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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-CG-104
)
Cornbelt Broadcasting Co. ) NAL/Acct. No.
200232320006
Licensee: WHOW and WHOW-FM )
Clinton, Illinois ) FRN: 0003-7736-94
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 18, 2002
1. By the District Director, Chicago Office, Enforcement
Bureau:
I. INTRODUCTION
2. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Cornbelt Broadcasting Co. (``Cornbelt''),
licensee of AM broadcast station WHOW and FM broadcast station
WHOW-FM, has apparently violated sections 11.35(a), 17.4(g), and
73.49 of the Commission Rules (the ``Rules'')1. Cornbelt failed
to have an operational Emergency Alert System (``EAS'') decoder;
failed to display the Antenna Structure Registration (``ASR'')
number, and failed to comply with AM tower base fencing
requirements. We conclude that Cornbelt is apparently liable for
a forfeiture in the amount of seventeen thousand dollars
($17,000).
II. BACKGROUND
3. On February 25, 2001, the Commission received a
complaint alleging Radio Stations WHOW and WHOW-FM were operating
in violation of various FCC Rules.
4. On April 25, 2001, an engineer from the Commission's
Chicago Office inspected broadcast stations WHOW and WHOW-FM, and
observed the following violations:
(a. The stations' EAS equipment was not operational.
Further, station personnel failed to make entries in
the stations' logs indicating the cause of failure to
receive EAS tests and activations.
(b. The ASR number was not posted.
(c. Radio station WHOW failed to enclose the base of the
tower with adequate fencing. The front and back doors
to the antenna's tuning hut were not attached,
permitting unrestricted access to the tower.
5.
6. Some of the other violations noted during the
inspections of WHOW and WHOW-FM were that:
(d. The stations failed to have a letter designating the
chief operator.
(e. The stations failed to have the manual titled ``The
Public and Broadcasting'' in the public inspection
file.
(f. The stations failed to have the current issues and
programs list in the public inspection
file. The latest issues and programs list available
was for the third quarter of 1990.
(g. WHOW did not have equipment performance measurements
for the years 1999 and 2000.
7. On May 7, 2001, the Chicago Office issued Notices of
Violation to Cornbelt Broadcasting Co., licensee of WHOW and
WHOW-FM. The Notices cited Cornbelt for failure to have an
operational EAS decoder, failure to post the ASR number, failure
to enclose the base of the tower with adequate fencing, failure
to calculate power by the direct method, failure to designate a
chief operator, failure to have the most recent ownership report,
failure to the current manual titled ``The Public and
Broadcasting'', failure to have the current issues and programs
list, failure to determine the FM transmitter efficiency factor,
failure to notify the Commission of the operation at reduced
power, failure to have equipment performance measurements.2
Cornbelt failed to respond to the Notices.
8. On February 27, 2002, an engineer from the Commission's
Chicago Office inspected broadcast stations WHOW and WHOW-FM, and
observed the following violations:
(h. The stations' EAS equipment was not operational.
Further, station personnel failed to make entries in
the stations' logs indicating the cause of their
failure to receive EAS tests and activations.
(i. The ASR number was not posted at the base of the tower.
(j. Cornbelt failed to enclose the base of the WHOW tower
with adequate fencing. The front and back doors to the
antenna's tuning hut were not attached, permitting
unrestricted access to the tower. Further, the chain-
link fence around the tower had fallen over.
9. Other violations noted during the inspections on
February 27, 2002 of WHOW and WHOW-FM were:
(k. Radio station WHOW did not have equipment performance
measurements for the years 2000 and 2001.
(l. The stations did not have a copy of the EAS Operating
Handbook at the normal duty position.
(m. The stations did not have a letter designating the
chief operator.
(n. The stations did not have a copy of the manual ``Public
and Broadcasting'' in the public file.
(o. The stations did not have a current list of issues and
programs that have provided the stations' most
significant treatment of community interest in the
public file. The most recent issues and programs list
available was from 1995.
III. DISCUSSION
10. Section 11.35(b) of the Rules requires that broadcast
stations have EAS equipment installed and operational at all
times the station is in operation. Additionally, broadcast
stations must determine the cause of any failure to receive the
required EAS tests or activations and make appropriate entries in
the broadcast station log. Section 17.4(g) of the Rules requires
the antenna structure registration number to be displayed in a
conspicuous place so that it is readily visible near the base of
the antenna structure. Section 73.49 of the Rules requires that
licensees enclose any AM tower with radio frequency potential at
the base within an effective locked fence or other enclosure.
11. The Commission assesses monetary forfeitures pursuant
to Section 503(b) of the Communications Act of 1934, as amended,
(the ``Act'') as implemented in Section 1.80 of the Rules3. A
forfeiture may be assessed against a person who the Commission
finds to have willfully4 or repeatedly5 failed to comply with the
provisions of the Act or the Rules. Forfeiture amounts are
decided in accordance with Section 503(b)(2) of the Act6 and the
Commission's forfeiture guidelines in Section 1.80(b)(4) of the
Rules7.
12. Based on the evidence before us, we find that Cornbelt
Broadcasting Co. willfully and repeatedly violated Sections
11.35(b), 17.4(g), and 73.49 of the Rules by failing to have a
functioning EAS system, failing to display the registration
number near the base of the antenna and failing to provide
adequate AM tower fencing. Pursuant to The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997), recon. denied, 15 FCC Rcd 303(1999) (``Forfeiture
Policy Statement'')8, the base forfeiture amount for failing to
have operational EAS equipment is $8,000. The base forfeiture
amount for inadequate AM tower fencing is $7,000. The Forfeiture
Policy Statement does not establish a base forfeiture amount for
failure to post the antenna structure registration number. The
Commission has determined, however, that an appropriate base
forfeiture amount for failure to post the ASR number is $2,000
per violation9. In assessing the monetary forfeiture amount, we
must take into account the statutory factors set forth in Section
503(b)(2)(D) of the Act,10 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. Applying the Policy Statement and the
statutory factors to the instant case and applying the inflation
adjustments, we believe that a seventeen thousand dollars
($17,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act11 and Sections 0.111, 0.311, and 1.80 of the
Rules12, Cornbelt Broadcasting Co. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of seventeen
thousand dollars ($17,000) for willfully and repeatedly violating
Sections 11.35(b), 17.4(g), and 73.49 of the Rules.
14. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Cornbelt Broadcasting Co. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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. 200232320006 and FRN 0003-7736-94.
16. The response, 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. 200232320006 and FRN
0003-7736-94.
17. 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.
18. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.13
19. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Cornbelt Broadcasting Co., RR2 Box 117M,
Clinton, Illinois 61727-9518.
20.
21.
FEDERAL COMMUNICATIONS COMMISSION
22.
23.
24.
G. Michael Moffitt
District Director
Chicago Office
_________________________
1 47 C.F.R. §§ 11.35(a), 17.4(g), and 73.49.
2 47 C.F.R. §§ 73.51, 73.1870(a), 73.3526(e)(5), 73.3526(e)(8),
73.3526(e)(73.51(e)(2), 73.1560(d), and 73.1590(a)(6)
3 47 C.F.R. § 1.80.
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies 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).
5 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he 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.
6
47 C.F.R. § 503(b)(2).
7
C.F.R. § 1.80(b)(4).
8
47 C.F.R. § 1.80.
9 See American Tower Corporation, 16 FCC Rcd 1282 (2001).
10 47 U.S.C. § 503(b)(2)(D).
11 47 U.S.C. § 503(b).
12 47 C.F.R. §§ 0.111, 0.311 and 1.80.
13 See 47 C.F.R. § 1.1914.