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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Rodgson, Inc. )
File No. EB-09-AT-0038
Licensee of Radio Station )
NAL/Acct. No. 201032480002
WSDQ (AM) )
Dunlap, TN )
Facility ID #67280 )
Adopted: October 25, 2010 Released: October 27, 2010
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of five thousand five hundred dollars ($5,500) to Rodgson,
Inc. ("Rodgson"), licensee of station WSDQ(AM), in Dunlap, Tennessee,
for willful and repeated violation of Sections 11.35, 73.49 and
73.3526 of the Commission's Rules ("Rules"). The noted violations
involve Rodgson's failure to: (1) maintain operational Emergency Alert
System ("EAS") equipment; (2) enclose the base of its AM antenna
structure within a locked fence; and (3) maintain and make available a
public inspection file at its main studio.
2. On August 19, 2009, agents from the Enforcement Bureau's Atlanta
Office ("Atlanta Office"), accompanied by the station's general
manager and other station staff, inspected the main studio of radio
station WSDQ(AM). The agents found that the station's installed EAS
receivers were not receiving audio from any monitoring assignment.
Neither the station staff nor the general manager knew how to send an
EAS test, and there were no EAS logs to confirm recent EAS
functionality. The general manager and station staff admitted that the
EAS equipment had not worked for at least a year.
3. The agents asked to inspect the station's public inspection file and
were told by the station staff and general manager that there was no
public inspection file and that the station never had one. Furthermore,
the station personnel were not familiar with the public inspection file
requirements, and no one could produce any of the documents required to be
in the public inspection file.
3. The agents, accompanied by the general manager, also inspected the
station's antenna tower fence. The general manager admitted that he
had not visited the tower site in a long time. The agents observed
that the station's antenna tower was energized during operating hours
and therefore had radiofrequency potential at its base. The agents
observed that the lower planks of the wooden fencing surrounding the
tower were missing and thus provided access to the base of the antenna
structure. The agents also found that the gate for the fence was
removed from its hinges and was propped up against the gate opening.
There was no evidence of a working locking mechanism, except for a
rusted metal linked chain that was wrapped around one end of the
wooden gate and hung from a nail on the support post. Moreover, the
agents did not observe any perimeter property fence.
4. On January 11, 2010, the Atlanta Office issued a Notice of Apparent
Liability for Forfeiture to Rodgson in the amount of twenty-five
thousand dollars ($25,000), for the apparent willful and repeated
violation of Sections 11.35, 73.49 and 73.3526 of the Rules. Rodgson
submitted a response to the NAL requesting reduction or cancellation
of the proposed forfeiture based on its inability to pay. Rodgson's
response does not dispute the violations identified in the NAL.
5. 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. In examining Rodgson'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. As discussed below, we conclude that the forfeiture should be
reduced to $5,500 based on Rodgson's documented inability to pay the
6. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source unless the station
affirmatively requests authority to refrain from participation, and
that request is approved by the Commission. The EAS enables the
President and state and local governments to provide immediate and
emergency communications and information to the general public. State
and local area plans identify local primary sources responsible for
coordinating carriage of common emergency messages from sources such
as the National Weather Service or local emergency management
officials. Required monthly and weekly tests originate from EAS Local
or State Primary sources and must be retransmitted by the
participating station. As the nation's emergency warning system, the
Emergency Alert System is critical to public safety, and we recognize
the vital role that broadcasters play in ensuring its success. The
Commission takes seriously any violations of the Rules implementing
the EAS and expects full compliance from its licensees.
7. Section 11.35 of the Rules requires all broadcast stations to ensure
EAS encoders, decoders and attention signal generating and receiving
equipment are installed and operational so that monitoring and
transmitting functions are available during the times the stations are in
operation. On August 19, 2009, agents from the Atlanta Office observed
that the station's EAS equipment was not installed such that its transmit
and receive functions were fully operational. The only evidence of
functional EAS equipment at the station was an old EAS log from 1997;
there was no other evidence to demonstrate any EAS activity at the station
after 1997. Moreover, station personnel were not familiar with EAS
operations or how to send an EAS test. The station's general manager also
admitted at the time of the inspection that the EAS equipment had not
worked for at least a year. Based on the evidence before us, we find that
Rodgson willfully and repeatedly violated Section 11.35(a) of the Rules by
failing to ensure that EAS equipment was operational when the station was
7. 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." Rodgson's tower was energized
during operating hours and therefore had radio frequency potential at
its base. On August 19, 2009, agents from the Atlanta Office observed
that the wooden fence surrounding the station's antenna structure was
missing its lower planks and thus provided access to the tower base.
