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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Southern Media Group, Inc. ) EB-05-AT-060
Licensee of Station WBZH(FM) ) NAL/Acct. No. 200532480002
Harriman, TN ) FRN 0009410804
Facility ID # 70637 )
)
Licensee of Station WWSR(FM) ) EB-05-AT-061
Rockwood, TN )
Facility ID # 51113 )
)
Licensee of Station WOFE(AM) ) EB-05-AT-062
Rockwood, TN )
Facility ID # 51114 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October
05, 2005
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Southern Media Group, Inc. (``Southern
Media''), licensee of stations WBZH(FM), in Harriman,
Tennessee, WWSR(FM), in Rockwood, Tennessee, and WOFE(AM) in
Rockwood, Tennessee, apparently willfully and repeatedly
violated Sections 11.35(a), 73.1350(a), 73.1620(a)(2), and
1.903 of the Commission's Rules (``Rules'')1 by failing to
maintain Emergency Alert System (``EAS'') equipment in
operational condition, failing to file FCC Form 302-FM
(``license application'') requesting program test authority
(``PTA'') prior to operating its station with a directional
antenna, and failing to operate within the terms of the
station's broadcast and studio transmitter link (``STL'')
authorizations. We also find that Southern Media apparently
willfully violated Section 73.3526(e) of the Rules2 by failing
to maintain a complete public inspection file. In addition, we
admonish Southern Media for its violation of Section 73.1125(a)
of the Rules3 by failing to comply with the main studio
location requirements. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended (``Act''),4 that
Southern Media is apparently liable for a forfeiture in the
amount of twenty five thousand dollars ($25,000).
II. BACKGROUND
2. On June 29, 2005, in response to a complaint of alleged
violations, agents from the Commission's Atlanta Office of the
Enforcement Bureau (``Atlanta Office'') used radio direction
finding techniques to determine the transmitting locations of
stations WBZH(FM) and WWSR(FM). The agents found that station
WBZH(FM) was transmitting from a site approximately 13 miles
from the location stipulated in its broadcast station
authorization and that station WWSR(FM) was transmitting from a
site specified in its construction permit (``CP'')
authorization, not from the site specified in its license.5
3. On June 30, 2005, agents from the Atlanta Office,
accompanied by the President of Southern Media who also serves
as the General Manager for all three stations, inspected the
main studio located at 37 South Drive, Crossville, Tennessee.
The President/General Manager stated that, around March 1,
2005, the main studios for stations WBZH(FM), WWSR(FM) and
WOFE(AM) were consolidated and moved to the new combined studio
located at 37 South Drive. The President/General Manager
stated that he believed the studio for station WBZH(FM) was
25.4 miles6 from the main post office in Harriman, Tennessee
and therefore in compliance with the main studio location ``25
mile rule.''7
4. During the inspection, the agents informed the
President/General Manager that they determined that station
WBZH(FM) was transmitting from a site approximately 13 miles
from its authorized location and that station WWSR(FM) was
transmitting from its CP location. The President/General
Manager stated that he moved the transmitting facilities for
station WBZH(FM) to its current location in January 2005.8 He
stated that he knew he should have obtained Commission
authority to move the transmitting facilities, but he could not
afford the application filing fees. He also confirmed that
station WWSR(FM) began transmitting from the station's CP
location around September or October of 2004. He acknowledged
that the station was required to file a license application
requesting PTA from the CP location, and reiterated that he
could not afford the filing fee. He stated, however, that the
station did conduct the proof of performance measurements.9
5. Still during the inspection, the agents found that the
installed Sage Endec EAS (encoder/decoder) was not operational,
because it was not connected to any receivers. The
President/General Manager acknowledged that the EAS equipment
had not been functional for more than 60 days, since the time
he consolidated the main studios at the new location. He
stated he intended to share the EAS equipment among the three
stations located at the main studio, but had not finished the
installation. He stated that he still needed to obtain two
monitoring receivers and an additional component to finish the
installation. There were no logs to demonstrate that the
stations' EAS had ever been operational, even at the old
studios, or to indicate the date and time the EAS equipment was
taken out of service.
6. Still during the inspection, the agents asked to see
the public inspection file for each station. The public
inspection files did not contain any programs issues lists or
copies of the current broadcast station authorizations, and the
President/General Manager could not locate these documents over
the course of the 30-minute public file inspection.
III. DISCUSSION
7. 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.10 The term ``repeated'' means the commission or
omission of such act more than once or for more than one day.11
8. Section 11.35(a) of the Rules states that broadcast
licensees are responsible for ensuring that EAS Encoders, EAS
Decoders and Attention Signal generating and receiving
equipment used as part of the EAS are installed so that the
monitoring and transmitting functions are available during the
times the stations are in operation. Section 11.35(b) of the
Rules12 states that if the EAS Encoder or EAS Decoder becomes
defective, the broadcast station may operate without the
defective equipment pending its repair or replacement for 60
days without further FCC authority. Licensees are required to
ensure that entries are made in the broadcast station log
showing the date and time the equipment was removed from and
restored to service. On June 30, 2005, the EAS equipment for
stations WBZH(FM), WWSR(FM) and WOFE(AM) was not operational,
because there were no receivers connected to the EAS equipment
to enable it to receive alerts. The President/General Manager
stated that the EAS for the three stations had not been
operational since around March 1, 2005. Moreover, the stations
were unable to produce any EAS logs of any kind to demonstrate
that the stations had ever had functioning EAS equipment or
that the equipment had been removed for repair.
