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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-02-PA-
273
)
Pentecostal Temple Development Corporation ) NAL/Acct.
No. 200332400010
AM Broadcast Station WGBN )
Pittsburgh, Pennsylvania ) FRN: 0008 2535 44
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 28, 2003
By the District Director, Philadelphia Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Pentecostal Temple Development Corporation
(``Pentecostal''), the licensee of AM broadcast station WGBN, has
apparently violated Sections 11.35(a), 11.61(a)(1)(v), and
11.61(a)(2)(i)(A) of the Commission's Rules (the ``Rules'')1.
These sections respectively require that a broadcast station make
entries in the station logs indicating the reason why it failed
to receive an Emergency Alert System (``EAS'') test and that
broadcast stations conduct Required Monthly Tests (``RMT'') and
Required Weekly Tests (``RWT'') of the EAS equipment. We conclude
that Pentecostal is apparently liable for a forfeiture in the
amount of three thousand dollars ($3,000).
II. BACKGROUND
2. On July 17, 2002, an FCC agent from the Philadelphia
Office conducted an inspection of the EAS equipment at radio
station WGBN, New Kensington, Pennsylvania. During the
inspection, the agent found that Pentecostal failed to receive a
RWT from broadcast station WQED between May 2, 2002 and July 17,
2002. Pentecostal made no entries in the WGBN station logs
indicating the reasons why it failed to receive the RWT from WQED
during this period. The agent also found that Pentecostal failed
to transmit a RMT on station WGBN during the months of April
2002, May 2002, and June 2002 and failed to transmit a RWT on
station WGBN between April 14, 2002 and July 16, 2002.
3. On July 24, 2002, the Philadelphia Office issued a
Notice of Violation to Pentecostal for failure to make entries in
the WGBN station logs indicating the reasons why it did not
receive a RWT from WQED between May 2, 2002 and July 17, 2002, in
violation of Section 11.35(a) of the Rules; failure to transmit a
RMT on station WGBN between May 1, 2002 and July 17, 2002, in
violation of Section 11.61(a)(1)(v) of the Rules; and failure to
transmit a RWT on station WGBN between April 14, 2002 and July
16, 2002, in violation of Section 11.61(a)(2)(i)(A) of the Rules.
Pentecostal submitted a response dated August 5, 2002, to the
Philadelphia Office addressing the Notice of Violation. In the
response, Pentecostal acknowledged the violations and listed the
corrective measures taken to prevent a reoccurrence. Pentecostal
stated that it checked the EAS receivers and tuned them for
proper monitoring stations and implemented a new EAS Procedure
Sheet. Pentecostal also stated that it would train the staff
about EAS operations on a quarterly basis and would more closely
monitor the RMT and RWT.
4. On December 3, 2002, an agent re-inspected station WGBN
to determine if Pentecostal corrected all the violations. During
the inspection, the agent found that Pentecostal failed to
receive a RWT from station WQED between July 18, 2002 and
September 28, 2002, between October 6, 2002 and November 9, 2002
and between November 24, 2002 and December 3, 2002. Pentecostal
failed to make entries in the WGBN station logs indicating the
reasons why it failed to receive the RWT from WQED during these
periods. The agent also found that Pentecostal failed to transmit
a RMT on station WGBN during the months of October 2002 and
November 2002 and failed to transmit a RWT on station WGBN
between August 4, 2002 and August 17, 2002, between October 13,
2002 and October 26, 2002 and between November 17, 2002 and
December 3, 2002. Pentecostal had not implemented the corrective
EAS measures they stated in their reply to the July 24, 2002
Notice of Violation.
