11.35(a) and
73.3526(c)(1) of the Rules.1 The noted violations involve
Ross's failure to register its antenna structure for radio
station WSAO, failure to maintain operational Emergency Alert
System (``EAS'') equipment, and failure to make available all
required public file documents during regular business hours.
2. On March 18, 2003, the Commission's New Orleans,
Louisiana District Office (``New Orleans Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to Ross
for a forfeiture in the amount of twenty-one thousand dollars
($21,000).2 Ross filed a response to the NAL on April 1, 2003.
II. BACKGROUND
3. On November 20, 2002, an agent from the New
Orleans Office inspected WSAO. At the time of the inspection,
the station's EAS equipment was not functioning because the
encoder/decoder unit was not connected to any operating
receivers that would have monitored incoming alert signals and
tests. Station personnel were unable to produce any logs of EAS
tests sent and received, or any notation that the unit had been
removed from service. In addition, the station's antenna
structure, which is 205 feet in height, had no registration
number displayed at the base of the structure. The agent found
no Commission records that the antenna structure had been
registered, and station personnel could provide no evidence of
an attempt to register the structure. The licensee later
acknowledged to the agent that it owned the antenna structure.
Finally, a box of loose papers was presented to the agent as
comprising the station's public inspection file. The box
contained only the station's contour map and licensee renewal
information.
4. On March 18, 2003, the New Orleans Office issued
the subject NAL to Ross for twenty-one thousand dollars
($21,000) for apparent willful and repeated violation of
Sections 17.4(a) of the Rules and willful violation of Sections
11.35(a) and 73.3526(c)(1) of the Rules.3 Ross responded to the
NAL stating that the registration number is on the tower
construction permit of its license, BP830324AF. Ross further
states that the public inspection file had only been misplaced
and that the licensee is now in the process of refilling and
cleaning up the files in accordance with Section 73.3526(c)(1)
of the Rules. Finally, Ross states that a new EAS
Encoder/Decoder has been ordered and will be installed, made
operational, and proper logs kept of its use.
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed 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, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Ross' 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 require.6
6. Section 11.35(a) of the Rules requires that broadcast
stations be responsible for ensuring that EAS Encoders, EAS
Decoders, and Attention Signal generating and receiving
equipment used as part of the EAS are installed such that
monitoring and transmitting functions are available during the
times that the stations are in operation. On November 20, 2002,
Ross's EAS equipment for WSAO was not operational, because the
encoder/decoder was not attached to operating receivers in order
to monitor for alerts.7 Ross does not contest the violation and
states that new EAS equipment has been ordered and that it will
install and properly use the equipment, and log EAS tests as
required in the future. The Commission has consistently found
that while commendable, ``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.''8
Accordingly, we conclude that Ross willfully9 violated Section
11.35(a) of the Rules.
7. Section 17.4(a) of the Rules states that as of
July 1, 1996, the owner of an antenna structure that requires
notice of proposed construction to the Federal Aviation
Administration (``FAA''), must also register the structure with
the Commission.10 Ross concedes that it is the owner of this
antenna structure. Ross's antenna structure requires notice to
the FAA, and thus Commission registration, because the
structure's height exceeded 200 feet. In its response, Ross
states that the registration number was on the tower
construction permit. However, this is not the case. The number
Ross provided is the file number of its construction permit. An
antenna tower is not automatically registered with the
Commission when the owner files an application for a
construction permit. Rather, the owner must file FCC Form 854
or complete the online filing process available from the
Commission's web site.11 Even if, arguendo, Ross was unaware of
the Commission's Rules regarding the correct method for
registering the antenna structure, it is well established that
mistake or inadvertence resulting in a rule violation is
considered a willful violation of the Commission's Rules.12
Because Ross' tower has been unregistered from July 1, 1996 to
the present date, we conclude that Ross has willfully and
repeatedly13 violated Section 17.4(a) of the Rules.
