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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-CF-334
JMK Communications, Inc. ) NAL/Acct. No. 200432340004
Licensee of Station WPWC(AM) ) FRN 0006-1615-09
MEMORANDUM OPINION AND ORDER
Adopted: February 9, 2006 Released:
February 14, 2006
By the Chief, Enforcement Bureau:
1. By this Memorandum Opinion and Order (``Order''), we
grant in part and deny in part the petition for reconsideration,
filed on January 26, 2005 by JMK Communications, Inc.
(``JMK''),1 licensee of AM Radio Station WPWC, Dumfries,
Virginia, of the Enforcement Bureau's (``Bureau'') Forfeiture
Order, released December 27, 2004.2 The Forfeiture Order
imposed a forfeiture of fourteen thousand dollars ($14,000) upon
JMK for its willful and repeated violation of Sections
73.1745(a), 73.3526(e)(5), and 73.3526(e)(12) of the
Commission's Rules (``Rules'')3 by operating station WPWC at
unauthorized power levels and failing to place the most current
ownership report and an issues/programs list in WPWC's public
2. On July 2, 2003, an agent from the Commission's
Columbia, Maryland Field Office (``Columbia Office'') conducted
an inspection of station WPWC. The agent found that WPWC's
Emergency Alert System (``EAS'') equipment was installed at the
station's unattended transmitter, and noted that its monitoring
and transmitting functions were not available to the station's
operators. The agent also found that, according to the
station's logs, WPWC operated with its daytime power and antenna
during nighttime hours. WPWC's authorized daytime power was
1080 watts while its authorized nighttime power was 540 watts.
The station's logs indicated that WPWC changed to its nighttime
power level and antenna at 8:30 p.m. instead of the authorized
8:15 p.m. on May 4, 2003 and from May 8 through May 19, 2003.
The agent also discovered that JMK's public inspection file
included neither station WPWC's most recent ownership report nor
a current and complete issues/programs list. On August 7, 2003,
the Columbia Office sent a Letter of Inquiry (``LOI'') to JMK to
clarify issues raised by the inspection concerning, inter alia,
station logs, transmitter operating power and the public
inspection file. JMK responded to the LOI on August 22, 2003.
3. After considering JMK's response to the LOI, the
Columbia Office issued a Notice of Apparent Liability for
Forfeiture (``NAL'')4 to JMK in the amount of $22,000 for: (1)
failing to ensure that WPWC's EAS monitoring and transmitting
functions were available and operational during the times the
station was in operation, in apparent willful and repeated
violation of Section 11.35(a) of the Rules;5 (2) operating at
unauthorized power levels, in apparent willful and repeated
violation of Section 73.1745(a) of the Rules; (3) failing to
place into the public inspection file the most current ownership
report, in apparent willful and repeated violation of Section
73.3526(e)(5) of the Rules; and (4) failing to place into the
public inspection file a complete issues/programs list in
apparent willful and repeated violation of Section
73.3526(e)(12) of the Rules.
4. On April 5, 2004, JMK responded to the NAL. In its
response, which included a declaration made under penalty of
perjury by the station's chief engineer, Alfred Hammond, JMK
sought cancellation or reduction of the forfeiture. After
considering JMK's response to the NAL, including Mr. Hammond's
declaration, the Bureau issued the underlying Forfeiture Order
on December 27, 2004, in which it cancelled the forfeiture
amount attributable to the EAS violation, thereby reducing the
forfeiture amount to fourteen thousand dollars ($14,000), but
found the remaining violations to be willful and repeated. On
January 26, 2005, JMK filed a petition for reconsideration of
the Forfeiture Order. In its petition for reconsideration, JMK
does not dispute the background facts of the case. With respect
to the remaining violations, however, JMK does dispute the
Bureau's interpretation of a pertinent question asked by the
Columbia Office in the LOI and JMK's response thereto, as well
as the Bureau's handling of Mr. Hammond's declaration.
5. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934
as amended (``Act''), 6 Section 1.80 of the Rules,7 and The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.8 In examining JMK's petition for reconsideration,
Section 503(b) of the Act requires that we 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 any such other
matters as justice may require.9
III.A. Operating at Unauthorized Power Level Violation
6. Background. Section 73.1745(a) of the Rules states
that no broadcast station shall operate with power other than
that specified and made a part of the license unless otherwise
provided in Part 73 of the Rules. JMK has been assessed a
forfeiture for its overpower operation of Station WPWC based on
the response it gave to an LOI question asked by the Columbia
Office. The Bureau has imposed forfeitures for violation of this
rule as a licensee is expected to operate in a manner consistent
with its license.10
7. At the time of the inspection, the investigating agent
reviewed WPWC's station logs. As a result of the agent's review
of the logs, the Columbia Office sent an LOI to JMK, the
licensee. The LOI set forth the agent's observations regarding
the station logs, which noted unvarying operating parameters, and
inquired as to the accuracy of the logs as they related to the
station's operation. In its response to the LOI, JMK claimed
that the logs accurately reflected the station's operation.
