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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
WWC License L.L.C. ) NAL/Acct. No. 20013280-0003
) EB-01-DV-034
Licensee of Public Mobile )
Services Station )
Call Sign KNKA731
Rapid City, South Dakota
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October
29, 2001
By the District Director, Denver Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL")
we find that WWC License L.L.C. ("WWC"), has apparently violated
Section 503(b) of the Communications Act of 1934, as amended
(``Act'')1 and has apparently willfully and repeatedly violated
Section 22.371(b) of the Commission's Rules (the "Rules") by failing
to notify directional AM radio station licensees of cellular tower
construction within 3 kilometers (1.9 miles) of the directional AM
stations' antenna arrays. We conclude that WWC is apparently liable
for forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. The Commission has established requirements that Public
Mobile Service licensees must notify the licensees of certain AM
broadcast stations in advance of planned tower construction or
modification. The Public Mobile Service licensee is also responsible
for installing and maintaining necessary detuning apparatus to correct
disturbances of the authorized AM station antenna pattern that occur
as a result of tower construction or modification.
3. On October 30, 2000, the Denver Office received a complaint
regarding construction of a cellular radio tower in Rapid City, South
Dakota, within 3 kilometers (1.9 miles) of the antenna array of
directional AM broadcast stations KKLS and KOTA. The licensee of
station KKLS, is Monterey Licenses, LLC, serving Rapid City, South
Dakota. The licensee of KOTA, is Duhamel Broadcasting Enterprises,
serving Rapid City, South Dakota. Both stations are authorized to use
directional antenna arrays. KKLS's antenna array is located at N44-
03-43, W103-10-32 and KOTA's antenna array is located at N44-02-00,
W103-11-15. The FCC's Universal Licensing Database revealed that
WWC's public mobile station KNKA731 serves Cellular Market CMA289,
Rapid City, South Dakota, and the cellular tower constructed near the
coordinates of N44-03-11, W103-10-49 in October and November of 2000
was a fill-in transmit antenna site.
4. On November 16, 2000, Agent Jon Sprague of the FCC's Denver
Office placed a telephone call to Gene DeJordy, Esq., Vice President
of Regulatory Affairs with WWC, regarding the tower construction. Mr.
DeJordy indicated he would research the problem and advise the Denver
Office of his findings. On November 17, 2000, Mr. DeJordy faxed a
copy of his findings to the Denver Office. Mr. DeJordy's report
states that inaccuracies existed in the database used by WWC to
identify the required directional AM stations pursuant to Section
22.371(b). Mr. DeJordy acknowledged that WWC apparently failed to
notify, in advance of tower construction, the two licensees of
directional AM radio stations located within 3 kilometers (1.9 miles)
of the specified cellular radio tower.
5. The Denver Office issued an Official Notice of Violation
("NOV") on February 6, 2001. In a February 23, 2001 response, WWC
stated that it was unable to confirm that either AM station licensee
was notified. WWC also identified the specific actions taken to
correct the violations noted in the NOV and to preclude their
recurrence. WWC 's counsel indicated WWC License has a long history
of compliance with the Commission's rules, and regularly notifies AM
station licensees that may be affected by tower construction prior to
commencing construction. WWC stated that it would expand its training
program for its site acquisition personnel and implement internal
quality reviews to ensure compliance with the Commission's Rules
regarding notification of AM station licensees.
III. DISCUSSION
6. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the terms
and conditions of any license, or fails to comply with any of the
provisions of the Act or of any rule, regulation or order issued by
the Commission thereunder, shall be liable for a forfeiture penalty.
The term ``willfull'' as used in Section 503(b) has been interpreted
to mean simply that the acts or omissions are committed knowingly.2
It is not pertinent whether or not the licensee's act or omissions are
intended to violate the law. Forfeitures assessed pursuant to Section
503(b)(2) of the Act are determined in accordance with the
Commission's forfeiture guidelines set forth in Section 1.80(b)(4) of
the Commission's Rules and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines (``Forfeiture Policy Statement).3
7. The Commission's Rules clearly state that if tower
construction or modification is planned within 3 kilometers (1.9
miles) of a directional AM broadcast station array, the Public Mobile
Service licensee must notify the licensee of the AM broadcast station
in advance of the planned construction or modification.4 Based on the
evidence before us, we find that WWC willfully and repeatedly violated
Section 22.371(b) of the Commission's Rules by failing to notify two
directional AM radio station licensees in advance of cellular tower
construction within 3 kilometers of the AM stations' directional
antenna arrays.
8. The Forfeiture Policy Statement and Section 1.80 of the
Commission's Rules set the base forfeiture amount for violation of
rules relating to construction or operation at an unauthorized
location at $4,000.5 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 Act, which include the nature, circumstances,
extent, and gravity of the violations(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.
Applying the Forfeiture Policy Statement and statutory factors to the
instant case, a $4,000 forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of
the Communications Act of 1934, as amended, and Sections 0.111, 0.311
and 1.80 of the Commission's Rules, WWC License L.L.C., is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for repeated violation of 22.371(b) of
the Commission's Rules.
10. IT IS FURTHER ORDERED, PURSUANT TO Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, WWC License L.L.C., SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
11. 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. 20013280-0003.
12. A response regarding this matter, if any, must be mailed to
Federal Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C. 20554,
and MUST INCLUDE THE NAL/Acct. No. 20013280-0003.
13. 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.
14. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to: Chief,
Revenue and Receivable Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.6
15. IT IS FURTHER ORDERED THAT a copy of this
NOTICE OF APPARENT LIABILITY shall be sent, by Certified Mail/Return
Receipt Requested, No. P 028 897 017 to WWC License L.L.C., 3650 131st
Avenue, S.E., Suite 400, Bellevue, Washington 98006.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
_________________________
1 47 U.S.C. § 503(b).
2 Southern California Broadcasting Company, 6 FCC Rcd 4387, para. 5
(1991).
3 47 U.S.C. §503(b)(2), 47 C.F.R. §1.80(b)(4). See also The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate Forfeiture Guidelines, 12 FCC Rcd 17087,
recon. denied, 15 FCC Rcd 303(1999) ("Forfeiture Policy Statement").
4 47 C.F.R. §22.371(b).
5 47 C.F.R. §1.80(b)(4).
6 See 47 C.F.R. §1.1914.