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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Ace Broadcasting, Inc. ) File Number EB-06-OR-055
Licensee of Expired Station WQST-AM ) NAL/Acct. No. 200732620001
Forest, Mississippi ) FRN 0009643206
Facility ID #1652 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 13, 2006
By the District Director, New Orleans Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Ace Broadcasting, Inc. ("Ace"), licensee of expired station
WQST-AM, in Forest, Mississippi, apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended,
("Act") by engaging in unauthorized operations of its station after
its license expired. We conclude, pursuant to Section 503(b) of the
Act, that Ace is apparently liable for a forfeiture in the amount of
four thousand dollars ($4,000).
II. BACKGROUND
2. Ace's license authorizing it to operate station WQST-AM on frequency
850 kHz expired on June 1, 2004. Ace filed an application for renewal
on April 18, 2005, however, as of December 13, 2006, that application
had not been granted. Also, according to Commission records, Ace has
not sought and has not been granted a Special Temporary Authority
("STA") to operate its station after June 1, 2004, pending its license
renewal.
3. On September 20, 21 and 22, 2006, an agent from the Commission's New
Orleans Office of the Enforcement Bureau ("New Orleans Office")
monitored 850 kHz in the vicinity of Forest, Mississippi and listened
to a station broadcasting programming. In each instance, the station
identified itself using the call sign WQST. On September 20, 2006, an
agent from the New Orleans Office located the source of the
transmissions on 850 kHz to the transmitter site for expired station
WQST-AM.
4. On September 22, 2006, an agent from the New Orleans Office conducted
an inspection of expired station WQST-AM. During the inspection, the
General Manager stated that the station was operating in a
non-directional mode from one antenna structure and had authorization
to do so. However, he could not produce a current authorization for
the station.
III. DISCUSSION
5. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. Section 301 of the Act requires that no person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio within the United States except under and in
accordance with the Act and with a license. Ace's authorization to
operate station WQST-AM expired on June 1, 2004. According to
Commission records, Ace has not been granted an STA, nor has its
license been renewed. On September 20, 21 and 22, 2006, an agent from
the New Orleans Office monitored station WQST-AM's radio broadcasts.
On September 22, 2006, an agent also inspected the station's
operational studio. Based on the evidence before us, we find that Ace
apparently willfully and repeatedly violated Section 301 of the Act by
engaging in unauthorized operations after its license expired.
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 construction and/or operation without an
instrument of authorization for the service is $10,000. 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
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. In this case, Ace continued
operations for at least twenty seven months after it license expired.
Nevertheless, because, it had previously been licensed to operate
station WQST-AM and had submitted a renewal with the Commission, this
transgression is not comparable to "pirate" wireless operations, which
typically have been subject to forfeitures of approximately $10,000.
Accordingly, we believe a downward adjustment to $4,000 for violation
of Section 301 of the Act is appropriate. Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that Ace is apparently liable for a $4,000
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, Ace Broadcasting, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violation of Section 301
of the Act.
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, Ace Broadcasting, 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, New Orleans
Office, 2424 Edenborn, Suite 460, New Orleans, Louisiana, 70001 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.
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 Ace Broadcasting, Inc., at its address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Leroy Hall
District Director
New Orleans Office
South Central Region
Enforcement Bureau
The license to operate station WQST-AM expired on June 1, 2004.
47 U.S.C. S 301.
47 U.S.C. S 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission