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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Hubbard's Advertising Agency, Inc. ) File Number: EB-09-NF-0125
Licensee of Station WLLL (AM) ) NAL/Acct. No.: 201032640001
Lynchburg, Virginia ) FRN: 0003730892
Facility ID # 17409 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 6, 2010 Released: May 10, 2010
By the Resident Agent, Norfolk Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Hubbard's Advertising Agency, Inc., ("Hubbard"), licensee of
station WLLL(AM), in Lynchburg, Virginia, apparently willfully and
repeatedly violated Sections 11.35(a), 73.1745(a) and 73.3526 of the
Commission's Rules ("Rules") by failing to maintain operational
Emergency Alert System ("EAS") equipment, exceeding its licensed
nighttime operating power, and failing to maintain and make available
a public inspection file. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended ("Act"), that Hubbard is
apparently liable for a forfeiture in the amount of twenty-two
thousand dollars ($22,000).
2. In response to a complaint that Hubbard was not reducing WLLL's
transmitter output power at night, an agent of the Enforcement
Bureau's Norfolk Office ("Norfolk Office") conducted an on-scene
investigation during both daytime and nighttime hours on November 22,
23, and 24, 2009. The agent observed on those days that the station's
field strength did not change between daytime and nighttime. Hubbard's
license authorizes WLLL to broadcast on the frequency 930 KHz with
9000 watts of power during the day and 42 watts at night.
3. On November 24, 2009, the agent inspected the main studio for station
WLLL in Lynchburg, Virginia during normal business hours and observed
that the station was without a functional EAS system. Hubbard's owner
admitted that the EAS unit had been non-operational for several months
and was unable to produce documentation of when the EAS unit became
inoperative. The station also had no logs or records of any EAS weekly
or monthly tests having been sent. In response to the agent's request
for inspection, Hubbard was unable to produce its public inspection
file or any of the required contents of the file. Hubbard's owner
admitted that he did not maintain a public inspection file and that he
did not know what documents are required to be in the file.
4. On November 24, 2009, the agent, accompanied by Hubbard's owner,
inspected the WLLL transmitter site. Using the direct method (antenna
base current times the antenna resistance), the agent calculated, and
Hubbard's owner confirmed, a daytime transmitter output power of
5002.4 watts (55% of licensed daytime power). When asked about
increasing the power to its licensed daytime power or changing the
system to its nighttime mode of operation, the owner said that a
transmitter defect prevented WLLL from raising or lowering power to
authorized levels. The owner could not provide a date on which the
malfunction first occurred. Field strength levels produced by the
calculated daytime transmitter output power were less than the levels
previously observed by the agent on November 22 and November 23, 2009
and earlier on November 24, 2009. Thus, based on both field strength
measurements and the direct method of power measurement, the agent
determined that Hubbard operated its system at nighttime with a
transmitter power of at least 5002.4 watts, which is more than 10,000%
of its authorized nighttime power.
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
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(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders, and attention signal
generating and receiving equipment are installed and operational so
that the monitoring and transmitting functions are available during
the times the station is in operation. On November 24, 2009, an agent
observed that station WLLL's installed EAS equipment was not
operational when the station was in operation. Hubbard's owner
admitted that an operational EAS encoder/decoder unit had not been
available for several months prior to the inspection on November 24,
2009. Hubbard's owner also admitted that there was no documentation of
the exact date the unit became inoperative, but stated plans had been
made to repair or replace the unit in the future. In addition, Hubbard
was unable to produce any evidence that the EAS unit had ever been
operational or that required EAS weekly or monthly tests had ever been
sent. Therefore, we find that Hubbard apparently willfully and
repeatedly violated Section 11.35(a) of the Rules by failing to ensure
that EAS equipment was operational when the station was in operation.
8. 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.
Based on both field strength measurements and the direct method of
power measurement, we find that Hubbard operated its system at
nighttime with a transmitter power of at least 5002.4 watts, which is
more than 10,000% of its authorized nighttime power, on November 22,
23, and 24, 2009. Therefore, we find that Hubbard apparently
willfully and repeatedly violated Section 73.1745(a) of the Rules by
operating overpower during nighttime hours on November 22, 23, and 24,
9. 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
the material" set forth in this section. The public inspection file
must be maintained at the main studio of the station, and must be
available for public inspection at any time during regular business
hours. During the November 24, 2009 inspection, WLLL was unable to
make its public inspection file or any of the required contents of the
file available for inspection. Hubbard's owner admitted that he had
never maintained a public inspection file nor did he know what
documents were required to be in the file. Based on the evidence
before us, we find that Hubbard apparently willfully and repeatedly
violated Section 73.3526 of the Rules by failing to maintain a public
inspection file. We also find that Hubbard apparently willfully
violated Section 73.3526 of the Rules by failing to make available a
public inspection file.
10. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amounts for not having operational EAS equipment
installed, overpower nighttime operations, and not maintaining, and
making available, a public inspection file are, respectively, $8,000,
$4,000 and $10,000. In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth in Section
503(b) (2) (E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the
violator, the degree of culpability, and history of prior offenses,
ability to pay, and other such matters as justice may require.
Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that
Hubbard is apparently liable for a $22,000 forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Hubbard Advertising Agency,
Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of twenty-two thousand dollars ($22,000) for violations
of Sections 11.35(a), 73.1745(a) and 73.3526 of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Hubbard Advertising
Agency, Inc., SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
13. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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 Federal Reserve Bank of New York, 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. If you have
questions, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
Hubbard Advertising Agency, Inc., will send electronic notification on
the date said payment is made to SCR-Response@fcc.gov.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Norfolk Office
1457 Mount Pleasant Rd, Suite 113, Chesapeake, Virginia 23322 and must
include the NAL/Acct. No. referenced in the caption.
15. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Hubbard Advertising Agency, Inc., at
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
South Central Region
47 C.F.R. S:S: 11.35(a), 73.1745(a), 73.3526.
47 U.S.C. S: 503(b).
Although it was not located in a public inspection file, Hubbard was able
to locate a copy of its station license after 45 minutes of searching.
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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S:S: 11.11, 11.41.
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(a).
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(b).
47 C.F.R. S: 73.3526(c).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35(a),
See 47 C.F.R. S: 1.1914
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Federal Communications Commission DA 10-783
Federal Communications Commission DA 10-783