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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Spirit Broadcasting, Inc. ) File Number: EB-10-NF-0020
Licensee of Station WGTM (AM) ) NAL/Acct. No.: 201132640003
Wilson, North Carolina ) FRN: 0009359811
Facility ID # 61929 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 18, 2011 Released: July 18, 2011
By the Resident Agent, Norfolk Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that Spirit Broadcasting, Inc., ("Spirit"), licensee of
Station WGTM(AM), in Wilson, North Carolina, apparently willfully and
repeatedly violated sections 11.35, 73.49, and 73.3526 of the
Commission's rules ("Rules") by failing to: (1) maintain operational
Emergency Alert System ("EAS") equipment; (2) enclose an antenna
tower, having radio frequency potential at the base, within an
effectively locked fence; and (3) maintain and make available a public
inspection file. We conclude that Spirit is apparently liable for a
forfeiture in the amount of twenty-five thousand dollars ($25,000).
We further order Spirit to submit a sworn statement certifying that it
is currently in compliance with sections 11.35, 73.49, and 73.3526 of
2. On March 8 and March 10, 2010, in response to a complaint, an agent
from the Enforcement Bureau's Norfolk Office visited Station WGTM's
unattended transmitter site in Rock Ridge, North Carolina. On both
dates, the agent observed that the base fence for one of the antennas
of Station WGTM's four-antenna array, antenna structure number
1010779, which had radio frequency potential at the base, was unlocked
and in disrepair. The agent also observed that there was no perimeter
fence around the Station WGTM property.
3. On March 8, 2010, an agent from the Norfolk Office, accompanied by the
station's general manager/President of Spirit, also conducted an
inspection of the main studio for Station WGTM at 520 Ward Boulevard
in Wilson, North Carolina. The agent conducted the inspection during
regular business hours and when the station was in operation. The
agent observed that Station WGTM did not have an installed, functional
EAS system and had no documentation, logs, or records showing that EAS
equipment had ever been installed at the main studio or that any EAS
weekly or monthly tests had ever been sent or received. In response to
a request to inspect the station's public inspection file, the general
unable to produce or make available the station's public inspection file
or any of the required contents of the file.
4. In a response to a Letter of Inquiry from the Commission, Spirit
stated that during the inspection on March 8, 2010: (1) they were in
the midst of a move from Ward Boulevard to a new main studio on Martin
Luther King Parkway; (2) the EAS equipment and public inspection file
were in transit; (3) unbeknownst to the general manager, one of the
engineers had the EAS equipment in his possession and it needed
repair; (4) that the public inspection file is now available at the
Martin Luther King Parkway main studio; (5) that the EAS unit is now
installed at the Martin Luther King Parkway main studio; (6) that it
is unknown when the fence first became unlocked, (7) that the base
fence has been fixed twice since the inspection due to vandalism, and
(8) that the fence has generally been checked once a week since March
2010. In a subsequent response, Spirit added that the EAS equipment
was installed at the Martin Luther King Parkway main studio on June
10, 2010. Spirit also provided a copy of an invoice which indicates
EAS equipment was "set up" at an unspecified location on April 18,
2010. Spirit stated it would provide a supplement from its engineer
clarifying when its EAS equipment became defective, was removed for
repair, and was re-installed, but the supplement was never submitted.
5. Section 503(b) of the Communications Act of 1934, as amended ("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. Section
312(f)(1) of the Act defines willful as the "conscious and deliberate
commission or omission of [any] act, irrespective of any intent to
violate" the law. The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both section
312 and 503(b) of the Act and the Commission has so interpreted the
term in the section 503(b) context. The Commission may also assess
a forfeiture for violations that are merely repeated, and not willful.
"Repeated" means that the act was committed or omitted more than once, or
lasts 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 March 8, 2010, an agent from
the Norfolk Office observed Station WGTM operate without any EAS
equipment installed at its main studio. Spirit presented no evidence
that Station WGTM ever had operational EAS equipment or had ever sent
or received any EAS weekly or monthly tests. During the inspection,
the general manager stated that she was not sure when the EAS
equipment had been removed. The general manager later asserted in
writing that the EAS equipment had been removed for repair by the
station's engineer and was in transit for a move to the Martin Luther
King Parkway main studio during the inspection, but failed to provide
evidence of when the equipment became defective and was removed from
service and to clarify when the equipment was re-installed. The
general manager did not mention the move from the Ward Boulevard main
studio to the Martin Luther King Parkway main studio during the
inspection. Because Spirit consciously operated its station and was
without EAS equipment for more than one day, we find that the
apparent violations were willful and repeated. Therefore, based on the
evidence before us, we find that Spirit apparently willfully and
repeatedly violated section 11.35 of the Rules by failing to install
operational EAS equipment.
