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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Star Power Communications Corporation EB-07-AT-177
Licensee of Radio Station WIQR(AM) NAL No.: 200732480013
Prattville, AL FRN: 0009886755
Facility ID: 8544
Adopted: November 5, 2008 Released: November 7, 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 one thousand five hundred dollars ($1,500) to Star Power
Communications Corporation ("Star Power"), licensee of station
WIQR(AM), in Prattville, Alabama, for willful and repeated violation
of Sections 11.35(a) and 73.3526 of the Commission's Rules ("Rules").
The noted violations involve Star Power's failure to maintain
operational Emergency Alert System ("EAS") equipment, and failure to
maintain and make available a complete public inspection file. We also
admonish Star Power for its repeated violation of Section 73.1350(a)
of the Rules.
2. On August 30, 2007, agents of the Commission's Atlanta Office of the
Enforcement Bureau ("Atlanta Office") conducted an inspection of the
AM directional station, WIQR, in Prattville, Alabama during normal
business hours with the station's general manager. The agents found
that the station's EAS encoder/decoder unit was not operational,
because it was unplugged from a power source. The station's general
manager stated that he was unaware that the EAS unit was unplugged and
stated that the station's engineer must have unplugged it when the
engineer was last there. When plugged back in, no one at the station
was able to send an EAS test from the unit. The agents were unable to
retrieve any electronically stored data from the unit. The station
also had no EAS logs, and the last EAS printout was an alert from the
National Weather Service dated May 2, 2007.
3. During the inspection, the agents requested to inspect the station's
public inspection file. The station provided a public inspection file
that did not contain any quarterly issues programs lists for any
quarter. The general manager and office manager stated that they were
unaware of this requirement and admitted that the station had not been
compiling quarterly issues programs lists.
4. Finally, the agents observed one of the walls of the plastic fence
surrounding one of the station's towers lying on the ground, allowing
ready access to the base of the tower. The agents observed that tall
grass had grown up through the downed portion of the fence. The
general manager stated that he was going to replace the plastic fence
with a wooden fence but that he hadn't had chance to do it.
5. On October 19, 2007, the station's engineer contacted an agent from
the Atlanta Office and provided additional information. He stated that
he had not visited the station in several months. He also stated that
the plastic fence around the tower was installed in 2004 or 2005.
6. On November 5, 2007, the Atlanta Office issued a Notice of Apparent
Liability for Forfeiture to Star Power in the amount of nineteen
thousand dollars ($19,000) for the apparent willful and repeated
violation of Sections 11.35(a), 73.3526(a) and 73.49 of the Rules.
Star Power submitted a response to the NAL requesting a reduction or
cancellation of the proposed forfeiture.
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'), 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 Star Power'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.
8. Section 11.35(a) of the Rules states that "EAS participants are
responsible for ensuring that EAS Encoders, EAS Decoders and Attention
Signal generating and receiving equipment used as part of the EAS are
installed so that the monitoring transmitting functions are available
during the times the stations and systems are in operation." On August
30, 2007, station WIQR's EAS encoder/decoder was not operational,
because it was unplugged from the power source. The station's general
manager stated that the station's engineer must have unplugged it. The
engineer later stated that he had not visited the station in several
months. Once plugged in, no one at the station could demonstrate that
the unit was operational, and there was no evidence that an EAS test
had been received or sent since May 2, 2007. In response to the NAL,
Star Power states that it has corrected its failure to maintain
operational EAS. However, 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. Thus,
based on the evidence before us, we find that Star Power willfully and
repeatedly violated Section 11.35(a) of the Rules by failing to
maintain operational EAS equipment.
9. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection, a file containing materials listed in
that section. Section 73.3526(c)(1) of the Rules states that the file
shall be available for public inspection at any time during regular
business hours. Section 73.3526(e)(12) of the Rules requires licensees
to place in the public inspection file, for each calendar quarter, a
list of programs that have provided the station's most significant
treatment of community issues during the preceding three month period.
This list is known as the radio issues/programs list. On August 30,
2007, in response to a request to inspect the station's public
inspection file during normal business hours, the station was unable
to make available any quarterly issues/programs lists. The station's
general manager and office manager stated that they did not know the
lists were required and admitted that they had not compiled the lists.
