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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Jackson Radio, LLC File No. EB-08-OR-0235
Licensee of WJFN-AM NAL/Acct. No. 200932620004
Brandon, MS FRN 0012490520
Facility ID # 54820
Adopted: July 29, 2009 Released: July 31, 2009
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 two hundred dollars ($1,200) to Jackson
Radio, LLC ("Jackson"), licensee of station WJFN-AM, in Brandon,
Mississippi, for willful violation of Section 11.35 of the
Commission's Rules ("Rules"), and repeated violation of Section 73.49
of the Rules. The noted violations involve Jackson's failure to have
an operational Emergency Alert System ("EAS") and failure to have an
effective locked fence or other enclosures around the antenna
2. On March 10 and March 11, 2009, in response to a complaint, agents
Commission's New Orleans Office of the Enforcement Bureau ("New Orleans
Office") inspected WJFN-AM's antenna structure and found the gate on the
fence surrounding the antenna structure unlocked. On March 12, 2009, the
agents, accompanied by a station operator, inspected the main studio and
antenna structure of WJFN-AM. At the studio, agents found the EAS without
a power source and without any means to monitor its assigned inputs. The
station log that requires that each test and activation of the EAS be
logged was not available to the agents at the time of inspection. At the
antenna structure, agents again found the gate on the fence surrounding
the antenna structure unlocked.
3. On May 19, 2009, the New Orleans Office issued a Notice of Apparent
Liability for Forfeiture to Jackson in the amount of fifteen thousand
dollars ($15,000), for the apparent willful violation of Section 11.35
of the Rules and willful and repeated violation of Section 73.49 of
the Rules. Jackson submitted a response to the NAL requesting a
reduction or cancellation of the proposed forfeiture.
4. 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 Jackson'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.
5. Section 11.35 of the Rules requires that EAS participants ensure that
EAS Encoders, EAS Decoders and Attention Signal generating and
receiving equipment used as part of the EAS are installed so that the
monitoring and transmitting functions are available during the times
the stations and systems are in operation. On March 12, 2009, agents
from the New Orleans Office inspected the main studio of WJFN-AM when
the station was in operation and found the EAS without a power source
and without any means to monitor its assigned inputs. The station log
that requires that each test and activation of the EAS be logged was
not available to the agents at the time of inspection. Thus, the
station was unable to provide evidence that its EAS had ever been
6. In response to the NAL, Jackson submits a statement from the station
manager that he was aware the EAS equipment was not functioning on the
day of the inspection and had reported the malfunction to the
engineer. The station manager states that he placed a sign on the EAS
unit that it was malfunctioning and that the manufacturer had been
contacted. The station manager also states that the station's EAS logs
were located next to the EAS unit. The station manager states that he
has no idea why the logs weren't provided to the agents during the
inspection or why the sign was removed. Jackson also asserts that,
following the inspection, the EAS unit was replaced. After receipt of
Jackson's response to the NAL, agents from the New Orleans Office
requested that Jackson send in copies of a portion of its EAS logs.
Despite being provided additional time to do so, Jackson stated it was
unable to locate its logs. It surmised employees from an entity with
which the station had a local marketing agreement may have taken the
logs. Accordingly, because Jackson was unable to provide corroborating
documents, we do not rely on its statement that it had noted the
malfunction prior to the inspection and properly notated that
malfunction in its logs. Moreover, Jackson's corrective action taken
to come into compliance with the Rules after the inspection is
expected, and does not nullify or mitigate any prior forfeitures or
violations. Thus, based on the evidence before us, we find that
Jackson willfully violated Section 11.35 of the Rules by failing to
have an operational EAS installed while the station was in operation
on March 12, 2009.
7. Section 73.49 of the Rules requires that antenna structures having
radio frequency (RF) potential at the base (series fed, folded
unipole, and insulated base antennas) must be enclosed within
effective locked fences or other enclosures. On March 10, March 11,
and March 12, 2009, agents from the New Orleans Office observed the
gate on the fence surrounding WJFN-AM's antenna structure unlocked.
