Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-436
)
RJM Communications, Inc. ) NAL/Acct. No.200332700026
Licensee of WGSR(AM) in ) FRN 0008028938
Fernandina Beach, Florida )
Kalamazoo, Michigan )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 15, 2003
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find RJM Communications, Inc.
(``RJM''), licensee of radio station WGSR, Fernandina Beach,
Florida, apparently liable for a forfeiture in the amount of
twenty-one thousand dollars ($21,000) for willful and
repeated violation of Sections 73.1125 and 73.1745(a) of the
Commission's Rules (``Rules'') and willful violation of
Section 73.3526(c)(1) of the Rules.1 Specifically, we find
RJM Communications, Inc. apparently liable for failure to
maintain a presence at its main studio, exceeding authorized
nighttime operating power, and failure to make available a
public inspection file during regular business hours.
II. BACKGROUND
2. RJM is the licensee of AM broadcast station WGSR
in Fernandina Beach, Florida. WGSR's station license
authorizes daytime power of 10 kW and nighttime power of 30
watts.
3. On August 16, 2002, the FCC Enforcement Bureau's
Tampa Field Office (``Tampa Office'') received a complaint
alleging that WGSR failed to reduce transmitter power at the
required times as specified in the station authorization.
4. On September 10, 2002, two agents from the Tampa
Office monitored WGSR's signal. Field strength measurements
revealed that WGSR did not reduce power at sunset as
required by the station authorization. WGSR remained at
daytime power until at least 10:00 p.m. Local sunset is
7:30 p.m. in September.
5. On September 11, 2002, the agents again monitored
WGSR's signal. Field strength measurements revealed that
WGSR did not reduce power at sunset as required by the
station authorization. WGSR remained at daytime power until
at least 9:03 p.m.
6. On September 12, 2002, the agents inspected radio
station WGSR during regular business hours. The agents met
with Mr. Joe Fisher, the only person present at WGSR, who
assisted the agents during the inspection. Mr. Fisher told
the agents that he was employed by Anscombe Broadcasting
Group, LTD (``ABG''). ABG has held a local marketing
agreement (``LMA'') with RJM since August 1, 2002. Mr.
Fisher stated that RJM had no employee at the WGSR studio
since August 7, 2002, at which time Mr. Fisher had fired the
licensee's only employee. Mr. Fisher stated that he
operated the station's transmitter manually and that he was
not present at the transmitter site on the evenings of
September 10 and 11, 2002, to make the transmitter power
adjustments. The agents found the station's transmitter
operating at or about the authorized daytime power level.
The agents again measured WGSR's field strength during
daytime hours and found the signal strength identical to the
previous two nights' measurements, thus verifying that the
field strength measurements made during nighttime hours on
the previous two nights corresponded to the station's
daytime power level. Upon the agents' request to see the
station's public inspection file, Mr. Fisher was unable to
provide any contents of the file.
III. DISCUSSION
7. Section 73.1125 requires the licensee of a
broadcast station to maintain a main studio at one of the
following locations: (1) within the station's community of
license; (2) at any location within the principal community
contour of any AM, FM or TV broadcast station licensed to
the station's community of license; or (3) within twenty
five miles from the reference coordinates of the center of
its community of license. In adopting the main studio
rules, the Commission stated that the station's main studio
must have the capability to serve the needs and interests of
the residents of the station's community of license.2 To
fulfill this function, a station, among other things, must
maintain a meaningful presence at its main studio.3 The
Commission has defined a minimally acceptable ``meaningful
presence'' as full-time managerial and full-time staff
personnel.4 The licensee need not have the same staff
person and manager at the studio, as long as there was
management and staff presence there during normal business
hours.5 Although management personnel need not be ``chained
to their desks'' during normal business hours, they must
``report at the main studio on a daily basis, spend a
substantial amount of time there and ... use the studio as a
home base.''6 From August 7, 2002, until at least September
12, 2002, RJM failed to maintain managerial or staff
presence at its main studio. WGSR's main studio was staffed
with an employee of another company with which RJM had an
LMA to provide programming on WGSR.
8. Section 73.1745(a) states that no broadcast
station shall operate at times, or with modes or power,
other than those specified and made part of the license. On
September 10 and 11, 2002, station WGSR operated with
daytime power during nighttime hours.
9. Section 73.3526(a)(2) of the Rules7 requires that
every permittee or licensee of an AM, FM. TV or Class A TV
station in the commercial broadcast services shall maintain
a public inspection file containing the material, relating
to that station, described in paragraphs (e)(1) through
(e)(10) and paragraph (e)(13) of this section. Section
73.3526(b) of the Rules8 requires the public inspection file
be maintained at the station's main studio. Section
73.3526(c)(1) of the Rules requires the file be available
for public inspection at any time during regular business
hours. On September 12, 2002, no public inspection file
material was available for inspection during regular
business hours at the WGSR main studio.
10. Based on the evidence before us, we find RJM
willfully9 and repeatedly10 violated Sections 73.1125 and
73.1745(a) of the Rules, and willfully violated Section
73.3526(c)(1) of the Rules by failing to maintain a presence
at its main studio, exceeding authorized nighttime operating
power, and failing to make available the public inspection
file during regular business hours.
11. Pursuant to Section 1.80(b)(4) of the Rules,11 the
base forfeiture amount for failure to maintain a public
inspection file is $10,000, for exceeding authorized
operating power is $4,000 and for violation of main studio
rule is $7,000. 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''), 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.12 Considering the entire
record and applying the factors listed above, this case
warrants a $21,000 forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,13 and Sections 0.111, 0.311 and
1.80 of the Rules,14 RJM Communications, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-one thousand dollars ($21,000) for willful
and repeated violation of Sections 73.1125 and 73.1745(a) of
the Rules, and willful violation of Section 73.3526(c)(1) of
the Rules for failing to maintain a presence at its main
studio, exceeding authorized nighttime operating power, and
failing to make available the public inspection file during
regular business hours.
13. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, RJM Communications, Inc. SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
14. 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. 20554.15
15. 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.
16. 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.
17. 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.
18. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to RJM Communications, Inc., 1218 S. Park
Street, Kalamazoo, MI 49001.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
Tampa Office, Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. §§ 73.1125, 73.1745(a), and 73.3526(c)(1).
2 Main Studio and Program Origination Rules, 2 FCC Rcd 3215,
3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
3 Id.
4 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 (1991), clarified, 7 FCC Rcd 6800 (1992).
5 Id., 6 FCC Rcd at 3616 n.2; 7 FCC Rcd at 6800 n.4.
6 Id., 7 FCC Rcd at 6802.
7 47 C.F.R. § 73.3526(a)(2).
8 47 C.F.R. § 73.3526(b).
9 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed
under 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 4387-88
(1991).
10 The 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.'' 47
U.S.C. § 312(f)(2).
11 47 C.F.R. § 1.80(b)(4).
12 47 U.S.C. § 503(b)(2)(D).
13 47 U.S.C. § 503(b).
14 47 C.F.R. §§ 0.111, 0.311, 1.80.
15 See 47 C.F.R. § 1.1914.