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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Cumulus Licensing, LLC
) File Number: EB-06-TP-082
Licensee of Station
WHBX ) NAL/Acct. No.: 200732700006
Tallahassee, FL ) FRN: 0002834810
Facility ID # 28168 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 3, 2007
By the District Director, Tampa Field Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Cumulus Licensing, LLC ("Cumulus"), licensee of station WHBX,
Tallahassee, Florida, apparently willfully violated Section 73.3526 of
the Commission's Rules ("Rules") by failing to make available a
complete public inspection file. We also find that Cumulus apparently
willfully and repeatedly violated Sections 11.35(a) and 73.1350(b) of
the Rules by failing to maintain an Emergency Alert System ("EAS")
capable of transmitting an EAS test and failing to maintain a control
system that provides personnel the capability to control continuously
the transmitter. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Cumulus is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000).
II. BACKGROUND
2. On April 5, 2006, agents from the Commission's Tampa Office of the
Enforcement Bureau conducted an inspection of station WHBX at its main
studio in Tallahassee, Florida. The agents found that the station's
EAS equipment was installed, but not fully operational. At the time of
inspection, the station was unable to run a Required Weekly Test
(RWT). The required EAS header and EOM (End of Message) codes did not
go out over the air. The EAS equipment printed out an illegible
receipt from the failed RWT test. The station's most recent legible
required EAS transmit test receipt was dated August 25, 2004. Other
receipts were available, but they were illegible because the EAS unit
was printing backwards and over the same line repeatedly. The station
also failed to maintain an EAS log. Station WHBX's transmitter is
located at a remote site. At the time of the inspection, there was no
equipment to allow station personnel to turn the transmitter off from
the main studio. The station engineer stated that the equipment was
taken out of service 2 . weeks prior to the inspection. When the
agents asked to inspect the station's public inspection file during
regular business hours, the station could not produce a complete file.
The file contained no Radio Issues/Program lists from any quarter. The
station engineer and operations manager stated that the Public Service
Announcements ("PSAs") from 2002 until the 1st Quarter 2006 doubled as
the station's Issues/Program lists.
III. DISCUSSION
3. 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.
4. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders and Attention Signal generating
and receiving equipment are installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. Broadcast stations must also determine
the cause of any failure to receive required monthly and weekly EAS
tests, and must indicate in the station's log why any required tests
were not received and when defective equipment is removed and restored
to service. On April 15, 2006, station WHBX's EAS equipment appeared
to be installed properly, but the transmit function of its equipment
was not operational when the station was in operation. The required
EAS header and EOM codes were not transmitted over the air when a RWT
was performed during the April 5, 2006 inspection. The station
engineer who attempted to perform the RWT was familiar with the
equipment and how to operate it, but he could not get the EAS
equipment to transmit properly. The station failed to maintain a log
stating when required EAS tests were conducted or when the EAS
equipment was no longer able to transmit a test. There was also no
evidence that the station transmitted a required weekly or monthly EAS
tests after August 25, 2004. Although the station engineer was
surprised that the RWT conducted during the inspection failed, if the
station had maintained an EAS log or reviewed the printed test
receipts, the station engineer would have been aware the station's EAS
equipment was unable to transmit an EAS test.
5. Section 73.1350(b)(2) of the Rules requires that transmitter control
personnel must have the capability to turn the transmitter off at all
times. If the personnel are at a remote location, the control system
must provide this capability continuously or must include an alternate
method of acquiring control that can terminate operations within 3
minutes. Station WHBX's transmitter is located at a remote site more
than 5 minutes travel time away from the remote control point. There
was no equipment installed at the transmitter site that would allow
personnel located at the studio to control the transmitter. The
station engineer admitted that the equipment had been taken out of
service approximately 2 . weeks prior to the inspection on April 5,
2006. There was no log to reflect when the equipment had been removed.
On April 5, 2006, there was no capability to turn the transmitter off
remotely during a time the station was in operation. Rama admitted
that this capability was not available for approximately 2 . weeks
prior to April 5, 2006.
6. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection, a file containing materials listed in
that section. Section 73.3526(c)(1) of the Rules states that the file
shall be available for public inspection at any time during regular
business hours. Section 73.3526(e)(12) of the Rules requires licensees
to place in the public inspection file, for each calendar quarter, a
list of programs that have provided the station's most significant
treatment of community issues during the preceding three month period.
This list is known as the radio Issues/Programs list. On April 5,
2006, in response to a request made to inspect the station's public
file during normal business hours, station WHBX was unable to produce
any copies of the station's radio Issues/Programs lists for any
quarter. Copies of PSAs do not qualify as Issues/Programs lists. There
was no evidence that the lists were ever maintained in the public
file.
7. Based on the evidence before us, we find that Cumulus apparently
willfully violated Section 73.3526 of the Rules by failing to make
available a complete public inspection file. Based on the evidence
before us, we also find that Cumulus apparently willfully and
repeatedly violated Sections 11.35(a) and 73.1350(b)(2) of the Rules
by failing to maintain an EAS capable of transmitting EAS tests and
failing to maintain a control system that provides personnel the
capability to continuously control the transmitter.
8. 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 violations of EAS equipment not being
installed or operational is $8,000, the base forfeiture amount for
violations of transmitter control and metering requirements is $3,000
and the base forfeiture amount for violation of public file rules 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. Because
the public file was partially complete, we conclude a reduction in the
base forfeiture amount to $4,000 is appropriate. Applying the
Forfeiture Policy Statement, Section 1.80, and the statutory factors
to the instant case, we conclude that Cumulus is apparently liable
for a $15,000 forfeiture.
IV. ORDERING CLAUSES
9. 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, Cumulus Licensing, LLC is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen thousand
dollars ($15,000) for violations of Sections 11.35(a), 73.1350(b)(2) and
73.3526 of the Rules.
10. 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, Cumulus Licensing, LLC
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
11. 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.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Tampa Field
Office, 2203, N. Lois Ave., Suite 1215, Tampa, FL 33607 and must
include the NAL/Acct. No. referenced in the caption.
13. 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.
14. 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.
15. 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 Cumulus Licensing, LLC. at its address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 C.F.R. S 73.3526.
47 C.F.R. SS 11.35(a), 73.1350(b)(2).
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."
47 C.F.R. S 11.35(b).
47 C.F.R. S 73.3526(a)(2).
47 C.F.R. S 73.3526(c)(1).
47 C.F.R. S 73.3526(e)(12).
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. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 11.35(a),
73.1350(b)(2), 73.3526.
See 47 C.F.R. S 1.1914
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Federal Communications Commission
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Federal Communications Commission