8. Section 73.49 of the Rules requires that antenna towers having radio
frequency potential at the base must be enclosed within effective
locked fences or other enclosures. On March 8, 2010 and March 10,
2010, when the station was in operation, an agent from the Norfolk
Office observed that the gate to the base fence surrounding Spirit's
antenna structure number 1010779 was opened and not locked. The agent
also observed that there was no perimeter property fence for the
property. Spirit states that it does not know when the fence first
became damaged and unlocked and was not regularly inspecting the fence
prior to the inspection. Therefore, based on the evidence before us,
we find that Spirit apparently willfully and repeatedly violated
section 73.49 of the Rules by failing to enclose an antenna tower with
radio frequency potential at the base within an effective locked
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. In response to a request during regular business hours on March
8, 2010, at its Ward Boulevard main studio, Station WGTM was unable to
make its public inspection file or any of the required contents of the
file available. During the inspection, the station's general manager
stated that she was not sure where the public inspection file was
located. She made no mention at that time that the station was
relocating its main studio. Later, in the First LOI Response, the
general manager asserted that the public inspection file was in
transit for a move to a new Martin Luther King Parkway main studio at
the time of the inspection, The general manager admitted, however,
that at the time of the March 8 inspection, the Martin Luther King
Parkway main studio was not operational. Under these circumstances,
Spirit's actions would still constitute a violation of section
73.3526. That section requires that the public file be made available
for public inspection at the station's main studio, which at the time
of the inspection was located on Ward Boulevard. Moreover, Spirit made
no indication to the agent during the inspection that its public file
was available at another location; rather, as noted above, the
station's general manager stated that she did not know where the file
was located. Thus, based on the evidence before us, we find that
Spirit apparently willfully and repeatedly violated section 73.3526 of
the Rules by failing to maintain a public inspection file at its main
studio and apparently willfully failed to make available its public
inspection file upon request.
10. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for EAS equipment not
installed or operational is $8,000, for AM tower fencing is $7,000,
and for violation of public file rules is $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, any 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 Spirit is apparently liable for a total
forfeiture of $25,000, consisting of $8,000 for its EAS violations;
$7,000 for its AM tower fencing violations; and $10,000 for its public
inspection file violations.
11. We direct Spirit to submit a statement signed under penalty of perjury
by an officer or director of Spirit stating that: (1) it has installed
operational EAS equipment in its main studio in compliance with
section 11.35 of the Rules; (2) the base fence surrounding Station
WGTM(AM)'s antenna structure number 1010779 is locked and effective,
in compliance with section 73.49 of the Rules; and (3) a complete
public inspection file is available at Station WGTM(AM)'s main studio.
This statement must be provided to the Norfolk Office at the address
listed in paragraph 16 within thirty days after the release date of
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, 0.204,
0.311, 0.314, and 1.80 of the Commission's Rules, Spirit Broadcasting,
Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of twenty-five thousand dollars ($25,000) for violations
of sections 11.35, 73.49, and 73.3526 of the Rules.
13. 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 and Order, Spirit
Broadcasting, Inc., SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
14. IT IS FURTHER ORDERED that Spirit Broadcasting, Inc. SHALL SUBMIT a
sworn statement as described in paragraph 11 to the Norfolk Office
within thirty days after the release date of this Notice of Apparent
Liability for Forfeiture and Order.
15. 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 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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Spirit Broadcasting Inc.
shall send electronic notification on the date said payment is made to
16. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Norfolk Office, 1457 Mount Pleasant Road Suite
113, Chesapeake VA 23322 and must include the NAL/Acct. No. referenced
in the caption. Spirit also shall email the written response to
17. 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.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to Spirit Broadcasting, Inc. at
P.O. Box 3837, Wilson, NC 27895.
FEDERAL COMMUNICATIONS COMMISSION
South Central Region
47 C.F.R. S:S: 11.35, 73.49, 73.3526.
Letter from Luther Bolden, Resident Agent, Norfolk Office, to Spirit
Broadcasting, Inc., dated August 25, 2010.
See Letter from Celestine Willis, President, Spirit Broadcasting, Inc., to
Luther Bolden, Resident Agent, Norfolk Office, dated September 13, 2010
("First LOI Response").
Letter from Luther Bolden, Resident Agent, Norfolk Office, to Spirit
Broadcasting, Inc., dated November 9, 2010.
See Letter from Celestine Willis, President, Spirit Broadcasting, Inc., to
Luther Bolden, Resident Agent, Norfolk Office, dated November 23, 2010
("Second LOI Response").
Id. Spirit states the EAS was installed at the transmitter site on April
18, 2010, but the invoice did not specify the installation location.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Conf. Rep. No. 97-765 at 51 (1982) ("This provision [inserted in
section 312] defines the terms `willful' and `repeated' for purposes of
section 312, and for any other relevant section of the act (e.g., section
503) . . . . As defined[,] . . . `willful' means that the licensee knew
that he was doing the act in question, regardless of whether there was an
intent to violate the law. `Repeated' means more than once, or where the
act is continuous, for more than one day. Whether an act is considered to
be `continuous' would depend upon the circumstances in each case. The
definitions are intended primarily to clarify the language in sections 312
and 503, and are consistent with the Commission's application of those
terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) recon. denied, 7
FCC Rcd 3454 (1992) ("Southern California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
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).
See 47 C.F.R. S: 11.35(a) (requiring EAS Participants to make entries in
the broadcast station log explaining why any EAS tests or activations were
not received or sent).
Section 11.35(b) of the Rules allows licensees to operate without
defective EAS equipment pending its repair or replacement for 60 days
without further FCC authority. Entries must be made in the broadcast
station log showing the date and time the equipment was removed and
restored to service. 47 C.F.R. S: 11.35(b). Because Spirit has no records
of when its EAS equipment became defective or was removed for repair and
has no evidence of having sent or received any EAS tests, Spirit has not
shown that it was without effective EAS equipment pending its repair for
less than 60 days.
Spirit provided an unsigned invoice stating EAS equipment had been
re-installed at an unspecified location on April 18, 2010, so Spirit may
have been without operational equipment until at least April 18, 2010, but
in any case it installed EAS equipment by June 10, 2010 at its new main
studio. Second LOI Response at 2.
47 C.F.R. S: 73.49
First LOI Response at 4-5.
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).
First LOI Response at 2.
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 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
11.35, 73.49, 73.3526.
See 47 C.F.R. S:1.1914.
(...continued from previous page)
Federal Communications Commission DA 11-1194
Federal Communications Commission DA 11-1194