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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number: EB-03-NF-014
)
Frank Neely ) NAL/Acct.: No.200332640007
Licensee of AM Radio Station WLTC )
in Gastonia, North Carolina ) FRN: 0008498685
Rock Hill, South Carolina )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the Enforcement Bureau, Norfolk Office: Released:
July 16, 2003
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Frank Neely (``Neely''),
licensee of AM radio station WLTC, Gastonia, North Carolina,
apparently liable for a forfeiture in the amount of four
thousand dollars ($4,000) for repeated violation of Section
73.1745(a) of the Commission's Rules (``Rules'').1
Specifically, we find Neely apparently liable for operating
with unauthorized power.
II. BACKGROUND
2. Frank Neely is the licensee of non-directional,
commercial AM broadcast station WLTC. WLTC is authorized to
serve Gastonia, North Carolina on a frequency of 1370 kHz
with a power of 12 kW, daytime, various post-sunset powers
(500 watts, 8:00 p.m. - 8:30 p.m., EDT; 262.3 watts, 8:30
p.m. - 9:00 p.m., EDT and 164.7 watts, 9:00 p.m. - 10:00
p.m. EDT), and 30 watts, nighttime.
3. On April 22, 2003, in response to information
alleging overpower operation by WLTC, an agent of the
Commission's Norfolk Resident Agent Office (``Norfolk
Office'') monitored WLTC's signal. Field strength
measurements revealed that WLTC did not reduce transmitter
power at sunset as required by the station authorization,
but remained at daytime power in excess of the authorized
post-sunset power of 500 watts, until 8:16 p.m. EDT. Local
sunset occurs at 8:00 p.m. EDT in April.
4. On April 23, 2003, the agent of the Norfolk Office
again monitored WLTC's signal. Again, field strength
measurements revealed that WLTC did not reduce transmitter
power at sunset as required by the station authorization,
but remained at daytime power in excess of the authorized
post-sunset powers until 9:10 p.m., EDT.
5. On April 24, 2003, the agent inspected WLTC's
transmitter site during daytime hours. The agent observed
antenna base current meter readings in both daytime and
nighttime modes. The readings showed that the WLTC
transmitter exceeded the authorized operating power by more
than 20% in daytime mode and by more than 2000% in nighttime
mode.
III. DISCUSSION
6. Section 73.1745(a) of the Rules states that no
broadcast station shall operate with modes or power other
than those specified and made part of the license. On April
22 and 23, 2003, WLTC operated with daytime power after
sunset until 8:16 p.m. and 9:10 p.m., respectively.
Further, WLTC operated with excessive output power in the
daytime mode on April 24, 2003.
7. Based on the evidence before us, we find Neely
repeatedly2 violated Section 73.1745(a) of the Rules by
operating with unauthorized power.
8. Pursuant to Section 1.80(b)(4) of the Rules,3 the
base forfeiture amount for unauthorized power operation is
$4,000. 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''), 4 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. Considering the entire
record and applying the factors listed above, this case
warrants a $4,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,5 and Sections
0.111, 0.311 and 1.80 of the Rules,6 Neely is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for repeated
violation of Section 73.1745(a) of the Rules for operating
with unauthorized power.
10. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Neely 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. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.7
12. 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.
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. 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 & 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.
15. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and
Certified Mail Return Receipt Requested to Frank Neely 1286
Holland Road, Rock Hill, South Carolina 29732.
FEDERAL COMMUNICATIONS COMMISSION
Luther Bolden,
Resident Agent, Norfolk Office,
Enforcement Bureau
_________________________
1 47 C.F.R. § 73.1745(a).
2 The term ``repeated'' means the commission or omission of
an act more than once or, if such commission or omission is
continuous, for more than one day. 47 U.S.C. § 312(f)(2).
3 47 C.F.R. § 1.80(b)(4).
4 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311.1.80.
7 See C.F.R. § 1.1914.