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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Hoosier Public Radio Corporation Licensee of Station
WRFM-FM Wilkinson, Indiana ) ) ) ) ) ) File No.: EB-FIELDNER-12-00004400
NAL/Acct. No.: 201232320002 FRN: 0006402911 Facility ID No.: 173964
Adopted: October 28, 2013 Released: October 28, 2013
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of eight thousand dollars ($8,000) to Hoosier Public Radio
Corporation (Hoosier), licensee of Non-Commercial Educational Station
WRFM-FM, in Wilkinson, Indiana (Station), for willfully and
repeatedly violating Section 73.1350(a) of the Commission's rules
(Rules).^ The noted violation involved Hoosier's failure to maintain
and operate its broadcast station in accordance with the terms of the
2. On March 8, 2012, the Enforcement Bureau's Chicago Office (Chicago
Office) issued a Notice of Apparent Liability for Forfeiture and
Order (NAL) ^ ^ to Hoosier for operating its Station on 89.1 MHz from
an unauthorized location without a special temporary authorization
(STA). Specifically, the Chicago Office found that Hoosier had
operated on September 28, 2010, and February 10 and 14, 2011, 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
Longitude in Jackson Township, Hancock County, Indiana (hereinafter
referred to as the "Farm Silo"), which is approximately three miles
from the Station's authorized transmitter location. The Chicago
Office also determined that spurious emissions from the Station's
operation at the Farm Silo caused harmful interference to the Federal
Aviation Administration (FAA) on February 10, 2011.
3. Hoosier submitted a response to the NAL, in which it does not dispute
that it was operating from the Farm Silo, but claims that it had filed
an STA request with the Commission to operate at that location.^
Hoosier also claims that there is insufficient evidence to support the
finding in the NAL that the Station was causing interference to the
FAA from the Farm Silo on February 10, 2011, and that therefore the
$4,000 upward adjustment proposed in the NAL for the FAA interference
was not warranted.^ Hoosier further requests a reduction to the
proposed forfeiture based on its history of compliance with the Rules
and its inability to pay.^
4. 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 Forfeiture Policy
Statement.^ In examining Hoosier's response, Section 503(b)(2)(E) 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 have considered Hoosier's response in
light of these statutory factors and find that a cancellation or
reduction of the forfeiture is not warranted.
5. We reject Hoosier's claim that it had authority on the dates at issue
in the NAL to operate from the Farm Silo pursuant to an STA. According
to the Commission's records, Hoosier did not submit a valid STA
request until February 16, 2011.^ The STA, which was granted the next
day, authorized Hoosier to operate from a Church Steeple located at
310 S. Main Street, Wilkinson, Indiana (hereinafter referred to as the
"Church Steeple"), not from the Farm Silo.^ Hoosier does not provide
any evidence to support its claim that it filed STA requests with the
Commission prior to February 14, 2011, for the Farm Silo.^ Indeed, the
only letter Hoosier submitted with the NAL Response was the letter it
submitted to the Commission along with the STA request that the Media
Bureau dismissed on February 16, 2011, for the Church Steeple site.^
Even assuming Hoosier had filed an STA request prior to February 14,
2011, Commission precedent is clear that, contrary to Hoosier's
assertion, authority to operate at variance from a license must be
received prior to commencement of such operation.^ We therefore find
that Hoosier willfully and repeatedly violated Section 73.1350(a) of
the Rules by failing to operate its Station in accordance with the
terms of its station authorization on September 28, 2010, and February
10 and 14, 2011.
6. We also find that the $4,000 upward adjustment based on the
interference caused by the Station to the FAA on February 10, 2011, is
fully supported by the evidence. On February 10, 2011, after
receiving a report from the FAA of interference on aeronautical
frequency 126.83 MHz, an agent from the Chicago Office determined that
there was a spurious emission emanating from the Farm Silo on 126.83
MHz.^ The agent immediately contacted Hoosier, and its owner, Martin
Hensley, directed the agent to locate the circuit breaker and turn off
the transmitter. With the assistance of the farm's owner, the agent
located the circuit breaker and turned off the transmitter. After
turning off the Station's power, the agent confirmed that the spurious
emissions on 126.83 MHz had ceased. While waiting for Mr. Hensley to
arrive, the agent drove around the area and confirmed that there were
no other signals in the area on aeronautical frequency 126.83 MHz.
