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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-DT-1240
WSJM, Inc. )
Radio Station WGMY ) NAL/Acct. No.
200332360005
South Haven, Michigan )
) FRN: 0007 1714 32
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 17,
2003
By the District Director, Detroit Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that WSJM, Inc., (?WSJM?), licensee of radio
station WGMY, South Haven, Michigan, has apparently violated
Sections 11.52(d), 11.61(a)(2)(i)(A), 17.4(a), 17.47(a)(1),
17.51(a), 73.1820(a)(1)(i), 73.1820(a)(1)(iii), and 73.1870(c)(3)
of the Commission's Rules (?Rules?)1. Respectively, these sections
require that the station monitor two EAS sources specified in the
State EAS Plan; conduct tests of the EAS header and EOM codes at
least once a week at random days and times; register the two
antenna structures; observe the antenna structure's lights at
least once each 24 hours either visually or by observing an
automatic indicator to insure that all lights are functioning
properly; exhibit all red obstruction lighting from sunset to
sunrise; make log entries concerning any observed or otherwise
known extinguishment or improper functioning of a tower light;
make entries of each test and activation of the Emergency Alert
System (EAS); and make log entries concerning the Chief
operator's review of the station records at least once each week.
We conclude that WSJM is apparently liable for a forfeiture in
the amount of nineteen thousand dollars ($19,000).
II. BACKGROUND
2. On September 23, 2002, the Detroit Office received
information indicating that the two top flashing obstruction
lights on each of two antenna structures and the side lights on
one of the two antenna structures located at the corner of Wells
and Dunkey Streets in South Haven, Michigan were not operating
for two months. A search of the Antenna Structure Registration
database did not contain any registered structures in the area
reported. A check of the AM broadcast band database showed that
a two tower directional license was assigned to WSJM, Inc. The
South Haven Police department was contacted and requested to
observe the tower lights after sunset to determine if the
complaint was still valid.
3. On September 24, 2002, the Detroit Office received a
telephonic report from the South Haven Police department
confirming the tower light outages. An agent contacted the FAA,
who subsequently notified WSJM, Inc. of the tower light outage
report and then issued a Notice to Airmen (NOTAM).
4. On November 20, 2002, agents from the Detroit Office
conducted an inspection of WGMY's antenna structures. No Antenna
Structure Registration Numbers were posted and all required
structure lighting was operational. On November 21, 2002, the
agents inspected WGMY with studios located at 510 Williams
Street, South Haven, Michigan and at the main office located at
580 E. Napier, Benton Harbor, Michigan.
5. As a result of the inspection of WGMY, the agents found
several violations of FCC Rules, including failure to maintain a
copy of the Emergency Alert System (EAS) Operating Handbook,
failure to monitor two EAS sources specified in the State EAS
Plan; failure to conduct tests of the EAS header and EOM codes at
least once a week at random days and times for seven weeks during
the period of September 1, 2002 to November 2, 2002; failure to
register the two antenna structures; failure to observe the
antenna structure's lights at least once each 24 hours either
visually or by observing an automatic indicator to insure that
all lights are functioning properly from at least September 18,
2002 to September 24, 2002; failure to report the tower light
outages and repairs to the Federal Aviation Administration from
at least September 18, 2002 to November 21, 2002; failure to
exhibit all red obstruction lighting from sunset to sunrise from
at least September 18, 2002 to September 24, 2002; failure to
make log entries concerning any observed or otherwise known
extinguishment or improper functioning of a tower light from at
least September 18, 2002 to September 24, 2002; failure to make
entries of each test and activation of the Emergency Alert System
(EAS) for four weeks for the local primary station and eleven
weeks for the alternate local primary station during the period
of September 1, 2002 to November 21, 2002; and failure to make
log entries concerning the chief operator's review of the station
records at least once each week.
6. On December 5, 2002, the FCC's Detroit Office issued a
Notice of Violation to WGMY for the FCC Rule violations.
7. On December 16, 2002, the FCC's Detroit Office received
a reply dated December 13, 2002 indicating the corrective steps
instituted by WSJM, Inc.
