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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
EB-06-NF-016
HRN Broadcasting, Inc )
NAL/Acct. No.
Licensee of Station WZGM ) 200732640003
Black Mountain, NC ) FRN 0010020162
Facility ID # 40654 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released March 15, 2007
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 HRN Broadcasting, Inc. ("HRN"), licensee of AM broadcast station
WZGM in Black Mountain, North Carolina, apparently willfully and
repeatedly violated Sections 73.1745(a) and 73.3526 of the
Commission's Rules ("Rules") by operating with power other than as
specified and made a part of its license and by failing to make
available a public inspection file. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that HRN
is apparently liable for a forfeiture in the amount of fourteen
thousand dollars ($14,000).
II. BACKGROUND
2. In response to a complaint that HRN was not reducing its transmitting
power during nighttime hours, on February 27 and 28, 2006, an agent of
the Commission's Norfolk Office of the Enforcement Bureau ("Norfolk
Office") made on-scene signal strength measurements of station WZGM's
transmissions in Asheville, North Carolina. The measurements made
during the daytime did not change from the measurements made after
sunset, so HRN failed to reduce transmitter output power after sunset
on both days. On March 1, 2006, the agent made signal strength
measurements in the same locations as those made on February 27 and
28, 2006. Immediately thereafter the agent, and the manager of station
WZGM, went to the transmitter site and, using the "direct method" of
calculating transmitter output power, determined that WZGM was
transmitting with 8450 watts. By comparing the measured field
strengths with the calculated transmitter output power, the agent
demonstrated that HRN transmitted with over 8000 watts of power after
sunset on February 27 and 28, 2006.
3. In addition, on March 1, 2006, during normal business hours, the agent
visited station WZGM's main studio location in Ashville, North
Carolina and requested to inspect the station's public inspection
file. The station was unable to produce a public inspection file or
any of the file's contents. Station WZGM's manager admitted that the
public inspection file was not at the station's main studio in
Asheville, North Carolina, but was retained at HRN's home office in
Lincolnton, North Carolina.
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 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times or with modes or power, other than those specified
and made a part of the license, unless otherwise provided in this
part. HRN's station license authorizes operation with 10,000 watts
daytime, 77 to 42 watts, from 6:15 p.m. (sunset) to 8:15 p.m. post
sunset (PSSA nighttime) and 56 watts nighttime, powers. On February 27
and 28, 2006, station WZGM operated after sunset with over 8000 watts
of power. Based on the information before us, we find that HRN
willfully and repeatedly violated Section 73.1745(a) of the Rules by
operating after sunset with more power than authorized.
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(b) of the Rules states that the public
inspection file shall be maintained at the main studio of the station.
Section 73.3526(c)(1) of the Rules requires that the file shall be
available for public inspection at any time during regular business
hours. During normal business hours on March 1, 2006, in response to
a request to inspect the station's public inspection file, station
WZGM was unable to make available a public inspection file or any of
the required contents of the file. There was no evidence that the
station had ever maintained a public inspection file at the main
studio. The station manager admitted that the public inspection file
had always been kept at HRN's home office in Lincolnton, North
Carolina, 73 miles from the community of license. Based on the
information before us, we find that HRN willfully and repeatedly
violated Section 73.3526 of the Rules by failing to make available a
public inspection file at the main studio location.
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 operating at times or modes or powers other
than those specified and made part of the license is $4,000 and for
violation of the public file rule 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. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that HRN is apparently liable for a $14,000
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, HRN Broadcasting, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fourteen thousand dollars ($14,000) for violations of
Sections 73.1745(a) and 73.3526 of the Rules.
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, HRN 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, Norfolk Office,
1457 Mount Pleasant Road, Suite #113, Chesapeake, VA 23322 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 HRN Broadcasting, Inc. at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Luther Bolden
Resident Agent
Norfolk Office
South Central Region
Enforcement Bureau
47 C.F.R. SS 73.1745(a) and 73.3526(c)(1).
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 73.1745(a).
47 C.F.R. S 73.3526(a)(2).
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(c)(1).
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, 73.1745(a),
73.3526.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
2
Federal Communications Commission