When Mr. Hensley later arrived at the Farm Silo, he replaced the
transmitter and the agent confirmed that the Station no long produced
spurious emissions on 126.83 MHz.^ We therefore find that the proposed
upward adjustment in the amount of $4,000 is warranted.
7. We find no basis for reducing the forfeiture based on Hoosier's
inability to pay. When faced with claims alleging an inability to pay,
the Commission has determined that gross revenues are generally the
best indicator of an individual or entity's ability to pay a
forfeiture.^ As stated in the NAL, 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.^ Hoosier claims
that it is not required to file tax returns because it has no income.^
In lieu of tax returns, Hoosier submits a "Financial Statement" that
it claims is a "standard yearly reporting of a Not for Profit."^ The
Financial Statement was not prepared according to GAAP and there is no
evidence that it was prepared by an objective third party. The
Financial Statement is a single page and lists two categories for each
year -equity and debt. Under the equity category, which is most
relevant for our purposes here, the statement lists "income" and "cash
on hand," which Hoosier indicates were zero for each year.^ We find it
entirely implausible that a corporation operating a radio station
could have zero income and zero cash on hand. We therefore conclude
that the financial documentation submitted by Hoosier is neither a
reliable nor objective reflection of Hoosier's current financial
status and we decline to reduce the proposed forfeiture on this basis.
8. We likewise decline to grant Hoosier's request for cancellation based
on its history of compliance with the Commission's rules. While it is
true that no prior sanctions have been issued to Hoosier, the
investigation at issue here has revealed that Hoosier never
constructed the Station at the location authorized in the Station's
license, which was granted in 2008.^ We therefore find that a
reduction for history of compliance is not warranted.
IV. ORDERING CLAUSES
9. 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(f)(4) of the Commission's rules, Hoosier Public
Radio Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
eight thousand dollars ($8,000) for violations of Section 73.1350(a)
of the Commission's rules.^
10. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Hoosier Public Radio Corporation shall
send electronic notification of payment to NER-Response@fcc.gov on the
date said payment is made. The payment must be made by check or
similar instrument, wire transfer, or credit card, and must include
the NAL/Account Number and FRN referenced above. Regardless of the
form of payment, a completed FCC Form 159 (Remittance Advice) must be
submitted.^ When completing the FCC Form 159, enter the Account Number
in block number 23A (call sign/other ID) and enter the letters "FORF"
in block number 24A (payment type code). Below are additional
instructions you should follow based on the form of payment you
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
11. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial Operations,
Federal Communications Commission, 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 by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Hoosier
Public Radio Corporation at 15 Wood Street, Greenfield, Indiana, 46140.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
^ 47 C.F.R. S 73.1350(a).
^ Hoosier Public Radio Corporation, Notice of Apparent Liability for
Forfeiture and Order, 27 FCC Rcd 2319 (Enf. Bur. 2012) (NAL). A
comprehensive recitation of the facts and history of this case can be
found in the NAL and is incorporated herein by reference.
^ Hoosier Public Radio Corporation, Request for Review at 2-8 (April 10,
2012) (on file in EB-10-CG-0743) (NAL Response). We do not address in this
Order any of the issues raised by Hoosier in its NAL Response that do not
relate to the violations at issue in the NAL. See 47 C.F.R. S 1.80(f)(3).
