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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
First Baptist Church, Inc. File Number: EB-06-TP-171
Licensee of Station WAKJ NAL/Acct. No.: 200832700003
DeFuniak Springs, FL FRN: 00074611536
Facility ID # 68290
Adopted: January 28, 2008 Released: January 30, 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 two thousand dollars ($2,000) to First Baptist Church,
Inc. ("First Baptist"), licensee of non-commercial FM station WAKJ,
DeFuniak Springs, FL, for willful and repeated violation of Sections
11.35(a) and 73.1125(a) of the Commission's Rules ("Rules"). The
noted violations involve First Baptist's failure to install the
required Emergency Alert System ("EAS") equipment and failure to
maintain full-time managerial and staff personnel at the main studio
during normal business hours.
2. On August 9, 2006, agents from the Commission's Tampa Office of the
Enforcement Bureau ("Tampa Office") were unable to inspect station
WAKJ's main studio in DeFuniak Springs, Florida during normal business
hours, because it was unattended. The agents telephoned First Baptist
and were told that the station's General Manager, the only person with
a key to the station's transmitter location, was away for the week.
First Baptist arranged for a janitor to let the agents into the main
studio. A few days later, agents informed the General Manager that
main studios must be staffed full-time by managerial and staff
personnel during normal business hours.
3. On April 3, 2007, an agent from the Commission's Atlanta Office of the
Enforcement Bureau attempted to inspect the station's main studio
during normal business hours and found it unattended. The agent
telephoned First Baptist, and someone was sent over who provided the
agent access to the station's public inspection file and offered to
provide access to the main studio.
4. On May 15, 2007, agents from the Tampa Office inspected the main
studio of station and found that the station had no EAS equipment
installed. The General Manager stated that he was unaware that
non-commercial FM stations were required to have installed EAS
equipment. The station did have an uninstalled EAS encoder/decoder in
a box at the main studio. The General Manager, who is also the Chief
Operator, stated that he is usually the only person from the station
present at the main studio between the hours of 8 A.M. and 5 P.M.
5. On November 28, 2007, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture to First Baptist in the amount of fifteen
thousand dollars ($15,000) for the apparent willful and repeated
violation of Sections 11.35(a) and 73.1125(a) of the Rules. First
Baptist submitted a response to the NAL requesting a reduction or
cancellation of the proposed forfeiture.
6. The proposed forfeiture amount 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 First Baptist'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 11.35(a) of the Rules requires Broadcast stations to be
responsible for ensuring that ... EAS Encoders and EAS Decoders ...
used as part of the EAS are installed so that the monitoring and
transmitting functions are available during the times the stations are
in operation. Section 11.11(a) of the Rules states that as of January
1, 1997, FM stations are required to have an EAS encoder and decoder.
During the May 15, 2007 inspection of the station, station WAKJ was in
operation, and no EAS equipment was installed at the station. The
General Manager stated that he didn't know that non-commercial FM
stations were required to have installed EAS equipment. However, he
was aware that an uninstalled EAS encoder/decoder was sitting in a box
in the main studio. Thus, based on the evidence before us, we find
that First Baptist willfully and repeatedly violated Section 11.35(a)
of the Rules by failing to install the required EAS equipment.
8. In response to the NAL, First Baptist admits that the station did not
have installed EAS equipment at the station on May 15, 2007. It states
that when the station moved to its new main studio, it forgot to
reinstall the EAS equipment and that the equipment remained in the box
where it was discovered by the Commission agents. First Baptist states
that the EAS equipment was reinstalled in June 2007 and that its first
report was run on June 5, 2007. First Baptist presents no arguments
that would warrant reduction or cancellation of the forfeiture,
because it took no action to comply with the EAS Rules prior to the
agents' inspection. Corrective action taken to come into compliance
with the Rules after an inspection is expected, and does not nullify
or mitigate any prior forfeitures or violations.
