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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-477
Radio Station WWAB, Inc. ) NAL/Acct.No. 200332700011
Licensee of Radio Station ) FRN 0003-7768-04
WWAB(AM) in Lakeland, Florida )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 9, 2002
By the Enforcement Bureau, Tampa Office:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Radio Station WWAB, Inc., licensee of AM radio
station WWAB, Lakeland, Florida, apparently liable for a
forfeiture in the amount of two thousand dollars ($2,000) for
repeated and willful violation of Sections 11.61(a)(1) and
11.61(a)(2)(i)(A) of the Commission's Rules (``Rules'').1
Specifically, we find Radio Station WWAB, Inc. apparently liable
for failing to conduct weekly and monthly tests of the Emergency
Alert System (``EAS'').
2. On September 10, 2002, agents from the FCC Enforcement
Bureau's Tampa Field Office inspected station WWAB (AM) in
Lakeland, Florida. The broadcast station log contained no
entries reflecting any EAS events or reasons for failure to send
and receive required tests between March and July, 2002. A
station employee stated that the station had not run any EAS
3. Section 11.61(a)(2)(i)(A) of the Rules requires that
effective January 1, 1997, AM, FM, and TV stations must conduct
tests of the EAS header and End of Message codes at least once a
week at random days and times. Radio Station WWAB, Inc. failed
to conduct required weekly EAS tests between March and July,
4. Section 11.61(a)(1) of the rules requires that effective
January 1, 1997, AM, FM, and TV stations must conduct tests of
the EAS header codes, Attention Signal, Test Script and EOM code.
Tests in odd numbered months shall occur between 8:30 a.m. and
local sunset. Tests in even numbered months shall occur between
local sunset and 8:30 a.m. These monthly tests must be
transmitted within 15 minutes of receipt by broadcast stations.
Radio Station WWAB, Inc. failed to conduct required monthly EAS
tests between March and July, 2002.
5. Based on the evidence before us, we find that Radio
Station WWAB, Inc. repeatedly2 and willfully3 violated Sections
11.61(a)(2)(i)(A) and 11.61(a)(1) of the Rules by failing to
conduct weekly and monthly EAS tests.
6. Section 1.80(b)(4) of the Rules4 sets forth the base
forfeiture amounts for various violations of the Commission's
Rules. The Rules do not establish a base forfeiture amount for
violating the Commission's rules requiring EAS tests. Therefore,
we must determine an appropriate forfeiture amount for this
violation.5 The requirement that broadcast stations conduct EAS
tests is similar in both nature and severity to other required
operational performance checks identified in the Rules as
required measurements or required monitoring. Section 1.80(b)(4)
of the Rules sets the base forfeiture amount at $2,000 for
failure to make required measurements or conduct required
monitoring. Therefore, we will assess the base forfeiture for
failing to conduct EAS tests in the amount of $2,000. 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, as amended (``Act''), which
include 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.''6 Considering the
entire record and applying the factors listed above, this case
warrants a $2,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Rules,8 Radio Station WWAB, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of two thousand
dollars ($2,000) for repeated and willful violation of Sections
11.61(a)(2)(i)(A) and 11.61(a)(1) of the Rules by failing to
conduct weekly and monthly tests of the Emergency Alert System.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Radio Station WWAB, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. Payment of the forfeiture may be made 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. and FRN referenced above. Request for payment of
the full amount of this NAL under an installment plan should be
sent to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. referenced above.
11. 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.
12. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
13. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Radio Station WWAB, Inc., P. O. Box 65, Lakeland, Florida
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director, Tampa Office
1 47 C.F.R. §§ 11.61(a)(1) and 11.61(a)(2)(i)(A).
32 The 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 U.S.C. §
Section 312(f)(1) of the Act, 47 U.S.C. § 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 ....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
4 47 C.F.R. § 1.80(b)(4).
5 See The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Forfeiture Policy Statement''), 12 FCC Rcd 17087
(1997), recon. denied 15 FCC Rcd 303 (1999). The Forfeiture
Policy Statement states that ``... any omission of a specific
rule violation from the ... [forfeiture guidelines] ... should
not signal that the Commission considers any unlisted violation
as nonexistent or unimportant.'' Forfeiture Policy Statement, 12
FCC Rcd at 17099. The Commission retains the discretion,
moreover, to depart from the Forfeiture Policy Statement and
issue forfeitures on a case?by?case basis, under its general
forfeiture authority contained in Section 503 of the Act. Id.
6 47 U.S.C. § 503 (b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.