After considering JMK's response to the LOI and the agent's
contemporaneous observation of the station logs, the District
Director of the Columbia Office considered the station logs to be
accurate. In making the determination that WPWC's station logs
were accurate, the District Director was also determining that
each log page that indicated that Station WPWC changed from
daytime to nighttime power after the authorized 8:15 p.m.,
represented an overpower violation. Thus, the District Director
issued an NAL which included a proposed forfeiture amount of four
thousand dollars ($4,000) for JMK's operation of station WPWC at
excessive power levels on May 4, 2003 and from May 8 to May 19,
2003, as was indicated by the station logs.
8. On April 5, 2004, JMK filed a response to the NAL,
which included a declaration by Mr. Hammond. In his
declaration, Mr. Hammond stated that the changeover to nighttime
power and antenna is controlled by a reliable computer and is not
linked to manual logging. Thus, Mr. Hammond claimed that,
notwithstanding an inadvertent error in preparing the logs, the
nighttime power limits were not exceeded. The Bureau, finding
that JMK first stated that the station logs were accurate and
then submitted a sworn declaration that the station logs were not
accurate, concluded it appropriate to rely on the investigating
agent's contemporaneous observations of the station log that
indicated the station did not switch to nighttime power at 8:15
as required and imposed a forfeiture for WPWC's overpowered
operation in the Forfeiture Order.
9. Discussion. In its January 26, 2005 petition for
reconsideration of the Forfeiture Order, JMK asserts that the
Bureau misinterpreted its response to the LOI question at issue.
JMK asserts that it did not represent that its logs were fully
accurate. JMK further asserts that the LOI question asked, and
its answer, referred only to transmitter operating parameters,
tower lights and EAS. JMK also states that the LOI never asked
and JMK never addressed the question of whether the station log
accurately reflected the times of its daytime and nighttime
operation. We disagree. The LOI question noted that WPWC's
transmitter operating parameters were the same day after day.
Transmitter operating parameters include the power levels at
which the station is operating. Thus, we believe that the
operating parameters referred to in the LOI included operating
power. However, the issue here is whether WPWC's station logs
were accurate as regards WPWC's changeover times between day and
10. We believe JMK initially indicated that WPWC's station
logs were correct with regards to the times the station changed
power. However, JMK has submitted a sworn statement from Mr.
Alfred Hammond, WPWC's chief engineer, in which he stated that he
is ``sure the log was in error'' and that it did not reflect
improper operation of the station. Although we believe JMK made
two conflicting statements regarding the accuracy of the station
logs, we also recognize that we have no extrinsic evidence to
definitively establish that JMK failed to change WPWC from day to
night-time power at the required time on the days in question.
For this reason, and given Mr. Hammond's sworn declaration, we
cancel the portion of the forfeiture that had been attributed to
the overpower violation.
11. Section 73.1800 provides that all station entries,
whether required or not, must accurately reflect station
operation.11 JMK, through Mr. Hammond's declaration, has
acknowledged that WPWC's station logs were not accurate with
respect to its changeover times on the subject dates. We remind
JMK of its obligation, as a Commission licensee, to exercise due
diligence when answering questions in response to a Commission
inquiry. Further, we believe that an admonition is warranted for
JMK's violation of Section 73.1800 by failing to accurately
reflect WPWC's operation in its station log.12
B. Public Inspection File Violations
12. Background. The public file rules are rooted in
Section 307(b) of the Act13 and codified in Part 73 of the Rules.
Section 73.3526(b) of the Rules states that the public inspection
file must be maintained at the main studio of the station.14 The
Commission has found that reasonable access to the public
inspection file serves the important purpose of facilitating
citizen monitoring of a station's operations and public interest
performance, and fostering community involvement with local
stations, thus helping to ensure that stations are responsive to
the needs and interests of their local communities.15
13. Section 73.3526(e)(5) of the Rules requires commercial
broadcast stations to place a copy of the most recent, complete
ownership report in the public inspection file. Section
73.3526(e)(12) of the Rules requires commercial broadcast
stations to place in the public inspection file every three
months a list of programs that have provided the station's most
significant treatment of community issues during the preceding
three months. JMK admits that neither the latest ownership
report nor a complete issues/programs list was in the public
inspection file on the date WPWC was inspected. The Bureau has
imposed forfeitures for violation of these rules as a licensee is
expected to comply with the public inspection file rules.16
14. Discussion. JMK contends that the $10,000 forfeiture
assessed for its public file violations is inappropriate.