9. Section 73.1125(a) of the Rules requires FM stations to maintain a
main studio. "A station must equip the main studio with production and
transmission facilities that meet applicable standards, maintain
continuous program transmission capability, and maintain a meaningful
management and staff presence." The Commission has defined a minimally
acceptable "meaningful presence" as full-time managerial and full-time
staff personnel. Although management personnel are not required to be
"chained to their desks" during normal business hours, the main studio
must remain "attended [by staff] during normal business hours." On
August 9, 2006, agents were unable to inspect the main studio of
station WAKJ, because it was unattended. The General Manager was
informed of the main studio staffing requirements in August 2006. On
April 3, 2007, an agent attempted to inspect the main studio during
normal business hours, but found it unattended. A station
representative arrived at the main studio a few minutes after the
agent contacted the station. On May 15, 2007, the station's General
Manager stated that he is typically the only station representative at
the main studio during normal business hours. Thus, based on the
evidence before us, we find that First Baptist willfully and
repeatedly violated Section 73.1125(a) of the Rules by failing to
maintain full-time managerial and staff personnel at its main studio.
10. In its response to the NAL, First Baptist states that it thought it
was required to only have one person present at the main studio. While
it admits that agents were unable to inspect the main studio on August
9, 2006, it states the agent could have inspected the main studio on
April 3, 2007 after the station representative arrived. It requests a
reduction or cancellation of the forfeiture because inspection was
only thwarted on one day, as opposed to two days as cited in the NAL.
11. We find no basis upon which to cancel or reduce the forfeiture. On
August 9, 2006 and April 3, 2007, the main studio for station WAKJ was
unattended during normal business hours. Although, on April 3, 2007, a
station representative arrived after being contacted, First Baptist
was not in compliance with the Rules, because it did not maintain
full-time managerial and staff personnel at the main studio. Main
studios are required to be attended during normal business hours, and
such was not the case on the two days in question. The fact that the
agent could have inspected the main studio on April 3, 2007 does not
negate the fact that the main studio was not adequately attended.
Moreover, in its response to the NAL, First Baptist admits that, on
most days, no more than one employee, the General Manager, was present
at the main studio. It is also irrelevant that First Baptist was
unaware that its interpretation of the main studio staffing
requirements was incorrect.
12. Finally, First Baptist requests a reduction of the forfeiture based on
its history of compliance with the Rules and its inability to pay the
forfeiture. The Commission has determined that, in general, an
entity's gross revenues are the best indicator of its ability to pay a
forfeiture. After reviewing First Baptist's financial documents and
its history with the Commission, we reduce the forfeiture to $2,000,
based on its demonstrated inability to pay the forfeiture and its
history of compliance with the Rules.
13. We have examined First Baptist'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 First Baptist
willfully and repeatedly violated Sections 11.35(a) and 73.1125(a) of
the Rules. However, we reduce the forfeiture for these violations to
$2,000, based on First Baptist's inability to pay and history of
compliance with the Rules.
IV. ORDERING CLAUSES
14. 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, First Baptist Church, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of two thousand dollars
($2,000) for violation of Sections 11.35 and 73.1125 of the Rules.
15. 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/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, S.W., Room 1A625, Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to First Baptist
Church, Inc. at its address of record and to its counsel, Lee G.
Petro, Fletcher, Heald & Hildreth, PLC, 1300 North 17th St., 11th
Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S:S: 11.35(a), 73.1125(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832700003
(Enf. Bur., Tampa Office, November 28, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(D).
47 C.F.R. S: 11.35(a).
47 C.F.R. S: 11.11(a). Class D non-commercial educational FM stations are
required to have EAS decoders installed and operational. See 47 C.F.R.
S:S: 11.11(a), 11.11(b). Station WAKJ, however, is a Class A
non-commercial FM station.
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,' ... 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).
During the inspection, the General Manager stated he did not know that
non-commercial stations were required to install EAS equipment, and,
therefore, had not attempted to install the EAS equipment. First Baptist
states in its response to the NAL that it forgot to install the EAS
equipment, implying that it knew it was required to maintain EAS
equipment. In either case, it is undisputed that First Baptist took no
action regarding the EAS equipment, prior to the agents' inspection.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
Main Studio and Program Origination Rules, Memorandum Opinion and Order,
3 FCC Rcd 5024, 5026 (1988).
Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order, 6
FCC Rcd 3615, 3616 (1991), clarified 7 FCC Rcd 6800 (1992).
See id. at 7 FCC Rcd at 6802.
The NAL stated that the agent was unable to inspect the main studio,
because it was unattended. It omitted the fact that someone arrived later
to show the agent the public inspection file.
See supra note 8.
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 11.35,
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 08-176
Federal Communications Commission DA 08-176