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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
J & W Promotions, Inc. )
) File Number EB-02-AT-277
Licensee of AM Radio Station )
WAPZ, Wetumpka, Alabama, and ) NAL/Acct.No. 200232480016
Owner of Unregistered Antenna )
Structure Located at 32° 29' ) FRN 0007-4715-50
06'' N Latitude by 086° 12' )
25'' W Longitude )
Wetumpka, Alabama )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 28, 2002
By the Enforcement Bureau, Atlanta Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find J & W Promotions, Inc., licensee of AM radio
station WAPZ, Wetumpka, Alabama, and owner of unregistered
antenna structure located at 32° 29' 06'' North latitude by 086°
12' 25'' West longitude in Wetumpka, Alabama, apparently liable
for a forfeiture in the amount of eighteen thousand dollars
($18,000) for willful violation of Sections 11.35(a), 17.4(a),
and 73.49 of the Commission's Rules (``Rules'').1 Specifically,
we find J & W Promotions, Inc. apparently liable for failing to
ensure Emergency Alert System (``EAS'') equipment was installed
and operational, failing to register their antenna structure with
the Commission, and failing to maintain an effective locked fence
around the base of the antenna structure.
II. BACKGROUND
2. On July 25, 2002, an agent from the FCC Enforcement
Bureau's Atlanta Field Office inspected station WAPZ's antenna
structure located at 32° 29' 06'' North latitude by 086° 12' 25''
West longitude near Wetumpka, Alabama. No Antenna Structure
Registration (``ASR'') number was observed anywhere near the base
of the structure.
3. Still on July 25, 2002, the agent inspected radio
station WAPZ in Wetumpka, Alabama accompanied by the CEO of the
station, Mr. Robert Henderson. At the time of the inspection,
the station did not have EAS equipment installed or operational.
There were no station logs that would indicate the EAS equipment
had been removed for repairs or that there had ever been
operational EAS equipment used at the station. Additionally, Mr.
Henderson confirmed that the antenna structure was owned by the
licensee. Mr. Henderson stated that he believed that the
structure was properly registered, but could provide no
documentation to support this claim. Also during this
inspection, the agent found the base fencing enclosing the
station's AM antenna tower to be deficient in that the top board
of the fencing was missing allowing access to the base of the
tower. This tower had radio frequency potential at its base.
4. On July 29, 2002, the agent conducted a search of the
Commission's ASR database and found that the antenna structure
for station WAPZ had not been registered, and no applications
filed to register the structure.
III. DISCUSSION
5. Section 11.35(a) of the Rules sets forth that broadcast
stations are responsible for ensuring that EAS encoders, EAS
decoders and Attention Signal generating and receiving equipment
used as part of the EAS are installed so that the monitoring and
transmitting functions are available during the times the
stations are in operation. On July 25, 2002, there was no
installed EAS equipment at the studios of WAPZ. In addition,
there were no station logs that would indicate the EAS equipment
had been removed for repairs or that there had ever been
operational EAS equipment used at the station.2
6. Section 17.4(a) of the Rules states that, ``[e]ffective
July 1, 1996, the owner of any proposed or existing antenna
structure that requires notice of proposed construction to the
Federal Aviation Administration (``FAA'') must register the
structure with the Commission.'' Mr. Henderson stated that J & W
Promotions, Inc. owned the antenna structure used as part of
radio station WAPZ. This structure required notice to the FAA,
and thus required registration with the Commission, because the
structure height was 300 feet.3 There were no Commission records
indicating that this structure was registered.
7. Section 73.49 of the Rules requires antenna towers
having radio frequency potential at the base (series fed, folded
unipole, and insulated base antennas) must be enclosed within
effective locked fences. On July 25, 2002, the agent found that
the top horizontal plank on the tower fence was not in place,
allowing unrestricted access to the base of the tower.
8. Based on the evidence before us, we find J & W
Promotions, Inc., willfully4 violated Sections 11.35(a), 17.4(a),
and 73.49 of the Rules by failing to ensure that EAS equipment
was installed and operational at WAPZ, by failing to register
WAPZ's antenna structure with the Commission, and by failing to
maintain an effective locked fence enclosing its antenna tower.
9. Pursuant to Section 1.80(b)(4) of the Rules,5 the base
forfeiture amount for EAS equipment not installed or operational
is $8,000, the base forfeiture amount for failing to register its
antenna structure (failure to file required forms or information)
is $3,000, and the base forfeiture amount for failing to maintain
effective locked AM tower fencing is $7,000. 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 an $18,000
forfeiture.
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
Rules,8 J & W Promotions, Inc., is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of eighteen
thousand dollars ($18,000) for willful violation of Sections
11.35(a), 17.4(a), and 73.49 of the Rules by failing to ensure
that EAS equipment was installed and operational at station WAPZ,
failing to register WAPZ's antenna structure with the Commission,
and failing to maintain effective AM tower fencing around the
base of the antenna structure for WAPZ.
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL, J
& W Promotions, 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 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 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
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
NAL/Acct. No. referenced 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. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to J & W Promotions, Inc., 2821 U.S. Hwy 231. Wetumpka, Alabama,
36092.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
District Director, Atlanta Office
Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35(a), 17.4(a), and 73.49.
2 EAS activations and tests, failures to receive such tests, and
EAS equipment malfunctions must be recorded in the station log.
See 47 C.F.R. §§ 11.35(a)-(b), 11.55(c)(7) and 11.61(b).
3 See 47 C.F.R. § 17.7(a).
4 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).
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.