^ NAL Response at 10-13.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See BSTA20110216ABX. Although Hoosier first filed an STA request on
February 14, 2011, it was dismissed on February 16, 2011, because the
description of the site and geographical coordinates provided in the STA
request did not match. See BSTA20110214AAJ. See also Letter from Charles
N. Miller, Engineer, Audio Division, FCC Media Bureau, to Hoosier Public
Radio Corporation (Feb. 16, 2011) (on file in EB-FIELDNER-12-00004400).
^ See BSTA20110216ABX.
^ Throughout its NAL Response, Hoosier makes several statements without
supporting documentation and/or identifying dates regarding STA requests
it allegedly filed prior to February 2011. See NAL Response at 3 ("the
first and second request was never acted on," "the two discrete paper
filed applications were not denied and were accepted by inclusion in
February 2012 in conjunction with the 3d and 4^th STA request," "WRFM-FM
has previously provided the copies of two mailed filings for the STA
requests which were properly filed via mail . . . applications and their
authenticity were confirmed when Staff granted the current STA," "grant of
the current STA was not allowed until it was determined the filings were
in fact made"). Contrary to Hoosier's claim, the Media Bureau's grant of
the STA request on February 17, 2011, did not validate Hoosier's claim
that it submitted an STA request prior to February 2011, nor was the STA
retroactive to the dates on which Hoosier claims it previously submitted
STA requests. Even if the STA grant could be applied retroactively, it
would be meaningless with regard to Hoosier's operation at the Farm Silo
because the STA granted on February 17, 2013, authorized operation at the
Church Steeple, not the Farm Silo.
^ See NAL Response at Exhibit D.
^ See NAL Response at 3, 7. Section 73.1635(a)(1) of the Rules, 47 C.F.R.
S 73.1635(a)(1), provides that a "request for a STA should be filed with
the FCC in Washington, DC at least 10 days prior to the date of the
proposed operation." See also Letter from Peter H. Doyle, Chief, Audio
Division, Media Bureau, to Lauren A. Colby, Esq., Counsel, Humberto Lopez
dba Benavides Communications, 21 FCC Rcd 1248, 1251, n. 25 (Med. Bur.
2006) (special temporary authority must be sought to permit the operation
of a broadcast facility for a limited period at variance from its
authorization, and that authority must be received prior to the
commencement of such operation). We also note that Section 73.1635(a)(1)
of the Rules specifically states that the STA request must be submitted
with the FCC in Washington, DC. 47 C.F.R. S 73.1635(a)(1). To the extent
Hoosier argues that it sent copies of the STA requests to the Chicago
Office (see NAL Response at 7), such copies would not constitute a proper
filing under Section 73.1635(a)(1) of the Rules. Furthermore, Hoosier
mistakenly believes that agents from the Chicago Office assented to the
Station's operation from the Farm Silo because they did not direct him to
permanently shut down the Station. An agent's goal is to ensure a
station's compliance with the Commission's rules without disrupting
service to the station's listeners, if possible. Here, the agents from the
Chicago Office did not direct Hoosier to shut down the Station, but rather
advised Hoosier to obtain an STA. In doing so, they neither approved
operation from the Farm Silo nor impacted the FCC's authority to assess a
forfeiture for the time period during which Hoosier operated the Station
from an unauthorized location.
^ NAL, 27 FCC Rcd at 2320, para. 4.
^ Id. at 2320, para. 4, n. 3.
^ PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7
FCC Rcd 2088 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Order of Forfeiture, 15 FCC Rcd 24385 (2000) (forfeiture
not deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues).
^ NAL, 27 FCC Rcd at 2322, para. 15.
^ NAL Response at 8.
^ Id.; see also Exhibit D to NAL Response.
^ Under the debt category, Hoosier lists "transmitter package" and
"facilities." For each year, the transmitter package is valued at $9,000
while the facilities range in value from $12,000 to $36,000.
^ See BLED20081001ATR. Station WRFM-FM's licensed coordinates are 39DEG
52' 46" North Latitude and 85DEG 38' 11" West Longitude.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
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Federal Communications Commission DA 13-2068
Federal Communications Commission DA 13-2068