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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Star Power Communications Corporation ) EB-07-AT-177
Licensee of Radio Station WIQR(AM) ) NAL No.: 200832480001
Prattville, AL ) FRN: 0009886755
Facility ID: 8544 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 5, 2007
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 Star Power Communications Corporation ("Star Power"), licensee of
station WIQR(AM), in Prattville, Alabama, apparently willfully and
repeatedly violated Sections 11.35(a), 73.3526, and 73.49 of the
Commission's Rules ("Rules") by failing to maintain operational
Emergency Alert System ("EAS") equipment, failing to maintain and make
available a complete public inspection file, and failing to maintain
an effective locked enclosure around the base of one of the station
towers. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Star Power is apparently liable
for a forfeiture in the amount of nineteen thousand dollars
($19,000).
II. BACKGROUND
2. On August 30, 2007, agents of the Commission's Atlanta Office of the
Enforcement Bureau ("Atlanta Office") conducted an inspection of the
AM directional station, WIQR, in Prattville, Alabama during normal
business hours with the station's general manager. The agents found
that the station's EAS encoder/decoder unit was not operational,
because it was unplugged from a power source. The station's general
manager was unaware that the EAS unit was unplugged and stated that
the station's engineer must have unplugged it when he was last there.
When plugged back in, no one at the station was able to send an EAS
test from the unit. The agents were unable to retrieve any
electronically stored data from the unit. The station also had no EAS
logs, and the last EAS printout was an alert from the National Weather
Service dated May 2, 2007.
3. During the inspection, the agents requested to inspect the station's
public inspection file. The station provided a public inspection file
that did not contain any quarterly issues programs lists for any
quarter. The general manager and office manager stated that they were
unaware of this requirement and admitted that the station had not been
compiling quarterly issues programs lists.
4. Finally, the agents observed one of the walls of the plastic fence
surrounding one of the station's towers lying on the ground, allowing
ready access to the base of the tower. The agents observed that tall
grass had grown up through the downed portion of the fence. This tower
had radio frequency potential at the base. The general manager stated
that he was going to replace the plastic fence with a wooden fence but
that he hadn't had chance to do it.
5. On October 19, 2007, the station's engineer contacted an agent from
the Atlanta Office and provided additional information. He stated that
he had not visited the station in several months. He also stated that
the plastic fence around the tower was installed in 2004 or 2005.
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 thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of the Act 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.
7. Section 11.35(a) of the Rules states that "EAS participants 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 transmitting functions are available
during the times the stations and systems are in operation." On August
30, 2007, station WIQR's EAS encoder/decoder was not operational,
because it was unplugged from the power source. The station's general
manager stated that the station's engineer must have unplugged it. The
engineer later stated that he had not visited the station in several
months. Once plugged in, no one at the station could demonstrate that
the unit was operational, and there was no evidence that an EAS test
had been received or sent since May 2, 2007.
8. 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 August 30,
2007, in response to a request to inspect the station's public
inspection file during normal business hours, the station was unable
to make available any quarterly issues/programs lists. The station's
general manager and office manager stated that they did not know the
lists were required and admitted that they had not compiled the lists.
9. Section 73.49 of the Rules states that "Antenna towers having radio
frequency potential at the base...must be enclosed within effective
locked fences or other enclosures." On August 30, 2007, one side of
the plastic fencing around one of the station's towers was lying on
the ground, allowing ready access to the base of the tower. Agents
observed tall grass growing through the downed portion of the fence,
thereby demonstrating that the fence had been down for more than one
day. This tower was energized during operating hours. The station's
general manager was aware that temporary plastic fencing surrounded
one of its towers and intended to replace it. However, according to
the station's engineer, the plastic fencing had been in place for more
than two years.
10. Based on the evidence before us, we find that Star Power apparently
willfully and repeatedly violated Sections 11.35(a), 73.3526, and
73.49 of the Rules by failing to maintain an operational EAS unit,
failing to maintain a complete public inspection file, and failing to
maintain an effective locked enclosure around the energized base of
one of the station's towers. We find that Star Power also apparently
willfully violated Section 73.3526 of the Rules by failing to make
available a complete public inspection file.
11. 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 failing to maintain an operational EAS
system is $8,000; violation of the public inspection file rule is
$10,000; and failing to maintain an effective tower enclosure at the
base of the tower is $7,000. However, because station WIQR's public
inspection file contained a portion of the required items, a downward
adjustment of the base forfeiture amount for this violation to $4,000
is warranted. In assessing the monetary forfeiture amount, we must
also take into account the statutory factors set forth in Section
503(b)(2)(E) 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 of the Rules,
and the statutory factors to the instant case, we conclude that Star
Power is apparently liable for a $19,000 forfeiture.
IV. ORDERING CLAUSES
12. 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, Star Power Communications
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of nineteen thousand dollars ($19,000) for
violations of Sections 11.35(a), 73.3526 and 73.49 of the Rules.
13. 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, Star Power Communications
Corporation SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
14. 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.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Atlanta Office,
3575 Koger Blvd., Suite 320, Duluth, Georgia, 30096 and must include
the NAL/Acct. No. referenced in the caption.
16. 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.
17. 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
18. 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 Star Power Communications Corporation
at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Douglas G. Miller
District Director
Atlanta Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 11.35(a), 73.3526(e)(12), 73.49.
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: 73.3526(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.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35(a),
73.3526, 73.49.
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission