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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Gerald Parks ) File Number: EB-04-DT-391
)
Licensee of AM Station WEKC ) NAL/Acct. No: 200532360003
Williamsburg, KY )
) FRN 0007 9211 90
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August
26, 2005
By the District Director, Detroit Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Gerald Parks (``Parks''), licensee of AM
Radio Station WEKC, has apparently willfully and repeatedly
violated Sections 17.4(a), 73.3526(e)(4), and 73.3526(e)(12) of
the Commission's Rules (``the Rules'').1 These noted
violations involve Parks's failure to register the antenna
structure and failure to maintain in the public inspection file
a service contour map and issues/programs lists. We conclude,
pursuant to Section 503(b) of the Act,2 that Parks is
apparently liable for a forfeiture in the amount of five
thousand dollars ($5,000).
II. BACKGROUND
2. On September 17, 2003 and December 16, 2003, an agent
from the Detroit Office inspected station WEKC. As a result of
that inspection, the Detroit Office subsequently issued an NOV
to Parks for (1) monitoring only one EAS source, (2) failing to
have a recent ownership report in the public inspection file,
(3) failing to have a copy of ``The Public and Broadcasting''
in the public inspection file, and (4) failing to have an
issues/programs list in the public inspection file.3
3. On July 28, 2004, an agent from the Detroit Office
inspected radio station WEKC to follow up on the violations
found during the inspections in 2003. During the inspection,
the agent did not observe an Antenna Structure Registration
(ASR) number posted on the tower, as required under the Rules.
The agent searched the Commission's ASR Database and found no
evidence that Parks's tower is registered. The agent also
determined that Parks acquired the tower along with the station
in 2000. The agent subsequently discovered that the tower,
which measures 290 feet, was assigned painting and lighting
requirements by the Federal Aviation Administration (``FAA'')
as far back as 1983. During the July 28, 2004 inspection, the
agent also found that WEKC's public inspection file was missing
the service contour map and issues/programs lists.
4. On August 12, 2004, the Detroit Office sent a Letter of
Inquiry (``LOI'') to Parks, requesting, inter alia, information
regarding the tower registration and the issues/program lists.
In its response to the LOI, Parks reported that it is still
working on the antenna structure registration and indicated
that ``[t]he issues/program list we do on the air as local
announcements so what I have done is made copies of these and
placed them in the file....'' Parks further indicated that the
contour map was in the production room at the time of the
inspection and subsequently was placed in the public inspection
file.
5. On July 13, 2005, a Commission agent searched the ASR
database and found no evidence that the tower has been
registered with the FCC.
III. DISCUSSION
6. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
fails to comply with any of the provisions of the Act or of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term "willful"
as used in Section 503(b) of the Act has been interpreted to
mean simply that the acts or omissions are committed
knowingly.4 The term ``repeated'' means the commission or
omission of such act more than once or for more than one day.5
7. Section 17.4(a) of the Rules provides that the owner of
any proposed or existing antenna structure that requires notice
of proposed construction to the FAA must register the structure
with the Commission.6 Section 17.4(a)(2) of the Rules requires
owners of existing antenna structures that were assigned
painting or lighting requirements before July 1, 1996, to
register those antenna structures with the Commission no later
than July 1, 1998.7 Parks's antenna structure was assigned
painting and lighting requirements prior to July 1, 1996 and
therefore the structure should have been registered by July 1,
1998. Although Parks did not own the structure on July 1, 1998,
Parks should have registered the antenna structure as soon as
the structure was acquired in 2000. Although in his response
to the LOI Parks indicated that he was working on registering
the antenna structure, the antenna structure still was not
registered as of July 13, 2005. We therefore find that Parks
apparently willfully and repeatedly violated Section 17.4(a) of
the Rules.
8. Section 73.3526(e)(4) of the Rules requires that
stations place in their public inspection file a copy of any
service contour maps reflecting accurate station information.8
During the July 28, 2004 inspection, Commission agents did not
find a contour map in the public inspection file. In response
to the LOI, Parks did not dispute the agents' findings. The
fact that the contour map allegedly was in the production room
at the time of the inspection and subsequently was placed in
the public inspection file does not change the fact that it was
missing at the time of the inspection. We therefore find that
Parks apparently willfully and repeatedly violated Section
73.3526(e)(4) of the Rules.
9. Section 73.3526(e)(12) of the Rules requires that
stations place in their public inspection files every three
months a list of programs that have provided the station's most
significant treatment of community issues during the preceding
three month period.9 Parks was issued an NOV on December 20,
2003 for failure to have the issues/programs lists in the
public file. The issues/program lists still were not in the
public inspection file when the station was inspected on July
28, 2004. Although Parks stated in response to the LOI that
the issues/programs lists were placed in the public inspection
file after the station was inspected on July 28, 2004, Parks
did not deny that the issues/programs lists were missing from
WEKC's public inspection file on the date of the inspection.
We therefore find that Parks apparently willfully and
repeatedly failed to maintain the issues/programs list in the
public file, as required by Section 73.3526(e)(12) of the
Rules.
10. In The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines ("Forfeiture Policy
Statement"),10 and Section 1.80 of the Rules,11 the base
forfeiture amount is set at three thousand dollars ($3,000) for
failure to file required forms or information and is set at ten
thousand dollars ($10,000) for failure to maintain items in the
public inspection file. 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 violations,
and with respect to the violator, the degree of culpability,
and history of prior offenses, ability to pay, and other such
matters as justice may require.12 Because WEKC's public
inspection file was partially complete, we conclude a reduction
from the base forfeiture amount to $2,000 is appropriate.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Parks
is apparently liable for a $5,000 forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to
Sections 4(i), 4(j), and 503(b) of the Communications Act of
1934, as amended, and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,13 Parks is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of five thousand
dollars ($5,000) for willful and repeated violation of Sections
17.4(a), 73.3526(e)(4), and 73.3526(e)(12) of the Rules.
12. IT IS FURTHER ORDERED that,
pursuant to Section 1.80 of the Commission's Rules, within
thirty (30) days of the release date of this Notice of Apparent
Liability for Forfeiture, Parks SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
13. IT IS FURTHER ORDER that,
pursuant to Sections 308(b) and 403 of the Act, Gerald Parks
shall submit a written report regarding the status of its
antenna structure registration.
14. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106.
15. The response, if any, and the report requested in
paragraph 13 regarding the antenna structure registration, must
be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, Detroit Office, 24897 Hathaway
Street, Farmington Hills, MI 48335, within thirty (30) days
from the release date of this Notice of Apparent Liability for
Forfeiture and must include the NAL/Acct. No. referenced in the
caption.
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. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.14
18. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Gerald
Parks at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
_________________________
147 C.F.R. §§ 17.4(a), 73.3526(e)(4), 73.3526(e)(12).
247 U.S.C. § 503(b).
3See Gerald Parks, Notice of Violation, NOV No. V20043236005
(rel. December 20, 2003).
4Section 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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
5Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[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.''
647 C.F.R. § 17.4(a).
747 C.F.R. § 17.4(a)(2).
847 C.F.R. § 73.3526(e)(4),
947 C.F.R. § 73.3526(e)(12),
1012 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
1147 C.F.R. § 1.80.
1247 U.S.C. § 503(b)(2)(D).
1347 U.S.C. §§ 4(i), 4(j), 503(b); 47 C.F.R. §§ 0.111, 0.311,
1.80.
1447 C.F.R. § 1.1914.