III. DISCUSSION
5. Section 11.35(a) of the Rules states 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 and systems are in operation. Additionally, broadcast
stations must determine the cause of any failure to receive
required tests or activations specified in Sections 11.61(a)(1)
and (2). Appropriate entries must be made in the broadcast
station log as specified in Sections 73.1820 and 73.1840 of this
chapter indicating the reasons why any tests were not received.2
Between May 2, 2002 and September 28, 2002, between October 6,
2002 and November 9, 2002, between November 24, 2002 and December
3, 2002, Pentecostal failed to receive a RWT from broadcast
station WQED. Pentecostal failed to make entries in the WGBN
station logs indicating the reasons why it did not receive the
RWT from WQED during those periods.
6. Section 11.61(a)(1)(v) of the Rules states that
effective January 1, 1997, broadcast stations shall conduct tests
of the EAS header codes, Attention Signal, Test Script and End of
Message codes once a month. The RMT which shall occur in odd
numbered months between 8:30 a.m. and local sunset while the RMT
in even numbered months shall occur between local sunset and 8:30
a.m. The tests will originate from EAS Local or State Primary
Sources. Broadcast stations must transmit these monthly tests
within 60 minutes of receipt. Station logs show that Pentecostal
failed to transmit a RMT on station WGBN during the months of
April 2002, May 2002, June 2002, July 2002, October 2002 and
November 2002.
7. Section 11.61(a)(2)(i)(A) of the Rules states that
effective January 1, 1997, broadcast stations shall conduct tests
of the EAS Header Codes and End of Message Codes at least once a
week at random days and times. Station logs show that
Pentecostal failed to transmit a RWT on station WGBN between
April 14, 2002 and July 16, 2002, between August 4, 2002 and
August 17, 2002, between October 13, 2002 and October 26, 2002,
between November 17, 2002 and December 3, 2002.
8. Based on the evidence before us, we find that
Pentecostal willfully3 and repeatedly4 violated Sections
11.61(a)(1)(v), and 11.61(a)(2)(i)(A) of the Rules. The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporated the Forfeiture Guidelines, 12
FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303(1999)
(``Forfeiture Policy Statement''),5 sets the base forfeiture
amount for failure to maintain required records at one thousand
dollars ($1,000). The Rules do not establish a base forfeiture
amount for violating the Commission's rules requiring EAS tests.
Therefore, we must determine an appropriate forfeiture amount for
this violation. The requirement that broadcast stations conduct
EAS tests is similar in both nature and severity to other
required operational performance checks identified in the Rules
as required measurements or required monitoring. Section
1.80(b)(4) of the Rules sets the base forfeiture amount at two
thousand dollars ($2,000) for failure to make required
measurements or conduct required monitoring. Therefore, we will
assess the base forfeiture for failing to conduct EAS tests in
the amount of two thousand dollars ($2,000). 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 1934,6 (the ``Act''), as amended, 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
Forfeiture Policy Statement and the statutory factors to the
instant case and applying the inflation adjustments, we believe
that a three thousand dollar ($3,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended7, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules8,
Pentecostal is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of three thousand dollars ($3,000) for
failing to make entries in the station logs, in violation of
Section 11.35(a) of the Rules, failing to transmit the RMT, in
violation of Section 11.61(a)(1)(v) of the Rules, and failing to
transmit the RWT, in violation of Section 11.61(a)(2)(i)(A) of
the Rules.
10. 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, Pentecostal 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. 200332400010 and FRN: 0008 2535 44.
12. 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. 200332400010 and FRN:
0008 2535 44.
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 Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
15. 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. 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 questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Pentecostal Temple Development Corporation, 6300
East Liberty Boulevard, Pittsburgh, Pennsylvania 15206.
FEDERAL COMMUNICATIONS
COMMISSION
John E. Rahtes
District Director
Philadelphia Office
Attachment A - FCC's List for Small Entities
_________________________
1 47 C.F.R §§ 11.35(a), 11.61(a)(1)(v), and 11.61(a)(2)(i)(A).
2 47 CFR §§ 73.1820, and 73.1840.
3 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).
4 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.
5
47 C.F.R. § 1.80.
6 47 U.S.C § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.