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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Truth Broadcasting Corp. ) File Number EB-01-NF-286
Licensee of AM Radio Station ) NAL/Acct.No. 200232640004
WTOB, Winston-Salem, North ) FRN 4985149
Carolina, and )
Owner of Antenna Structures )
located at 36º 08' 53" North )
Latitude by 080º 19' 11" West
Longitude
Winston-Salem North Carolina
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 12, 2002
By the Enforcement Bureau, Norfolk Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that Truth Broadcasting Corp. (``Truth''), licensee of AM
radio station WTOB, Winston-Salem, North Carolina, and owner of
antenna structures used as part of station WTOB located at 36º
08' 53" North Latitude by 080º 19' 11" West Longitude, willfully
and repeatedly violated Sections 17.4(a), 73.49, and 73.1350(a)
of the Commission's Rules.1 Truth failed to register its antenna
structures, failed to enclose three of its antenna towers within
an effective locked fence or other enclosure, and failed to
operate in accordance with the terms of the station authorization
in that the station exceeded authorized field strength limits.
We conclude that Truth is apparently liable for forfeiture in the
amount of eleven thousand two hundred dollars ($11,200.00).
II. BACKGROUND
2. On January 22, 2002, in response to a complaint that
station WTOB operated with excessive power at night, an agent
from the FCC's Norfolk Resident Agent Office (``Norfolk Office'')
observed the antenna structures that Truth owned and used for its
AM broadcast station WTOB, Winston-Salem, North Carolina. The
agent noted that the structures were without posted registration.
The agent inspected the wooden base fencing around each tower and
observed numerous wooden fence boards either broken or missing on
three of the towers, allowing access to the tower bases. The
agent also measured field strength levels at two monitoring
points that exceeded by at least 15 percent the limits specified
in Truth's station authorization. On January 23, 2002, the agent
again inspected Truth's antenna structures and noted the same
conditions.
3. On January 24, 2002, the Norfolk Office agent visited
Truth's WTOB studio in Winston-Salem, North Carolina, and
interviewed WTOB's chief operator Allan Boaz and business manager
Forrest Richey. Neither Mr. Boaz nor Mr. Richey provided any
explanation of Truth's failure to register the antenna structures
or for the condition of the tower base fencing. In addition,
neither could recall when Truth had conducted a proof of
performance or field strength measurements for WTOB.
4. On January 31, 2002, the Norfolk Office released a
Notice of Violation to Truth citing, inter alia, violations of
Sections 17.4(a), 73.49 and 73.1350(a) of the Rules. Truth
replied to the Notice of Violation on February 26 and March 26,
2002, stating that Truth had since registered its antenna
structures, repaired the antenna base fencing and corrected
transmission problems to comply with field strength limits.
III. DISCUSSION
5. Section 17.4(a) of the Rules requires owners of
existing and proposed antenna structures that require notice to
the Federal Aviation Administration (``FAA'') to register their
structures. Truth's structures required notice to the FAA
because the structures exceeded 200 feet in height.2 From at
least January 22, 2002 to February 26, 2002, Truth's antenna
structures were unregistered.
6. Section 73.49 of the Rules requires licensees to
provide effective fencing or other enclosure around antenna
structures with radio frequency potential at the base. On
January 22 and 23, 2002, three of Truth's antenna towers used as
part of AM radio station WTOB, and energized with radio frequency
potential at their bases, were enclosed with wooden fences that
had numerous broken or missing boards allowing access to the
tower bases.
7. Section 73.1350(a) of the Rules requires licensees to
maintain station operation in a manner that ensures compliance
with technical rules and in accordance with the terms of its
station authorization. WTOB's station authorization limited
power by specifying field strength limits at various monitoring
points. On January 22 and 23, 2002, Truth operated WTOB with
excessive field strength at two of its assigned monitoring
points.
8. Based on the evidence before us, we find that Truth
willfully3 and repeatedly4 violated Sections 17.4(a), 73.49 and
73.1350(a) of the Rules by failing to register its antenna
structures from at least January 22 to February 26, 2002, failing
to maintain effective antenna tower base fencing on January 22
and 23, 2002, and exceeding authorized field strength limits on
January 22 and 23, 2002.
9. Pursuant to Section 1.80(b)(4) of the Rules, the base
forfeiture amounts for the noted violations are $7,000 for
failure to comply with AM fencing requirements, $4,000 for
failure to comply with power limits, and $3,000 for failing to
register an antenna structure (failure to file required forms or
information).5 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(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.6 In reply to the Notice of Violation, Truth stated,
``Truth's record as an FCC licensee is one of overall compliance
and, as such, any fine or forfeiture should be mitigated to
reflect Truth's good standing as a licensee.'' After considering
the entire record, including the lack of any history of prior
offenses by Truth, and applying the statutory factors listed
above, this case warrants a forfeiture adjusted downward from
$14,000 to $11,200.
IV. ORDERING CLAUSES
10. 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
Commission's Rules,8 Truth is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of eleven thousand two
hundred dollars ($11,200.00) for willful and repeated violation
of Sections 17.4(a), 73.49 and 73.1350(a) of the Rules.
11. 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, Truth 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 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 must note the
``FRN'' and the ``NAL/Acct. No.'' listed in the letterhead.
13. 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 the
``FRN'' and the ``NAL/Acct. No.'' listed in the letterhead.
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 (``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.
15. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, SW, Washington,
D.C. 20554.9
16. IT IS
FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY
shall be sent by Certified Mail Return Receipt Requested to Truth
Broadcasting Corp, 3789 Will Scarlet Road, Winston-Salem, North
Carolina 27104. An additional copy shall be sent to Truth
Broadcasting Corp. at 4405 Providence Lane Suite D, Winston-
Salem, North Carolina 27106.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Husnay
Resident Agent, Enforcement Bureau Truth Broadcasting Corp
3789 Will Scarlet Road
Winston-Salem NC 27104
Truth Broadcasting Corp
3789 Will Scarlet Road
Winston-Salem NC 27104
_________________________
1 47 C.F.R. §§ 17.4(a), 73.49, & 73.1350(a).
2 See 47 C.F.R. § 17.7(a).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally 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).
4 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. §
312(f)(2).
5 47 C.F.R. § 1.80(b)(4).
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.