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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Willis Broadcasting Corporation ) File Number EB-05-NF-014
Licensee of WBTE ) NAL/Acct. No. 200632640002
Norfolk, VA ) FRN 0009042896
Facility ID # 172 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 18, 2005
By the Resident Agent, Norfolk Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Willis Broadcasting
Corporation (``Willis''), licensee of AM station WBTE in
Windsor, North Carolina, apparently willfully violated
Sections 73.1560(a)(1) and 73.3526(c) of the Commission's
Rules (``Rules'')1 by failing to maintain its authorized
antenna input power and failing to make material required to
be in the public file available for inspection. We
conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended (``Act''),2 that Willis is
apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. Willis' WBTE license authorizes daytime only
broadcasts to the community of Windsor, North Carolina, on
frequency 990 kHz with 1,000 watts of power.
3. On March 14, 2005, a resident agent from the
Norfolk Office of the Federal Communications Commission's
(``Commission'') Enforcement Bureau (``Norfolk Office'')
inspected the WBTE facilities and observed, using the direct
method specified in Section 73.51(a)(2) of the Rules,3 that
Willis was operating at over 220% of its authorized daytime
antenna input power. The station's chief operator stated
that she did not know how to determine the station's
operating power using the direct method and that the station
had not established monitoring procedures and schedules to
determine compliance with operating power and modulation
level requirements. The chief operator also admitted that
she did not review or sign the station's weekly logs to
ensure station compliance.
4. In addition, the resident agent also requested to
inspect station WBTE's public inspection file. Station
personnel were unable to make available the station's
current FCC authorization, contour maps, ownership reports
and related materials, political file, radio issues/programs
lists, or local public notice announcements.
5. On July 27, 2005, the Norfolk Office released a
Notice of Violation to Willis for, among other things,
violation of Sections 73.1560(a)(1) and 73.3526 of the
Rules.4 On August 25, 2005, the Norfolk Office received a
response to the NOV from Willis, which included a
declaration by the station's contract engineer that
discussed but did not deny each of the violations.
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 there under, 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.5
7. Section 73.1560(a)(1) of the Rules states that the
antenna input power of an AM station as determined by the
procedures specified in Section 73.51 must be maintained as
near as is practicable to the authorized antenna input power
and may not be less than 90% nor more than 105% of the
authorized power. The Rules also impose several monitoring
requirements on licensees and station chief operators to
ensure compliance with the Commission's technical rules.6
During the inspection on March 14, 2005, station WBTE
operated over 220% of its authorized daytime power. The
station's chief operator admitted that the station had not
established monitoring procedures and schedules to determine
compliance with operating power and modulation level
requirements. The chief operator also stated that she did
not know how to make a direct power measurement and was not
reviewing the station's logs to ensure compliance with the
Rules. In the declaration attached to the response to the
NOV, the station's contract engineer did not deny that the
station exceeded power limits and stated that he installed
equipment to reduce automatically the station's power at
sunset.
8. Section 73.3526(a) of the Rules requires
commercial broadcast stations to maintain for public
inspection, a file containing materials listed in that
section.7 The public inspection file is to be maintained at
the main studio of the station8 and be available for public
inspection during regular business hours.9 On March 14,
2005, employees of station WBTE were unable to make
available the station's current FCC authorization, contour
maps, ownership reports and related materials, political
file, radio issues/programs lists, or local public notice
announcements to the resident agent during regular business
hours. In the declaration attached to the response to the
NOV, the station's contract engineer did not deny the public
file violation and stated that the station's public
inspection file is now complete.
9. Based on the evidence before us, we find that
Willis apparently willfully violated Sections 73.1560(a)(1)
and 73.3526(a) of the Rules by failing to maintain its
authorized antenna input power and failing to make material
required to be in the public file available for
inspection.10
10. 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 exceeding power limits and for
violation of public file rules is $4,000 and $10,000,
respectively.11 However, because Willis' public file was
partially complete, we conclude a reduction in the base
forfeiture amount for the public file violation to $6,000 is
appropriate.12 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.13 Applying
the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that
Willis is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
11. 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, Willis Broadcasting Corporation, is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of ten thousand dollars ($10,000) for
violations of Sections 73.1560(a)(1) and 73.3526(a) of the
Rules.14
12. 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, Willis Broadcasting Corporation SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, Norfolk Office; 1457 Mount Pleasant Road, Suite 113;
Chesapeake VA 23322 and must include the NAL/Acct. No.
referenced in the caption.
15. 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.
16. 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
17. 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 Willis at its address of record and to its counsel,
Lauren A. Colby, P.O. Box 113, Frederick, MD, 21705-0113.
FEDERAL COMMUNICATIONS
COMMISSION
Joseph P. Husnay
Resident Agent
Norfolk Office
South Central Region
Enforcement Bureau Willis Broadcasting Corporation
645 Church Street
Suite 400
Norfolk VA 23510
Willis Broadcasting Corporation
645 Church Street
Suite 400
Norfolk VA 23510
Willis Broadcasting Corporation
645 Church Street
Suite 400
Norfolk VA 23510
Lauren A. Colby
P.O. Box 113
Frederick, MD, 21705-0113
_________________________
147 C.F.R. §§ 73.1560(a)(1) and 73.3526(c).
247 U.S.C. § 503(b).
347 C.F.R. § 73.51(a).
4Notice of Violation, NOV No. V20053264004 (Enf. Bur.
Norfolk Office, July 27, 2005) (``NOV'').
5Section 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).
6See, e.g., 47 C.F.R. §§ 73.1350(c) (licensees must
establish monitoring procedures and schedules for the
station); 73.1870(c)(3) (chief operator must review station
records at least once each week to determine if required
entries are being made correctly and verify that the station
has been operated as required).
747 C.F.R. § 73.3526(a).
8See 47 C.F.R. § 1.1914.
9See 47 C.F.R. § 73.3526(c)(1).
1047 C.F.R. §§ 73.1560(a)(1) and 73.3526(c).
1112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999); 47 C.F.R. §1.80.
12See Twenty-One Sound Communications, Inc., Forfeiture
Order, 20 FCC Rcd 12497 (Enf. Bur. 2005).
1347 U.S.C. § 503(b)(2)(D).
1447 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314,
1.80, 73.1560(a)(1) and 73.3526(a).
8See 47 C.F.R. § 1.1914.