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1. Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Halifax Christian Community ) File Number EB-04-TP-054
Church, Inc. Licensee of WFBO- ) NAL/Acct. No. 200532700003
LP ) FRN: 0006871339
Flagler Beach, Florida )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 6, 2004
By the District Director, Tampa Office, South Central
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Halifax Christian Community
Church, Inc. (``Halifax''), licensee of low power FM
(``LPFM'') radio station WFBO-LP, Flagler Beach, Florida,
apparently liable for a forfeiture in the amount of twenty-
one thousand dollars ($21,000) for willful and repeated
violation of Sections 11.35, 73.840, 73.845, and
73.1660(a)(2) of the Commission's Rules (``Rules'')1.
Specifically, we find Halifax apparently liable for failure
to install and maintain operational EAS equipment and
operating overpower with a non-certified transmitter from an
unauthorized location.
II. BACKGROUND
2. In response to a complaint, agents of the
Enforcement Bureau's Tampa Office (``Tampa Office'')
investigated station WFBO-LP in Flagler Beach, Florida. On
February 20, 2004, before inspecting the main studio, the
agents observed the station's transmitter operating at 450
watts, a level significantly above the station's authorized
power of 27 watts. The transmitter consisted of a non-
certified exciter attached to a 500-watt amplifier and was
located approximately 1½ miles from its licensed geographic
coordinates. During the inspection of the main studio, the
agents observed that the station had not installed any EAS
equipment. The station owner admitted that the station had
never installed any EAS equipment. The station owner also
acknowledged that the transmitter was not located at its
licensed coordinates, had always been located in its current
location, and had been operating overpower. The agents
returned to the transmitter site with the station owner, who
lowered the transmitter's power level before the agents
reached the power meter. During this inspection, the agents
observed the transmitter operating at 320 watts.
III. DISCUSSION
3. Section 11.35(a) of the Rules2 states that
broadcast stations are responsible for ensuring that EAS
equipment is installed so that the monitoring and
transmitting functions are available during the times the
station is in operation. During an inspection on February
20, 2004, there was no EAS equipment installed at the
station. Accordingly, the monitoring and transmitting
functions of the EAS equipment were not available. The
station owner admitted that the station had never installed
any EAS equipment.
4. Section 73.840 of the Rules3 requires the station
to maintain the transmitter power output (``TPO'') as near
as practicable to its authorized value, but not less than
90% of the minimum TPO, nor greater than 105% of the maximum
authorized TPO. The station was authorized to operate at 27
watts. On February 20, 2004, the station's transmitter
operated at over 1000% of its authorized power. The station
owner admitted to increasing the transmitter power over the
authorized level to provide additional coverage for the
station.
5. Section 73.845 of the Rules4 requires each LPFM
station to maintain and operate its station in accordance
with the terms of its station authorization. Station WFBO-
LP's station authorization specified its authorized
transmitter location by geographic coordinates. However,
the station's transmitter was constructed approximately 1-
1/2 miles away from the authorized location. The station
owner stated that he was aware of this fact and that the
transmitter had always been located in the same place.
6. Section 73.1660(a)(2) of the Rules5 requires every
LPFM station to use an FCC Certified transmitter. The
transmitter used by station WFBO-LP consisted of an exciter
and amplifier. Neither of these pieces of equipment were
FCC Certified.
7. Based on the evidence before us, we find Halifax
willfully6 and repeatedly7 violated Sections 11.35, 73.840,
73.845, and 73.1660(a)(2) of the Rules by failing to install
and maintain EAS equipment and operating overpower with a
non-certified transmitter from an unauthorized location.
8. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture
Policy Statement'') and Section 1.80(b)(4) of the Rules,8
the base forfeiture amounts are as follows: failure to
install EAS equipment, $8,000; use of unauthorized
equipment, $5,000; exceeding power limits, $4,000; and
construction or operation at an unauthorized location,
$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 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.9 Considering the
entire record and applying the factors listed above, this
case warrants a $21,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended,10 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,11 Halifax Christian Community Church,
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
11.35, 73.840, 73.845, and 73.1660(a)(2) of the Rules by
failing to install and maintain required EAS equipment and
operating overpower with a non-certified transmitter from an
unauthorized location.
10. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Halifax Christian Community Church, Inc., 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 must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. Payment by check or money order
may be mailed to Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, IL 60673-7482. Payment by overnight mail may be
sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may
be made to ABA Number 071000013, receiving bank Bank One,
and account number 1165259. The payment should note
NAL/Acct. No. 200532700003, and FRN 0006871339. Requests
for payment of the full amount of this NAL under an
installment plan should be sent to: Chief, Revenue and
Receivable Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.12
12. The response, if any, must be mailed to Federal
Communications Commission, 2203 N. Lois Avenue Suite 1215,
Tampa, Florida 33607 within thirty days of the release date
of this NAL 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. IT IS FURTHER ORDERED that a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Halifax Christian Community Church,
Inc., Ronald L. Kocher, President, 45 Pine Hill Lane, Palm
Coast, FL 32164.
FEDERAL COMMUNICATIONS
COMMISSION
Ralph Barlow
District Director, Tampa
Office, South Central Region
Enforcement Bureau
_________________________
147 C.F.R. §§ 11.35(a), 73.840, 73.845, 73.1660(a)(2).
247 C.F.R. § 11.35(a).
347 C.F.R. § 73.840.
447 C.F.R. § 73.845.
5 47 C.F.R. § 73.1660(a)(2)
6Section 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).
7The 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).
847 C.F.R. § 1.80(b)(4).
947 U.S.C. § 503(b)(2)(D).
1047 U.S.C. § 503(b).
1147 C.F.R. §§ 0.111, 0.311 and 1.80.
12See 47 C.F.R. § 1.1914.