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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Fenix Broadcasting, Corp. ) File No. EB-02-TP-
207
WWFE, 670 kHz ) NAL/Acct. No.: 200232700008
Miami, Florida ) FRN: 0006-1648-67
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 7, 2002
By the Enforcement Bureau, Tampa Office:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture, we
find that Fenix Broadcasting Corp. (``Fenix''), licensee of
WWFE(AM) in Miami, Florida, apparently violated the following
Sections of the Federal Communications Commission's (``FCC'')
Rules: 11.35(a) (failure to have operational Emergency Alert
System (``EAS'') equipment); 17.51 (failure to exhibit tower
lights from sunset to sunrise);and 73.49 (failure to enclose
antenna towers having radio frequency potential at the base
within effective locked enclosures).1``'' We conclude that Fenix
is apparently liable for a forfeiture in the amount of twenty one
thousand dollars ($21,000).
II. Background
2. On March 28, 2002, agents from the FCC Enforcement
Bureau's Miami and Tampa Offices inspected radio station WWFE in
Miami, Florida. The agents found the EAS equipment mounted in an
equipment rack at the studio but the equipment was not
operational. A review of the station logs showed no evidence
that WWFE had ever conducted any type of EAS tests, nor did the
logs have any entry regarding the operation or repair of the EAS
equipment.
3. Still on March 28, 2002, the agents inspected
the WWFE transmitter site and antenna tower array in Miami,
Florida. None of the six AM antenna towers was enclosed within
an effective locked fence or other enclosure. A perimeter fence
did surround a portion of the transmitter site containing the
towers, however, the fence did not enclose the area in the front
of the property, thus allowing unimpeded access to the tower
bases.
4. Still on March 28, 2002, after sunset, the agents
returned to the tower site and observed only one of the six
towers properly lighted. A review of the station logs during the
inspection earlier in the day revealed no entry of any light
outage or lighting system problem. Also, the station owners
stated during the inspection that they had experienced no
problems with the tower lighting system or automatic alarm
system. The agents contacted the local Federal Aviation
Administration Flight Service Station and determined that no one
reported a tower light outage for any of WWFE's towers.
II. Discussion
5. Section 11.35(a) of the Rules requires broadcast
stations to ensure that EAS equipment is installed so that the
monitoring and transmitting functions are available during the
times the station is in operation.2 At the time of inspection,
the EAS equipment was not operational. The station logs showed
no evidence that the equipment had been taken out of service for
repair nor that tests had ever been made.
6. Section 17.51 requires tower lighting be exhibited from
sunset to sunrise.3 Fenix failed to exhibit the required lights
on the WWFE towers after sunset on March 28, 2002.
7. Section 73.49 requires that antenna towers that have
radio frequency potential at the base be enclosed within
effective locked fences or other enclosures.4 WWFE's antenna
tower array was not securely enclosed thus allowing unimpeded
access by the general public to the tower bases.
8. Based on the evidence before us, we find that on March
28, 2002, Fenix willfully5 violated Sections 11.35(a), 17.51 and
73.49 of the Rules6 by failing to provide operational EAS
equipment, failing to light its towers between sunset and
sunrise, and failing to enclose towers with an effective locked
enclosure.
9. Pursuant to Section 1.80(b)(4) of the Rules, the base
forfeiture amounts for the violations cited in this Notice are:
$8,000 for non-operational EAS equipment; $10,000 for failure to
comply with prescribed tower lighting; and $7,000 for failure to
enclose antenna tower bases.7 Section 503(b)(2)(D) of the Act
requires the Commission to consider ``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 such other matters as justice may
require.''8``'' Regarding the EAS violation, because WWFE shared
EAS equipment with co-located station WRHC(AM), a downward
adjustment of the forfeiture amount to $4,000 for the EAS
violation is warranted. Considering the entire record and
applying the statutory factors listed above, this case warrants a
$21,000 forfeiture.
IV. Ordering Clauses
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act9 and Sections 0.111, 0.311 and 1.80 of the
Rules,10 Fenix is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of $21,000 for willful violation of
Sections 11.35(a), 17.51 , and 73.49 of the Commission's
Rules.11
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules,12 within thirty days of the release of
this NOTICE OF APPARENT LIABILITY, Fenix 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 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 NAL/Acct. No. referenced in the letterhead above.
13. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, D.C. 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and must include the FRN and
NAL/Acct. No. referenced in the letterhead above.
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. 20554.13
16. IT IS FURTHER ORDERED THAT this notice shall be sent,
by certified mail, return receipt requested, to Fenix
Broadcasting, Corp., 330 S.W. 27th Avenue #207, Miami, Florida
33135.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
_________________________
1 47 C.F.R. §§ 11.35(a), 17.51, and 73.49
2 47 C.F.R. § 11.35(a)
3 47 C.F.R. § 17.51
4 47 C.F.R. § 73.49
5 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).
6 47 C.F.R. § 11.35(a), 17.51, and 73.49
7 47 C.F.R. § 1.80(b)(4)
8 47 U.S.C. §503(b)(2)(D)
9 47 U.S.C. § 503(b)
10 47 C.F.R. §§ 0.111, 0.311, and 1.80.
11 47 C.F.R. §§ 11.35(a), 17.51, and 73.49
12 47 C.F.R. § 1.80
13 See 47 C.F.R. § 1.1914