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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Birmingham Christian Radio, Inc ) EB-05-AT-028
)
Licensee of Station WNUZ ) NAL/Acct. No. 200632480002
Talladega, Alabama ) FRN 0009954801
Facility ID # 54472 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November
18, 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 Birmingham Christian Radio, Inc.
(``BCR''),1 licensee of station WNUZ in Talladega, Alabama,
apparently willfully and repeatedly violated Section 11.35(a)
of the Commission's Rules (``Rules'')2 by failing to maintain
operational Emergency Alert System (``EAS'') equipment, and
apparently willfully violated Section 73.3526(c) of the Rules3
by failing to make available a complete public inspection file.
We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"),4 that BCR is apparently liable
for a forfeiture in the amount of nine thousand dollars
($9,000).
II. BACKGROUND
2. On March 7, 2005, an agent from the Commission's
Atlanta Office of the Enforcement Bureau (``Atlanta Office''),
accompanied by a station employee, conducted a detailed
inspection of the station's main studio. The station had
installed EAS equipment. However, when the agent tested the
EAS encoder by activating a test EAS alert, while monitoring
the station's off-the-air signal, the alert was not transmitted
by the station. The agent also examined the two receivers used
to monitor the EAS sources and found neither was functioning
properly. In addition, the agent inspected the station's EAS
logs. The logs showed that the last EAS test received by the
station was June 6, 2004. The logs contained no statements
that the EAS equipment had been taken out of service or was
under repair. The agent also reviewed the contents of the
public inspection file and found it missing the issues/programs
lists for the third and fourth quarters of 2004. No employee
at the station could find the lists or make them available to
the agent.
3. On August 25, 2005, the Atlanta Office issued BCR a
Notice of Violation (``NOV'') for violating, among other
things, Sections 11.35(a), 11.52(d), and 73.3526(c) of the
Rules.5 In its reply to the NOV, received September 21, 2005,
BCR stated that the EAS encoder and receivers had been
incorrectly installed at the time of the March 7, 2005
inspection, but that the equipment had been installed correctly
on or about August 30, 2005. BCR also stated that it had
placed the missing issues/programs lists in the station's
public file.
III. DISCUSSION
4. 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) has been interpreted to mean simply
that the acts or omissions are committed knowingly.6 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.7
5. Section 11.35(a) of the Rules states that ``Broadcast
stations and cable systems and wireless cable systems 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 time the
stations and systems are in operation.'' When a test of the
WNUZ encoder was conducted during the station inspection on
March 7, 2005, the station was unable to transmit an EAS alert
over-the-air. Moreover, neither of the two EAS receivers
employed for monitoring the two assigned sources was
operational.8 The station records also did not contain any
entries indicating that the EAS system was malfunctioning or
was under repair. In reply to the NOV, BCR admitted that the
station's EAS equipment had been incorrectly installed on March
7, 2005 and that the equipment was not properly installed until
about August 30, 2005. Based on the evidence before us, we
find that BCR apparently willfully and repeatedly violated
Section 11.35(a) by failing to maintain operational EAS
equipment.
6. Section 73.3526(c) of the Rules states that material in
the public inspection file ``shall be available for public
inspection at any time during regular business hours.'' At the
time of the inspection, the station was unable to make the
issues/programs listings for the third and fourth quarters of
2004 available to the agent, as required by Section
73.3526(e)(12) of the Rules. In the reply to the NOV, BCR
stated that the violation had been corrected and the lists were
now in the station's public file. Based on this evidence, we
find that BCR apparently willfully violated Section 73.3526(c)
of the Rules by failing to maintain a complete public
inspection file.
7. 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 amount for EAS equipment not installed or
operational is $8,000 and the base forfeiture amount for
violations of public file rules is $10,000.9 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.10 Because station
WNUZ's public inspection file was mostly complete, we conclude
a reduction from the base forfeiture amount to $1,000 is
appropriate. 11 Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we
conclude that BCR is apparently liable for a nine thousand
dollar ($9,000) forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's
Rules, Birmingham Christian Radio, Inc. is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of nine
thousand dollars ($9,000) for violations of Sections 11.35(a)
and 73.3526(c) of the Rules.12
9. 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, Birmingham
Christian Radio, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.
10. 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.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, Atlanta Office, 3575 Koger Blvd., Ste. 320, Duluth, GA
30096 and must include the NAL/Acct. No. referenced in the
caption.
12. 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.
13. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Associate Managing
Director, Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.8
14. 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 Birmingham
Christian Radio, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
District Director,
Atlanta Office
South Central Region
Enforcement Bureau
_________________________
1BCR is owned by Willis Broadcasting Corporation.
2 47 C.F.R. § 11.35(a).
347 C.F.R. § 73.3526(c).
447 U.S.C. § 503(b).
5Notice of Violation, NOV V20053248003 (Enf. Bur., Atlanta
Office, August 25, 2005).
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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
7Section 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.''
8See 47 C.F.R. § 1.1914.
912 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1047 U.S.C. § 503(b)(2)(D).
11See Twenty-One Sound Communications, Inc., Forfeiture Order, 20
FCC Rcd 12497 (Enf. Bur. 2005).
1247 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
11.35(a), 73.3526(c).
8See 47 C.F.R. § 1.1914.