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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No.: EB-10-CG-0743
Hoosier Public Radio Corporation NAL/Acct. No.: 201232320002
Licensee of Station WRFM-FM FRN: 0006402911
Wilkinson, Indiana Facility ID No.: 173964
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: March 7, 2012 Released: March 8, 2012
By the District Director, Chicago Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Hoosier Public Radio Corporation (Hoosier), licensee of
Non-Commercial Educational Station WRFM-FM, in Wilkinson, Indiana
(Station), apparently willfully and repeatedly violated Section
73.1350(a) of the Commission's rules (Rules), by failing to maintain
and operate its broadcast station in accordance with the terms of the
Station's authorization. We conclude that Hoosier is apparently liable
for a forfeiture in the amount of eight thousand dollars ($8,000). We
also direct Hoosier to submit a report, signed under penalty of
perjury, regarding the status of the Station's operations.
2. The license for Station WRFM-FM authorizes Hoosier to operate a
Non-Commercial Educational FM Station on 89.1 MHz in Wilkinson,
Indiana. More specifically, the license provides that the Station's
transmitter shall be located at the geographical coordinates of 39DEG
52' 46" north latitude and 85DEG 38' 11" west longitude, which is in
rural Brown Township, Hancock County, Indiana.
3. On September 28, 2010, in response to a complaint, an agent from the
Enforcement Bureau's Chicago Office (Chicago Office) commenced an
investigation into the Station's operations. The agent traveled to the
transmitter site authorized in the Station's license and found no
transmission facilities of any kind. On September 30, 2010, the agent
conducted an inspection with Martin Hensley, Hoosier's president and
chief operator, at the Station's main studio and at the Station's
authorized transmitter site. The agent found that the Station was
operating from an antenna mounted on a farm silo at the approximate
geographic coordinates of 39-o 50' 15" north latitude and 85-o 37' 30"
west latitude in rural Jackson Township, Hancock County, Indiana
(hereinafter referred to as the "Farm Silo" location), which is
approximately three miles from the Station's authorized transmitter
location. During the inspection, Mr. Hensley was not able to provide
the agent a copy of a license authorizing the Station to operate from
the Farm Silo. Mr. Hensley did provide the agent a copy of a letter,
dated January 5, 2009, in which Hoosier advised the Commission that it
had moved from its licensed facilities and requested authorization to
locate its facilities temporarily at a nearby site. Hoosier could not
provide proof that the letter was properly filed with the Commission.
The Commission also has no record of receiving the January 5, 2009,
letter and, according to the Commission's records, Hoosier has never
been granted a Special Temporary Authorization (STA) to operate from
the Farm Silo.
4. On February 10, 2011, in response to a complaint from the Federal
Aviation Administration (FAA) concerning harmful interference in
Wilkinson, Indiana, an agent from the Chicago Office determined that
the interfering signal was coming from the Station, which was still
operating from the Farm Silo without an STA. On the following day, an
agent from the Chicago Office contacted Mr. Hensley regarding the
Station's continued unauthorized operation and advised Mr. Hensley
that an STA was required to operate from the Farm Silo. Another agent
from the Chicago Office conducted a follow-up investigation and found
that the Station was still operating from the Farm Silo on February
5. On February 16, 2011, Hoosier filed an STA request for authorization
to operate from a nearby church. The FCC's Media Bureau granted the
STA on February 17, 2011. On August 2, 2011, an agent monitored the
frequency 89.1 MHz in Wilkinson, Indiana, and found that the Station
was not broadcasting.
6. 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 Sections 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
A. Operating Station at an Unauthorized Location
7. Section 73.1350(a) of the Rules states that each licensee is
responsible for maintaining and operating its broadcast station in
accordance with the terms of the station authorization. On September
30, 2010, and on February 10 and 14, 2011, agents from the Chicago
Office determined that Hoosier operated the Station from an
unauthorized location without an STA. Because Hoosier consciously
operated the station, we find that the violation was willful.
Furthermore, because the unauthorized operation occurred on more than
one day, we find that the violation was also repeated. Based on the
evidence before us, we conclude that Hoosier apparently willfully and
repeatedly violated Section 73.1350(a) of the Rules by failing to
maintain and operate its broadcast station in accordance with the
terms of its station authorization.
B. Proposed Forfeiture and Reporting Requirement
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for construction or
operation at an unauthorized location is $4,000. 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. We find that Hoosier's continued
operation from an unauthorized location even after the FCC agent's
inspection on September 30, 2010, which resulted in harmful
interference to the FAA, constitutes egregious behavior warranting an
upward adjustment of $4,000. Applying the Forfeiture Policy Statement,
Section 1.80 of the Rules, and the statutory factors to the instant
case, we conclude that Hoosier is apparently liable for a total
forfeiture in the amount of $8,000.
9. We also direct Hoosier to submit a written statement signed under
penalty of perjury, pursuant to Section 1.16 of the Rules, by an
officer or director of Hoosier, reporting on the status of the
Station's operations (i.e., whether it is currently broadcasting; if
not, an explanation as to why, and when, it has stopped broadcasting)
and the location of its transmitter. This statement must be provided
to the Chicago Office at the address listed in paragraph 14, below,
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order.
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, 0.204(b),
0.311, 0.314, and 1.80 of the Commission's Rules, Hoosier Public
Radio Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violation of Section 73.1350(a) of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture and Order, Hoosier
Public Radio Corporation SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
12. IT IS FURTHER ORDERED that Hoosier Public Radio Corporation SHALL
SUBMIT a sworn statement, as described in paragraph 10, to the
Enforcement Bureau Office listed in paragraph 14 within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order.
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
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. 20554.8 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, Hoosier Public Radio
Corporation will send electronic notification on the date said
payment is made to NERfirstname.lastname@example.org.
14. 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. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Chicago District Office, 1550 Northwest Highway, Suite 306,
Park Ridge, IL 60068 and include the NAL/Acct. No. referenced in the
caption. Hoosier Public Radio Corporation also shall email the
written response to NER-Response@fcc.gov.
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 and Order shall be sent by both Certified Mail, Return
Receipt Requested and regular mail to Hoosier Public Radio Corporation
at 15 Wood Street, Greenfield, Indiana 46140.
FEDERAL COMMUNICATIONS COMMISSION
James M. Roop
47 C.F.R. S: 73.1350(a).
Letter from Martin Hensley to FCC Secretary (Jan. 5, 2009) (on file in
EB-10-CG-0743). The letter did not identify the location of the new
Hoosier replaced the transmitter and the interference to the FAA ceased.
On November 4, 2011, the Commission granted Hoosier's request for
extension of the STA, which is now set to expire on May 4, 2012. See
Hoosier is being asked to report on the current status of its operations.
See infra paragraph 9.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 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), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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."
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"), recons. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314, 1.80,
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 12-350
Federal Communications Commission DA 12-350