The antenna had RF potential at the base.
8. In response to the NAL, Jackson submits a statement from its station
manager that he checks the fence surrounding the antenna structure
several times per week to ensure that it is locked. The station
manager states that between March 10 and 12, 2009, the station's
contract engineer was repairing the transmitter due to a lightning
strike. The station manager states that he checked the fence early on
March 11 and states that it was locked prior to the inspection. The
station manager asserts the fence lock is tricky and needs to be
pushed twice to engage. Jackson states that it has since reminded its
employees and contractors of the need to ensure that the fence remains
locked at all times. Jackson's statements are consistent with the
video and notes taken during the agents' inspections on March 10, 11,
and 12. When the agents inspected the fence surrounding the antenna
structure, the lock was not locked, thus rendering the fence
ineffective. The fact that the fence may have been locked at some
point or points prior to the agents' inspections does not negate the
safety hazard that existed at the time of the inspections. Moreover,
the "Commission has long held that licensees and other Commission
regulatees are responsible for the acts and omissions of their
employees and independent contractors," and when the actions of
independent contractors or employees have resulted in violations, the
Commission has "consistently refused to excuse licensees from
forfeiture penalties where actions of employees or independent
contractors have resulted in violations." It is also well established
that a mistake resulting in a rule violation is considered a willful
violation. Jackson has not presented any evidence that these
precedents should not apply here. Thus, based on the evidence before
us, we find that Jackson repeatedly violated Section 73.49 of the
Rules by failing to have an effective locked fence or other enclosures
around the antenna structure, and we decline to cancel or reduce the
9. Finally, Jackson states that the county maintains an outer perimeter
fence around the property. If there had been a protective property
fence surrounding the perimeter of Jackson's property, there would
have been no violation of the rules. However, on March 10, 11, and 12,
2009, the agents did not observe any perimeter property fence around
the property. Accordingly, we find no grounds to reduce or cancel the
forfeiture on the basis of the alleged perimeter property fence.
10. Jackson also requests a reduction of the forfeiture, based on its
inability to pay and its history of compliance with the rules. We have
reviewed our records and Jackson's documentation and conclude that the
forfeiture should be reduced to $1,200, based on Jackson's history of
compliance with the rules and its documented inability to pay the
11. We have examined Jackson'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 reduce the proposed
forfeiture to $1,200, based on Jackson's history of compliance with
the rules and inability to pay.
IV. ORDERING CLAUSES
12. 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, Jackson Radio, LLC IS LIABLE FOR
A MONETARY FORFEITURE in the amount of one thousand two hundred
dollars ($1,200) for violations of Sections 11.35 and 73.49 of the
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. 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.
Jackson will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Jackson Radio,
LLC at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S: 11.35.
47 C.F.R. S: 73.49.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932620004
(Enf. Bur., New Orleans Office, May 19, 2009) ("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: 11.35.
See e.g., Syntax-Brillian Corporation, Forfeiture Order and Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 6323 (2008); AT&T Wireless
Services, Inc., Forfeiture Order, 17 FCC Rcd 21866 (2002); 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).
47 C.F.R. S: 73.49.
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863,-64, para. 7 (2002); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34 (1991)(holding that a company's reliance on an independent
contractor to construct a tower in compliance of FCC rules does not excuse
that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
for violations of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248 (Enf. Bur. 2004)
(holding a licensee liable for its employee's failure to conduct weekly
EAS tests and to maintain the "issues/programs" list).
American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf. Div.,
Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, 96 FCC 2d
1235, 1244 (1984).
A violation resulting from an inadvertent mistake or a failure to become
familiar with the Commission's requirements is considered a willful
violation. See North Country Repeaters, 19 FCC Rcd 22139 (Enf. Bur. 2004);
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 (1984).
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).
See 47 C.F.R. S: 73.49 ("individual tower fences need not be installed if
the towers are contained within a protective property fence").
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4), 11.35,
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-1552
Federal Communications Commission DA 09-1552