III. DISCUSSION
8. Section 11.52(d) requires that the station monitor two
EAS sources specified in the State EAS Plan. Section
11.61(a)(2)(i)(A) requires that the station conduct tests of the
EAS header and EOM codes at least once a week at random days and
times. Section 17.4(a) requires that antenna structures that
have been assigned painting or lighting requirements be
registered with the Commission. Section 17.47(a)(1) requires
that antenna structures which have been assigned lighting
specifications shall make an observation of the antenna
structure's lights at least once each 24 hours either visually or
by observing an automatic properly maintained indicator designed
to register any failure of such lights. Section 17.51(a)
requires that all red obstruction lighting be exhibited from
sunset to sunrise. Section 73.1820(a)(1)(i) requires that log
entries be made of any observed or otherwise known extinguishment
or improper functioning of a tower light. Section
73.1820(a)(1)(iii) requires that log entries be made of each test
and activation of the Emergency Alert System (EAS). Section
73.1870(c)(3) requires that the chief operator make log entries
concerning the review of the station records at least once each
week.
9. Based on the evidence before us, we find that WSJM
willfully1 and repeatedly2 violated Sections 73.1820(a)(1)(i),
73.1820(a)(1)(iii) and 73.1870(c)(3) for failure to maintain
required records; Sections 11.52(d), 11.61(a)(2)(i)(A), and
17.47(a)(1) for failure to make required measurements or conduct
required monitoring regarding EAS monitoring sources, EAS tests,
and observation of the antenna structure's lights; Sections
17.4(a) for failure to file required forms or information
regarding the registration of the two antenna structures; and
Section 17.51(a) for failure to comply with prescribed lighting
and/or marking. 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?)3, sets
the base forfeiture amount at $1,000 for failing to maintain
required records, $2,000 for failure to make required
measurements or conduct required monitoring, $3,000 each (two
towers) for failure to file required forms or information for the
two antenna structures and $10,000 for failure to comply with
prescribed lighting and/or marking. In assessing the monetary
forfeiture amount, we must take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Communications
Act of 1934,4 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. The record reveals that WSJM has a history
of compliance. Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the inflation
adjustments, we believe that a nineteen thousand dollar ($19,000)
monetary forfeiture is warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act5 and Sections 0.111, 0.311 and 1.80 of the
Rules6, WSJM, Inc. is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of nineteen thousand dollars
($19,000) for willful and repeated violation of 11.52(d),
11.61(a)(2)(i)(A), 17.4(a), 17.47(a)(1), 17.51(a),
73.1820(a)(1)(i), 73.1820(a)(1)(iii), and 73.1870(c)(3) of the
Rules.
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty (30) days of the release
date of this NOTICE OF APPARENT LIABILITY, WSJM, 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. 200332360005, FRN: 0007 1714 32.
13. 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. 200332360005, FRN: 0007
1714 32.
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, S.W., Washington,
D.C. 20554.7
16. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical and Public Safety
Division, Enforcement Bureau, Federal Communications Commission,
445 12th Street S.W., Washington, D.C. 20554. Your certification
should indicate whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the list
provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this Notice of
Apparent Liability. This information will be used for tracking
purposes only. Your response or failure to respond to this
question will have no effect on your rights and responsibilities
pursuant to Section 503(b) of the Communications Act. If you
have any questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990.
17. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail, Return Receipt
Requested, to WSJM, Inc., P.O. Box 107, St. Joseph, Michigan
49085.
FEDERAL COMMUNICATIONS
COMMISSION
James A. Bridgewater
District Director
Detroit Office
Attachment A - FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. §§ 11.52(d), 11.61(a)(2)(i)(A), 17.4(a), 17.47(a)(1),
17.51(a), 73.1820(a)(1)(i), 73.1820(a)(1)(iii), and
73.1870(c)(3).
1 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).
2 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.
347 C.F.R. § 1.80.
4 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, and 0.311.
7 See 47 C.F.R. § 1.1914.