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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number EB-04-OR-094
Jason Konarz )
Licensee of WQMA(AM) ) NAL/Acct.
Marks, Mississippi )
) No.200432620004
)
FRN 0005015425
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 21,
2004
By the District Director, New Orleans Office, South Central
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Jason Konarz (``Konarz''),
licensee of radio station WQMA(AM), Marks, Mississippi,
apparently liable for a forfeiture in the amount of twenty
thousand dollars ($20,000) for willful and repeated
violation of Sections 11.35(a), 73.1745(a) and 73.3526(c) of
the Commission's Rules (``Rules'').1 Specifically, we find
Konarz apparently liable for failing to maintain operational
Emergency Alert System (``EAS'') equipment, operating with
excessive power and then failing to discontinue operation at
night, and failing to make available for inspection all of
the required materials in the station's public inspection
file.
II. BACKGROUND
2. On May 11, 2004, an agent of the FCC Enforcement
Bureau's New Orleans Field Office (``New Orleans Office'')
monitored WQMA(AM)'s signal from before sunset until 8:30
p.m. Central Daylight Time (``CDT''). The station's
programming signed off at 7:20 p.m. CDT, however, it
continued to transmit an un-modulated carrier until at least
8:30 p.m. CDT. The agent made field strength measurements
of the station's signal during this time period and
determined that WQMA(AM) failed to discontinue operation at
8:00 p.m. CDT in accordance with its station authorization.
WQMA(AM) is authorized as a daytime only station with a
power of 250 watts.
3. On May 12, 2004, the agent again monitored
WQMA(AM)'s signal from before sunset until 8:30 p.m. CDT.
The station repeated the previous night's procedure by
signing off at 7:20 p.m. CDT and then continuing to transmit
an un-modulated carrier until at least 8:30 p.m. CDT. The
agent made field strength measurements verifying that
WQMA(AM) again failed to discontinue operation at 8:00 p.m.
CDT.
4. On May 13, 2004, the agent made field strength
measurements and then inspected WQMA(AM). At the time of
the inspection, the EAS encoder/decoder would not function
and only one receiver was present. Station personnel
reported that the EAS encoder/decoder had been broken
between three and eighteen months. There were no logs or
other evidence that the EAS encoder/decoder had ever been in
operation or that it was being repaired.2 Also during the
inspection, it was determined that the station's transmitter
power output meter displayed 425 watts, 170% of the
authorized power of 250 watts. Finally, the station owner
was able to produce the station authorization and a contour
map for WQMA(AM), but was unable to find any other elements
of the station's public file
III. DISCUSSION
5. Section 11.35(a) of the Rules requires that
broadcast stations maintain operational EAS encoders,
decoders and attention signal generating and receiving
equipment so that monitoring and transmitting functions are
available during the times the stations are in operation.3
On May 13, 2004, WQMA(AM)'s EAS unit was not functional.
All personnel questioned at WQMA(AM) stated that the
equipment had been not been operational for three to
eighteen months. Furthermore, there was no evidence or logs
showing that the unit had been functional at any time, nor
were there log entries indicating that the equipment was
under repair
6. Section 73.1745 of the Rules states that ``[n]o
broadcast station shall operate at times, or with modes or
power, other than those specified and made a part of the
license, unless otherwise provided in this part.''4
WQMA(AM)'s license authorizes daytime-only operation with a
power of 250 watts. On May 11 and May 12, 2004, WQMA(AM)
failed to discontinue operation as specified and continued
to operate at least 30 minutes after local sunset each
night. In addition, on May 13, 2004, WQMA(AM)'s
transmitter output power was displayed as 425 watts. Field
strength measurements made on May 11, 12, and 13, 2004
showed that the signal levels remained the same all three
days. Accordingly, WQMA(AM) operated with excessive power
all three days.
7. Section 73.3526(a)(2) of the Rules requires that
every permittee or licensee of an AM or FM station shall
maintain a public inspection file containing the material,
relating to that station, described in paragraphs (e)(1)
through (e)(10) and paragraphs (e)(12) through (e)(14) of
this section.5 Section 73.3526(b) of the Rules requires the
public inspection file be maintained at the station's main
studio.6 Section 73.3526(c) of the Rules requires the file
be available for public inspection at any time during
regular business hours.7 On May 13, 2004, an inspection of
station WQMA(AM)'s public inspection file revealed that
required material was missing, specifically everything other
than the current station authorization and the most current
contour map. Accordingly, complete public inspection file
material was not available for inspection during regular
business hours at the WQMA(AM) main studio.
8. Based on the evidence before us, we find Konarz
willfully8 and repeatedly9 violated Sections 11.35(a),
73.1745(a), and 73.3526(c) of the Rules by failing to
maintain operational EAS equipment, operating with excessive
power and failing to discontinue operation at sunset, and
failing to make available for inspection all of the required
materials in the station's public inspection file.
9. Pursuant to Section 1.80(b)(4) of the Rules,10 the
base forfeiture amount for failure to maintain operational
EAS equipment is $8,000, the base forfeiture amount for
operation with excessive power and failure to discontinue
operation after sunset is $4,000, and the base forfeiture
amount for violation of the public file rule is $10,000. 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,
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.11 Because the station maintained a portion of the
required items in the public inspection file, a downward
adjustment of the base forfeiture for that violation from
$10,000 to $8,000 is warranted. Considering the entire
record and applying the factors listed above, this case
warrants a $20,000 forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended,12 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,13 Jason Konarz is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty thousand dollars ($20,000) for willful and repeated
violation of Sections 11.35(a), 73.1745(a) and 73.3526(c) of
the Rules by for failing to maintain operational Emergency
Alert System equipment, operating with excessive power and
then failing to discontinue operation at night, and failing
to make available for inspection all of the required
materials in the station's public inspection file.
11. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Jason Konarz 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. 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. 20554.14
13. The response, if any, must be mailed to the
Federal Communications Commission, New Orleans Office, Suite
460, 2424 Edenborn Avenue, Metairie, LA 70001, within
thirty days of the release date of this NAL and MUST INCLUDE
THE NAL/Acct. No. referenced above.
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. 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 Regional
Counsel, FCC, EB, South Central Region, 520 NE Colbern Road,
Second Floor, Lee's Summit, MO 64086. 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 NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Jason Konarz, Route 2, Box 290A, Marks,
Mississippi 38646.
FEDERAL COMMUNICATIONS
COMMISSION
James C. Hawkins
District Director
New Orleans Office, South
Central Region
Enforcement Bureau
Attachment
_________________________
147 C.F.R. §§ 11.35(a), 73.1745(a) and 73.3526(c).
2See 47 C.F.R. § 11.35(b).
347 C.F.R. § 11.35(a).
447 C.F.R. § 73.1745.
547 C.F.R. § 73.3526(a)(2).
647 C.F.R. § 73.3526(b).
747 C.F.R. § 73.3526(c).
8Section 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).
9The 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).
1047 C.F.R. § 1.80(b)(4).
1147 U.S.C. § 503(b)(2)(D).
1247 U.S.C. § 503(b).
1347 C.F.R. §§ 0.111, 0.311, 1.80.
14See 47 C.F.R. § 1.1914.