9. Section 73.1125(a) of the Rules requires that each FM
broadcast station 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 as described in Section 73.208(a)(1).13 Station
WBZH(FM)'s community of license is Harriman, Tennessee. On
June 30, 2005, the main studio for station WBZH(FM) was located
in Crossville, Tennessee. The main studio was located outside
of the station's principal community contour, and there are no
other stations currently licensed to Harriman. Using global
positioning system equipment, the agents determined that the
main studio was located 27 miles from the reference coordinates
for the center of the city of Harriman as determined by
National Atlas and 26.7 miles from the main post office in
Harriman. The Commission has no record that a waiver of the
main studio rules for station WBZH(FM) was ever requested or
granted. The President/General Manager stated that the main
studio for station WBZH(FM) was relocated to Crossville around
March 1, 2005.
10. Section 73.1350(a) of the Rules requires that
broadcast licensees operate stations in accordance with the
terms of the station authorization. On June 30, 2005, station
WBZH(FM) was operating from a transmitter location 13 miles
from the location specified in its station authorization and,
according to the President/General Manager, had been operating
from that location since January 2005. The Commission has no
record that a special temporary authority or permanent
authority to operate from the transmitter's current location
was ever requested or granted.
11. Section 73.1620(a)(2) of the Rules requires that
the permittee of an FM station with a directional antenna
system file with the FCC a license application requesting
authority to commence program test operations at full power.
This license application must be filed at least 10 days prior
to the date on which full power operations are desired to
commence. The application for license must contain any
exhibits called for by the conditions on the CP authorization.
Southern Media began operations for station WWSR(FM) from the
CP location in September or October of 2004 and did not file a
license application requesting PTA or to cover the CP with the
FCC. The Commission has no record that a special temporary
authority to operate at the CP location was ever requested or
granted, and the operation continued for more than 30 days.14
12. Section 1.903 of the Rules requires that stations
in the Wireless Radio Services operate in accordance with the
rules applicable to their service and within the terms of their
granted station authorization. Section 1.929(d)(1) of the
Rules15 states that in the aural broadcast auxiliary service,
any modification of a fixed point-to-point facility that
results in a transmit antenna location change of more than 5
seconds in latitude or longitude or a change in azimuth of more
than 1 degree is a major modification. Section 1.947(a) of the
Rules16 states that all major modifications defined in Section
1.929 require prior Commission approval. Station WBZH(FM) and
station WWSR(FM) each had an STL license. The STL licenses
specify the locations for the stations' transmit and receive
antennas. The main studios for stations WBZH(FM) and WWSR(FM)
and the associated STL transmit antennas were moved from the
authorized locations to Crossville, Tennessee around March 1,
2005. The broadcast transmitter and associated STL receiver
antenna for station WBZH(FM) were moved to a location thirteen
miles away from the authorized location in January 2005.
Station WWSR(FM) began operating with an STL receiver antenna
from the CP location, which differs from the authorized
location, in September or October 2004. These changes in
locations for the STL receive and transmit antennas were more
than 5 seconds in latitude and longitude and more than 1 degree
in azimuth, thus requiring the filing of a major change
applications and Commission approval. The Commission has no
record that special temporary authority or applications to
modify the STL licenses were ever requested or granted.17
13. Section 73.3526 of the Rules18 requires that
broadcast licensees maintain a public inspection file at the
main studio of the station. Section 73.3526(e) of the Rules
specifies the required contents of the public inspection file.
Section 73.3526(e)(1) of the Rules19 requires that licensees
place in the public inspection file a copy of the current
broadcast station authorization. Section 73.3526(e)(12) of the
Rules20 requires that commercial AM and FM broadcast stations
place in the public inspection file a list of programs that
have provided the station's most significant treatment of
community issues during the preceding three months; the lists
must be filed quarterly, by the 10th day of the succeeding
calendar quarter. On June 30, 2005, the public inspection
files for stations WBZH(FM), WWSR(FM), and WOFE(AM) did not
contain any programs lists for any calendar quarter or copies
of the current station authorizations. Furthermore, no copies
of the current authorizations were posted at the main studio.21
14. Based on the evidence before us, we find that
Southern Media apparently willfully and repeatedly violated
Sections 11.35(a), 73.1350(a), 73.1620(a)(2), and 1.903 of the
Rules by failing to maintain operational EAS equipment, failing
to file a license application requesting PTA prior to operating
its station, and failing to operate within the terms of the
stations' broadcast and STL authorizations. We further find
that Southern Media apparently willfully violated Section
73.3526(e) of the Rules by failing to maintain a complete
public inspection file. We also admonish Southern Media for
violating Section 73.1125(a) of the Rules by failing to comply
with the main studio location requirements. In addition, we
direct Southern Media to provide a written description of the
steps it has taken to correct these violations within 30 days.