The fence was in such a condition of disrepair at the time of the
FCC's inspection so as to have been ineffective for more than one day
and the station's general manager admitted that he had not visited the
tower site in a long time. In addition, the gate for the fence was
removed from its hinges and propped up against the gate opening. The
gate's rusty chain, which may have previously served as a lock, did
not appear to have been functional as a locking mechanism for quite
some time. The agents also did not observe a fence around the
perimeter of the property. Thus, based on the evidence before us, we
find that Rodgson willfully and repeatedly violated Section 73.49 of
the Rules by failing to maintain an effective locked fence or other
enclosure at the base of the station's antenna tower.
8. Section 73.3526 of the Rules states that "[e]very permittee or
licensee of an AM, FM, TV or a Class A station in the commercial
broadcast services shall maintain a public inspection file containing
material outlined in this section." The public inspection file shall
be maintained at the main studio of the station and shall be available
for public inspection at any time during regular business hours. On
August 19, 2009, agents from the Atlanta Office asked to inspect the
station's public inspection file at its main studio during normal
business hours. The general manager stated that the station never had
a public inspection file. The agents found no evidence of a public
inspection file at the station and the station's staff was unable to
produce any of the required documents. Thus, based on the evidence
before us, we find that Rodgson willfully and repeatedly violated
Section 73.3526 of the Rules by failing to maintain a public
inspection file. We also find that Rodgson willfully violated Section
73.3536 of the Rules by failing to make available a public inspection
9. In its response to the NAL, Rodgson does not dispute that it violated
the rules identified above. Rodgson instead describes the steps it
took to correct the violations. The Commission has long held, however,
that post-inspection corrective action taken to come into compliance
with the Rules is expected, and such corrective action does not
nullify or mitigate any prior forfeitures or violations. Rodgson also
asserts that it did not intend to violate the rules, and, in the case
of the public inspection file rules, was unaware of the requirements.
A violation, however, may be "willful" if it is conscious and
deliberate, irrespective of any intent to violate the rules. Finally,
Rodgson requests reduction or cancellation of the proposed forfeiture,
because it asserts the forfeiture amount would pose a financial
hardship. It submits its three most recent years of tax returns to
substantiate its claim. With regard to an individual's or entity's
inability to pay, the Commission has determined that, in general,
gross revenues are the best indicator of an ability to pay a
forfeiture. We have reviewed Rodgson's documentation and conclude that
a reduction of the proposed forfeiture is warranted. Accordingly,
pursuant to the statutory factors above, and in conjunction with the
Forfeiture Policy Statement, we reduce the forfeiture to $5,500, based
on Rodgson's inability to pay the proposed forfeiture.
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, Rodgson, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of five thousand five hundred
dollars ($5,500) for violations of Sections 11.35, 73.49 and 73.3526
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 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.
Rodgson shall also send electronic notification to
SCR-Response@fcc.gov on the date said payment is made.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Rodgson, Inc. at
its address of record and to its counsel, Larry D. Perry, 11464 Saga
Lane, Knoxville, TN 37931-2819.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S:S: 11.35, 73.49, 73.3526.
At the time of the inspection, the station's EAS equipment was incapable
of sending a test over the air.
The only evidence of functional EAS equipment at the station was an old
EAS log from 1997.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032480002
(Enf. Bur., Atlanta Office, rel. January 11, 2010) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S:S: 11.11, 11.41. Rodgson states that it thought that it was
not participating in the EAS network. However, it could not locate a
non-participating national authorization letter from the Commission. See
47 C.F.R. S: 11.41(b).
47 C.F.R. S:S: 11.1, 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
47 C.F.R. S: 11.35.
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, 4388 P: 5 (1991), recon. denied, 7 FCC Rcd 3454 (1992).
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 at 4388; Western Wireless Corporation, 18 FCC Rcd
10319, 10328 n.56 (2003).
47 C.F.R. S: 73.49.
47 C.F.R. S: 73.3526.
47 C.F.R. S:S: 73.3526(b)(1), 73.3526(c).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994),
International Broadcasting Corporation, Order on Review, 25 FCC Rcd 1538
(2010), Rama Communications, Inc., Memorandum Opinion and Order, 24 FCC
Rcd 4981 (Enf. Bur. 2009), Bethune-Cookman College, Inc.. Forfeiture
Order, 24 FCC Rcd 4513 (South Central Region 2009).
See supra note 13.
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 10-2044
Federal Communications Commission DA 10-2044