Although JMK admits the two public file violations, it argues
that the proposed forfeiture amount is excessive in comparison to
forfeiture amounts that have been assessed for more severe public
file infractions. In support, JMK cites Community Broadcasting,
Inc., a case in which a $2,500 forfeiture was imposed for a
public inspection file that lacked the most current ownership
report and a contour map (forfeiture reduced to $2,000 for other
reasons). We agree that a reduction of the forfeiture amount
assessed for JMK's public inspection file violations is
appropriate. We do not, however, agree with the amount proposed
by JMK. Consistent with Community, we find that the appropriate
amount to be assessed for JMK's violation of Section
73.3526(e)(5) of the Rules by not having the most current
ownership report in its public inspection file is $1,250.17 We
also find that the appropriate amount to be assessed for JMK's
violation of Section 73.3526(e)(12) of the Rules by not having an
adequately detailed issues/programs log in its public file is
$4,000.18 Therefore, we reduce the forfeiture amount
attributable to the public inspection file violations from
$10,000 to $5,250.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act19 and Section 1.106 of the Rules,20 the petition
for reconsideration filed by JMK Communications, Inc. of the
Enforcement Bureau's Forfeiture Order for the NAL/Acct.
referenced herein is GRANTED to the extent indicated above and
DENIED in all other respects.
16. IT IS FURTHER ORDERED that JMK Communications, Inc. is
hereby ADMONISHED for its failure to accurately reflect Station
WPWC's operation in its station log.
17. IT IS ALSO ORDERED THAT, pursuant to Section 503(b) of
the Communications Act of 1934, as amended, (``Act'') and Section
1.80(f)(4) of the Rules,21 JMK Communications, Inc. IS LIABLE FOR
A MONETARY FORFEITURE in the amount of five thousand two hundred
fifty dollars ($5,250) for willfully and repeatedly violating
Sections 73.3526(e)(5), and 73.3526(e)(12) of the Rules.
18. 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.22
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 Federal Communications Commission, P.O. Box 358340,
Pittsburgh, PA 15251-8340. Payment by overnight mail may be sent
to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to
ABA Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an installment
plan should be sent to: Associate Managing Director - Financial
Operations, 445 12th Street, SW, Room 1A625, Washington, DC
19. IT IS FURTHER ORDERED that copies of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to JMK Communications, Inc., 4525 Wilshire Boulevard,
Los Angeles, California 90010, and its counsel, Peter Gutmann,
Esq., at Womble Carlyle Sandridge & Rice, PLLC, 1401 Eye Street,
NW, 7th Floor, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
1 JMK initially filed an Application for Review on January 26,
2005. On October 24, 2005, JMK withdrew its Application for
Review and agreed to have its submission treated as a petition
for reconsideration. The document filed on January 26, 2005 will
hereinafter be referred to as a petition for reconsideration.
2 JMK Communications, Inc., 19 FCC Rcd 24808 (Enf. Bur. 2004).
3 47 C.F.R. §§ 73.1745(a), 73.3526(e)(5), and 73.3526(e)(12).
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432340004 (Enf. Bur., Columbia Office, released March 4,
5 47 C.F.R. § 11.35(a).
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303
9 47 U.S.C. § 503(b)(2)(D).
10 See M.B. Communications, Inc., 20 FCC Rcd 9536 (Enf. Bur.
2005); Jason Konarz, 19 FCC Rcd 19562 (Enf. Bur. 2004).
11 47 C.F.R. § 73.1800.
12 See WKLC, Inc., 20 FCC Rcd 13554 (Enf. Bur. 2005) (licensee
admonished for a violation for which it had not previously been
13 47 U.S.C. § 307.
14 This Rule was modified in 1998 to provide, among other things,
more flexibility regarding the location of a radio station's
public files. Licensees were required to provide ready access to
those files. Review of the Commission's Rules Regarding the Main
Studio Rule and Local Public Inspection Files of Broadcast
Television and Radio Stations, 13 FCC Rcd 15691 (1998).
15 Id. at 15700.
16 See Community Broadcasting, Inc., 19 FCC Rcd 22502 (Enf. Bur.
2004) (forfeiture imposed for missing ownership report); Capstar
TX Limited Partnership c/o Doran Bunkin, Esq., 18 FCC Rcd 20203
(MB 2003) ($4,000 forfeiture imposed for missing issues/programs
17 See Community Broadcasting, Inc., Notice of Apparent
Liability, NAL/Acct. No. 200432340004 (Enf. Bur., Columbia
Office, released March 4, 2004; upheld by Community Broadcasting,
supra (reduced for other reasons).
18 See Capstar, supra; Capstar TX Limited Partnership c/o/ Doran
Bunkin, Esq., 18 FCC Rcd 20199 (2003) ($4,000 forfeiture assessed
because station's public inspection file lacked an adequate
19 47 U.S.C. § 405.
20 47 C.F.R. § 1.106.
21 47 C.F.R. §§ 0.111, 0.311, and 1.80(f)(4).
22 47 U.S.C. § 504(a).
23 See 47 C.F.R. § 1.1914.