8. Section 73.3526(c)(1) of the Rules requires that a
station's public inspection file be available for inspection at
any time during regular business hours. During regular business
hours on November 20, 2002, papers identified by station
personnel as the station's public inspection file contained only
two of the required items: the contour map for Station WSAO and
the Ross's most recent license renewal. In its response, Ross
personally attests that its public inspection file had been
misplaced and is now being re-filed. However, as noted above,
corrective action taken to come into compliance with Commission
rules does not nullify or mitigate any prior forfeitures or
violations.14 The public inspection files were not available as
required at the time of inspection. Accordingly, we find that
Ross willfully violated Section 73.3526(c)(1) of the Rules, and
conclude that later correction of the public inspection file
status does not mitigate the proposed forfeiture.
9. Ross's response states that it plans to take the steps
necessary to comply with our EAS and public file rules.
However, as of the adoption date of this Order, it has not
provided evidence of compliance with these rules. Additionally,
as stated above, a search of the Commission's ASR database
reveals that as of the adoption date of this Order, Ross still
had not registered its antenna structure with the Commission.
Accordingly, we will require, pursuant to Section 308(b) of the
Act,15 that Ross submit a report to the Enforcement Bureau
within 30 days of the release date of this Order demonstrating
that it is in compliance with our EAS, antenna registration and
public file rules as required by Sections 11.35(a), 17.4(a) and
73.3526(c)(1) of the Rules. Ross's report must be submitted in
the form of an affidavit or declaration, under penalty of
perjury, and signed by an officer or director of the licensee.
Ross should note that its continued noncompliance could result
in additional enforcement action.
10. We have examined Ross' response to the NAL
pursuant to the statutory factors above, and in conjunction with
the Policy Statement as well. As a result of our review, we
conclude that Ross willfully violated Sections 11.35(a) and
73.3526(c)(1) of the Rules, and that it willfully and repeatedly
violated Section 17.4 of the Rules, and we find no grounds to
reduce or cancel the forfeiture amount proposed in the NAL.
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,16 Jesse C. Ross and Ernestine A. Ross,
licensee of Station WSAO(AM), in Senatobia, Mississippi, IS
LIABLE FOR A MONETARY FORFEITURE in the amount of twenty-one
thousand dollars ($21,000) for its willful and repeated
violation of Sections 17.4 of the Rules, and willful violation
of Sections 73.3526(c)(1), and 11.35(a) of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section
308(b) of the Act, Jesse C. Ross and Ernestine A. Ross must
submit the report described in paragraph nine (9) above no later
than thirty (30) days from the release date of this Order to:
Federal Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554, Attention: Susan Magnotti, Esquire.
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.17 Payment of the forfeiture must 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 FRN No. 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, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259. 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. 20554.18
14. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Jesse C. Ross and Ernestine A. Ross, Northwest
Mississippi Broadcasting Company, P.O. Box 190, Senatobia,
Mississippi 38668.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 17.4(a), 11.35(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332620013 (Enf. Bur., New Orleans Office, released March 18,
2003).
3 47 C.F.R. § 73.3526(c)(1).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 Moreover, there were no entries in the station's log to
indicate any problem or malfunction of the EAS equipment, as
required by 47 C.F.R. § 11.35(b).
8 Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994); AT&T Wireless
Services, Inc., 17 FCC Rcd 21866, 21871 (2002).
9 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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
10 47 C.F.R. § 17.7(a).
11 .
12 Southern California Broadcasting Company, 6 FCC Rcd. 4387
(1991)(citing Vernon Broadcasting, Inc., 60 RR2d 1275, 1277
(1986); Fay Neel Eggleston, 19 FCC2d 829 (1969)). See also PBJ
Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard
Communications Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting
Co., Inc., 96 FCC 2d 1235, 1242 (1984).
13 As provided by 47 U.S.C. § 312(f)(2), ``[t]he term `repeated',
when used with reference to the commission or omission of any
act, means the commission or omission of such act more than once
or, if such commission or omission is continuous, 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). Southern California Broadcasting Co., supra.
14 See note 8, infra.
15 47 U.S.C. § 308(b).
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 U.S.C. § 504(a).
18 See 47 C.F.R. § 1.1914.