We will determine at that time whether additional enforcement
action should be taken.
15. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"), and Section 1.80 of the Rules, the base forfeiture
amounts are: $8,000 for EAS equipment not installed or
operational, $10,000 for violation of public file rules, $3,000
for failure to file required forms or information, $4,000 for
construction and operation at unauthorized location (Broadcast
Transmitter), and $4,000 for construction and operation at
unauthorized location (STL).22 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.23 Because the
stations' public inspection files were partially complete, we
conclude a reduction from the base forfeiture amount to $6,000
is appropriate. Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we
conclude that Southern Media is apparently liable for a $25,000
forfeiture.
IV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
and Section 1.80 of the Commission's Rules, Southern Media
Group, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty five thousand dollars
($25,000) for violations of Sections 1.903, 11.35(a),
73.1350(a), 73.1620(a)(2), and 73.3526(e) of the Rules.24
17. IT IS FURTHER ORDERED that, Southern Media Group,
Inc. is hereby ADMONISHED for its violation of Section
73.1125(a) of the Commission's Rules.25
18. IT IS FURTHER ORDERED that, within thirty days of
the release date of this Notice of Apparent Liability for
Forfeiture, Southern Media Group, Inc. SHALL FILE a written
statement describing its efforts to come into compliance with
Sections 1.903, 11.35(a), 73.1125(a), 73.1350(a),
73.1620(a)(2), and 73.3526(e) of the Commission's Rules.
19. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Commission's Rules, within thirty days of the
release date of this Notice of Apparent Liability for
Forfeiture, Southern Media Group, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
20. 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.
21. The statement required by paragraphs 14 and 18 of
this Notice of Apparent Liability and the response, if any,
must be mailed to Federal Communications Commission,
Enforcement Bureau, South Central Region, Atlanta Office, 3575
Koger Blvd., Suite 320, Duluth, GA, 30096 and must include the
NAL/Acct. No. referenced in the caption.
22. 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.
23. 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. 20554.26
24. 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 Southern
Media Group, Inc. at P.O. Box 810, Crossville, TN, 38557.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
District Director
Atlanta Office
South Central Region
Enforcement Bureau
_________________________
147 C.F.R. §§ 1.903, 11.35(a), 73.1350(a), 73.1620(a)(2).
247 C.F.R. § 73.3526(e).
347 C.F.R. § 73.1125(a).
447 U.S.C. § 503(b).
5Southern Media was granted a construction permit authorization,
BPH-200306004ACS, to change WWSR(FM)'s operating facilities,
primarily to change the antenna location and to change from a
non-directional antenna to a directional antenna.
6The President/General Manager stated that he assumed that the
Commission would round down the 25.4 miles to 25 miles.
7See 47 C.F.R § 73.1125(a)(3).
8The transmitting facilities for station WBZH(FM) were moved to
an antenna structure used by station WWSR(FM).
9CP authorization BPH-20030604ACS contained special conditions
that before PTA would be authorized, Southern Media must submit
the results of a complete proof of performance, an affidavit from
a licensed surveyor of proper directional antenna orientation,
and an affidavit from a qualified engineer that the antenna was
installed pursuant to the manufacturer's instructions.
10Section 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).
11Section 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.''
1247 C.F.R. § 11.35(b).
13Section 73.208(a)(1) of the Rules states: ``The following
reference points must be used to determine distance separation
requirements when petitions to amend the Table of
Allotments...are considered: (i) First, transmitter sites if
authorized, or if proposed in applications with cut-off
protection...; (ii) Second, reference coordinates designated by
the FCC; (iii) Third, coordinates listed in the United States
Department of Interior publication entitled Index to the National
Atlas of the United States of America; or (iv) Last, coordinates
of the main post office.'' 47 C.F.R. § 73.208(a)(1).
14See 47 C.F.R. § 73.1615.
15See 47 C.F.R. §§ 1.929(d)(1)(i), 1.929(d)(1)(ix).
1647 C.F.R. § 1.947(a).
17Stations WBZH(FM) and WWMR(FM) STL operations from these
locations continued for more than 720 hours, and thus do not fall
with the short-term operating provisions. See 47 C.F.R. § 74.24.
18See 47 C.F.R. § 73.3526.
1947 C.F.R. § 73.3526(1).
2047 C.F.R. § 73.3526(e)(12).
21See 47 C.F.R. § 73.1230.
2212 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. § 1.80.
2347 U.S.C. § 503(b)(2)(D).
2447 U.S.C. § 503(b), 47 C.F.R. §§ 1.80, 1.903, 11.35(a),
73.1350(a), 73.1620(a)(2), 73.3526(e).
2547 C.F.R. § 73.1125(a).
26See 47 C.F.R. § 1.1914.