In response to the NAL, Star Power states that it corrected its
failure to maintain quarterly issues/programs lists, but, as stated
above, corrective action is expected and does not warrant reduction or
cancellation of a forfeiture. Thus, based on the evidence before us,
we find that Star Power willfully and repeatedly violated Section
73.3526 by failing to maintain a complete public inspection file and
willfully violated Section 73.3526 by failing to make available a
complete public inspection file.
10. Section 73.49 of the Rules states that "Antenna towers having radio
frequency potential at the base...must be enclosed within effective
locked fences or other enclosures." It is undisputed that on August
30, 2007, one side of the plastic fencing around one of the station's
towers was lying on the ground, allowing ready access to the base of
the tower and that the fence had been down for more than one day. It
is also undisputed that the terms of station WIQR's station
authorization require it to operate with a directional pattern and the
use of all of its antennas, which would have caused the tower in
question to have had radio frequency potential at its base. Thus, if
station WIQR had been operating as authorized, all of its antennas
would have required base fences. In its response to the NAL, Star
Power states that it corrected its fencing violation and erected a new
fence around the tower in question. It also claims for the first time
that the tower in question didn't have "current going to it since we
were broadcasting omni-directional from the middle tower" and that's
why they didn't think "time was of the essence" when replacing the
plastic fencing. Star Power's general manager later submitted a
statement, under penalty of perjury, that the station had been
broadcasting in a non-directional mode from approximately July 4, 2007
until a few months ago. Because Star Power asserts that the station
operated in an omni-directional mode from on or about July 4, 2007
until a few months before July 2008, the tower in question did not
have radiofrequency potential during the inspection and we have no
direct evidence to the contrary for the date of the inspection or for
the prior dates in which the section of the fence was missing, we
cancel the proposed forfeiture associated with the apparent violation
of Section 73.49 of the Rules. However, because Star Power admits that
it repeatedly operated its station in an omni-directional mode when it
was required to operate in a directional mode, we admonish it for its
repeated violation of Section 73.1350(a) of the Rules, which requires
each licensee to maintain and operate its broadcast station "in
accordance with the terms of the station authorization."
11. Finally, Star Power requests a reduction of the forfeiture based on
its history of compliance with the Rules. We have reviewed the
Commission's records and agree that Star Power has not been the
subject of a prior enforcement action. Star Power also asserts that
the proposed forfeiture would pose a financial hardship. The
Commission has determined that, in general, an entity's gross revenues
are the best indicator of its ability to pay a forfeiture. We have
reviewed the financial documentation provided by Star Power and reduce
the forfeiture to $1,500 based on its history of compliance with the
Rules and its documented inability to pay.
12. We have examined Star Power'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 Star Power
willfully and repeatedly violated Sections 11.35(a) and 73.3526 of the
Rules. However, we reduce the forfeiture for these violations to
$1,500 based on Star Power's history of compliance with the Rules and
documented inability to pay.
IV. ORDERING CLAUSES
13. 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, Star Power Communications
Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of one
thousand five hundred dollars ($1,500) for violation of Sections 11.35
and 73.3526 of the Rules.
14. IT IS FURTHER ORDERED that, the forfeiture in the amount of seven
thousand dollars ($7,000) for violation of Section 73.49 of the Rules
proposed in the November 5, 2007 Notice of Apparent Liability issued
to Star Power Communications Corporation IS CANCELED.
15. IT IS FURTHER ORDERED that, Star Power Communications Corporation IS
ADMONISHED for its repeated violation of Section 73.1350(a) of the
16. 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 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.
Star Power will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Star Power
Communications Corporation at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S:S: 11.35(a), 73.3526.
47 C.F.R. S: 73.1350(a).
47 C.F.R. S: 73.49.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732480013
(Enf. Bur., Atlanta Office, November 5, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
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,' ... 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 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(c)(1).
47 C.F.R. S: 73.3526(e)(12).
Star Power's general manager stated that the station's former chief
engineer told him that he had submitted a request for Special Temporary
Authority to operate at variance with the station authorization on July 4,
2007. The general manager provided a copy of the signed request. The
general manager also claims that, unbeknownst to him, the former chief
engineer intentionally failed to submit the request in an attempt to
sabotage the station. The Commission's Media Bureau does not have a record
of an STA being filed prior to the date of the inspection.
47 C.F.R. S: 73.1350(a).
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).
Federal Communications Commission DA 08-2461
Federal Communications Commission DA 08-2461