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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Church Point Ministries, Inc. )
Station WNDC (AM) ) File No. EB-00-OR-
051
Baton Rouge, Louisiana ) NAL/Acct.No.
X3262008
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August
21, 2000
By the Enforcement Bureau, New Orleans Field Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that Church Point Ministries, Inc. (``Church Point''),
licensee of station WNDC (AM), Baton Rouge, Louisiana, has
apparently violated sections 17.4(a)(2), 73.49, and 73.3526(a)(2)
of the Commission's Rules (``Rules'') for failure to register the
station's antenna structures by July 1, 1998, failure to provide
an effective locked fence or other enclosure around the base of
any antenna having radio frequency potential at its base, and
failure to maintain a public inspection file.1 We conclude that
Church Point is apparently liable for a forfeiture in the amount
of fifteen thousand dollars ($15,000).
II. BACKGROUND
2. On August 17, 1999, an agent from the Commission's New
Orleans Field Office (``Field Office'') inspected the four
antenna structures for station WNDC (AM) and found that the
antenna structure registration numbers were not displayed. A
check of the Commission's databases revealed that these antenna
structures had not been registered.
3. On August 20, 1999, the Field Office sent a Notice of
Violation (``NOV'') to Church Point for failure to register the
antenna structures. On October 6, 1999, Church Point submitted a
written reply. Subsequently, on October 14, 1999, a Field Office
agent spoke with a representative of Church Point by telephone
during which Church Point's representative admitted that Church
Point owned the antenna structures in question and stated that
they would register the structures immediately.
4. On April 13 and 25, 2000, New Orleans Field agents
conducted a second inspection of station WNDC (AM). During this
inspection, the Field agents noted numerous violations of the
Rules including, failure to register the four antenna structures;
failure to provide effective locked fences or other enclosures
around the base of the antenna structures; and failure to
maintain a local public inspection file for the station.
5. On May 11, 2000, the Field Office issued a NOV to
Church Point citing the above mentioned violations. On May 26,
2000, Church Point filed a reply addressing the various
violations. Specifically, Church Point stated that it would
register the antenna structures by May 31, 2000, and it had added
new locks and chains to the fences around the antenna structures.
III. DISCUSSION
6. Section 17.4(a)(2) of the Rules states, ``[f]or an
existing antenna structure that had been assigned painting or
lighting requirements prior to July 1, 1996, the owner must
register the structure prior to July 1, 1998.''2 At the time of
the April 13, 2000 inspection, no application had been filed with
the Commission to register the station's four antenna structures,
in spite of the fact that Church Point previously had been
notified of its obligation to register the antenna structures
during a previous inspection and in a previous NOV.
Additionally, a Field Office agent spoke with a representative of
Church Point by telephone on October 14, 1999. At that time, the
Church Point representative stated that the antennas would be
registered immediately, but had not done so six months later, as
of the April 2000 inspection. See e.g., La Favorita, Inc., EB-
00-AT-528 (EB, Atlanta Office June 22, 2000) (Issued $7,000
forfeiture for, among other things, failure to register antenna
structure).
7. 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.3 At the time
of the April 13, 2000 inspection, one of the individual fences
surrounding each of the four antenna towers had its gate standing
open. While the other three gates were closed and locked, the
Field Office agent found that each could be easily opened by a
simple push on the gate. Although the property did have a
perimeter fence, the driveway gate had completely fallen off its
hinges and was lying on the ground. Additionally, this fence was
not complete on all sides of the property making it ineffective
in preventing access to the towers. See e.g., Reier Broadcasting
Company, Inc., EB-00-ST-004, (EB, Seattle Office, February 29,
2000) ($7,000 Notice of Apparent Liability issued for violation
of 47 C.F.R. Section 73.49), forfeiture order issued, Reier
Broadcasting Company, Inc., DA 00-1454 (EB, released June 29,
2000) ($7,000 forfeiture order). In both cases, the licensees
failed to maintain an effective locked fence around their antenna
towers.
8. Section 73.3526(a)(2) of the Rules states in part,
``[e]very permittee or licensee of an AM, FM, or TV station in
the commercial broadcast services shall maintain a public
inspection file containing the material, relating to that
station, described in paragraphs (e)(1) through (e)(10) and
paragraph (e)(13) of this section.''4 In addition, ``every
permittee or licensee of a commercial AM or FM station shall
maintain for public inspection a file containing material,
relating to that station, described in paragraphs (e)(12) and
(e)(14) of this section. . . .''5 At the time of the April 13,
2000 inspection,
Church Point was unable to locate any of the materials required
to be in the public inspection file. Subsequently, in its May 26,
2000 reply to the NOV, Church Point stated that a local public
inspection file had been constructed and was available. Further,
it claimed that while the public inspection file documents were
on hand, the documents were not organized in a manner for easy
inspection. See e.g., WGUL?FM Inc., Radio Station WINV(AM)
Inverness, FL, DA 00?897 (EB April 21, 2000) ($7000 forfeiture
assessed for, among other things, violation of 47 C.F.R. Section
73.3526).
9. Based on the evidence before us, we find that Church
Point willfully6 and/or repeatedly violated Sections 17.4(a)(2),
73.49, and 73.3526(a)(2) of the Rules. Pursuant to The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
(``Forfeiture Policy Statement''), the base forfeiture amount for
failure to register the antenna structures (failure to file
required forms) is $3,000, the base forfeiture amount for failure
to maintain an effective antenna tower fence is $7,000, and the
base forfeiture amount for failure to maintain a public
inspection file 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)(D) of the Communications Act of 1934
(``Act''), as amended, which include the nature, circumstances,
extent, and gravity of the violation(s), 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.7 Taking these factors into account, we are reducing the
forfeiture for the Public Inspection File violation to $5,000, as
many of the documents in question may have been available at the
station, but not assembled in an organized manner. Applying the
Forfeiture Policy Statement and statutory factors to the instant
case, a $15,000 forfeiture is warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80 of the
Rules,9 Church Point Ministries, Inc., is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen
thousand dollars ($15,000) for violating Sections 17.4(a)(2),
73.49, and 73.3526(a)(2) of the Rules, 47 C.F.R. §§ 17.4(a)(2),
73.49, and 73.3526(a)(2).
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules,10 within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Church Point Ministries, Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
12. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. X3262008.
13. The response, if any, must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau - TPSD,
NAL/Acct. No. X3262008, and must include the NAL/Acct. No.
X3262008.
14. 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; 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.
15. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.11
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Church Point Ministries, Inc., 3000
Tecumseh Street, Baton Rouge, Louisiana 70805.
FEDERAL COMMUNICATIONS COMMISSION
James C. Hawkins
District Director
New Orleans Field Office
_________________________
1 47 C.F.R. §§ 17.4(a)(2), 73.49, and 73.3526(a)(2).
2 47 C.F.R. §17.4(a)(2).
3 47 C.F.R. §73.49.
4 47 C.F.R. § 73.3526(a)(2).
5 Id.
6 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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. . . .'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
7 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement,
12 FCC Rcd at 17100-01 (discussion of upward and downward
adjustment factors).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 1.80.
11 See 47 C.F.R. § 1.1914.