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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
ASA Broadcasting, Inc. File Number EB-07-TP-195
Licensee of Station WXYB NAL/Acct. No. 200832700013
Indian Rocks Beach, FL FRN 0000017558
Facility ID #2918
Adopted: May 13, 2008 Released: May 15, 2008
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of three thousand two hundred dollars ($3,200) to ASA
Broadcasting, Inc. ("ASA"), licensee of AM station WXYB, Indian Rocks
Beach, FL, for willful and repeated violation of Section 73.1745(a)
of the Commission's Rules ("Rules"). The noted violation involves
ASA's operation of its station after sunset in violation of its
2. On September 27, 2007, in response to a complaint, agents from the
Commission's Tampa Office of the Enforcement Bureau ("Tampa Office")
monitored station WXYB in Indian Rocks Beach, FL from approximately
5:30 PM until 9:00 PM. The agents observed that the station remained
on the air during this entire period of time. Station WXYB is
authorized only for daytime operations and local sunset on this date
was 7:23 PM.
3. On October 1, 2007, agents from the Tampa Office again monitored the
station's transmissions from approximately 5:30 PM until 9:00 PM. The
agents observed that the station remained on the air during this
entire period of time. Local sunset on this date was 7:18 PM.
4. On December 7, 2007, agents from the Tampa Office, accompanied by the
President and Chief Operator of ASA, inspected station WXYB. Although
they were able to reduce power, neither the Chief Operator nor the
President was able to take the station off the air during the
inspection. Both were unaware of this equipment malfunction or that
the station was operating after sunset. The Chief Operator was unable
to produce any station logs for the station. On December 10, 2007, the
Chief Operator contacted the Tampa Office and stated that the station
was still not going off the air at sunset but was reducing power at
5. On April 8, 2008, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture to ASA in the amount of four thousand dollars
($4,000), for the apparent willful and repeated violation of Section
73.1745(a). ASA submitted a response to the NAL requesting a reduction
of the proposed forfeiture.
6. The proposed forfeiture amounts in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934, as
amended ("Act"), Section 1.80 of the Rules, 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 ASA'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 require.
7. Section 73.1745(a) of the Rules requires that no broadcast station
shall operate at times, or with modes or power, other than those
specified and made a part of the license, unless otherwise provided in
this part. Station WXYB is only authorized to operate during the day.
On September 27 and October 1, 2007, agents from the Tampa Office
observed that station WXYB remained on the air post sunset local time.
The agents monitored station WXYB's transmissions from approximately
5:30 until 9:00 PM on both dates and observed that the station
remained on the air the entire time. On December 7, 2007, during an
inspection, ASA was unable to take station WXYB off the air. On
December 10, 2007, ASA stated it was still unable to take its station
off the air at sunset. In response to the NAL, ASA requests a
reduction or cancellation of the forfeiture, because its violation was
attributable to faulty equipment. ASA claims it was unaware of the
malfunction prior to the inspection on December 7, 2007, and that it
has since repaired the transmitter and transmitter remote controller.
We find, however, that ASA's arguments provide no reason to reduce or
cancel the forfeiture. ASA does not deny that its violation was
repeated, and we could have issued the forfeiture based solely on its
repeated violation of the rules. Moreover, corrective action taken to
come into compliance with the Rules is expected, and does not nullify
or mitigate any prior forfeitures or violations. Thus, based on the
evidence before us, we find that ASA willfully and repeatedly violated
Section 73.1745(a) of the Rules by operating post sunset in violation
of its station authorization.
8. ASA also requests a reduction of the forfeiture based on its history
of compliance with the rules. We have reviewed the record and agree.
Therefore, we reduce the forfeiture to $3,200 based on ASA's history
of compliance with the rules.
9. We have examined ASA's response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that a reduction of
the proposed forfeiture to $3,200 is warranted, based on ASA's history
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, ASA Broadcasting, Inc. IS LIABLE
FOR A MONETARY FORFEITURE in the amount of three thousand two hundred
dollars ($3,200) for violation of Section 73.1745(a) of the Rules.
11. 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. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment[s] by wire transfer may
be made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to ASA Broadcasting,
Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S: 73.1745(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832700013
(Enf. Bur., Tampa Office, April 8, 2008) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 73.1745(a).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
Section 312(f)(1) of the Act, 47 U.S.C. S: 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
As provided by 47 U.S.C. S: 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).
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4),
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1143
Federal Communications Commission DA 08-1143