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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
First Baptist Church, Inc. ) File Number: EB-06-TP-171
Licensee of Station WAKJ ) NAL/Acct. No.: 200832700003
DeFuniak Springs, FL ) FRN: 00074611536
Facility ID # 68290 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 28, 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 First Baptist Church, Inc. ("First Baptist"), licensee of
non-commercial FM station WAKJ, DeFuniak Springs, FL, apparently
willfully and repeatedly violated Sections 11.35 and 73.1125(a) of
the Commission's Rules ("Rules") by failing to install the required
Emergency Alert System ("EAS") equipment and failing to maintain
full-time managerial and staff personnel at the main studio during
normal business hours. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that First Baptist is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000).
II. BACKGROUND
2. On August 9, 2006, agents from the Commission's Tampa Office of the
Enforcement Bureau ("Tampa Office") were unable to inspect station
WAKJ's main studio in DeFuniak Springs, Florida during normal business
hours, because it was unattended. The agents telephoned First Baptist
and were told that the station's General Manager, the only person with
a key to the station's transmitter location, was away for the week.
First Baptist arranged for a janitor to let the agents into the main
studio. A few days later, agents informed the General Manager that
main studios must be staffed full-time by managerial and staff
personnel during normal business hours.
3. On April 3, 2007, an agent from the Commission's Atlanta Office of the
Enforcement Bureau was unable to inspect the station's main studio
during normal business hours, because the studio was unattended.
4. On May 15, 2007, agents from the Tampa Office inspected the main
studio of station and found that the station had no EAS equipment
installed. The General Manager stated that he was unaware that
non-commercial FM stations were required to have installed EAS
equipment. The station did have an uninstalled EAS encoder/decoder in
a box at the main studio. The General Manager, who is also the Chief
Operator, stated that he is usually the only person from the station
present at the main studio between the hours of 8 A.M. and 5 P.M.
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) 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.
6. Section 11.35(a) of the Rules requires Broadcast stations to be
responsible for ensuring that ... EAS Encoders and EAS Decoders ...
used as part of the EAS are installed so that the monitoring and
transmitting functions are available during the times the stations are
in operation. Section 11.11(a) of the Rules states that as of January
1, 1997, FM stations are required to have an EAS encoder and decoder.
During the May 15, 2007 inspection of the station, station WAKJ was in
operation, and no EAS equipment was installed at the station. The
General Manager stated that he didn't know that non-commercial FM
stations were required to have installed EAS equipment. However, he
was aware that an uninstalled EAS encoder/decoder was sitting in a box
in the main studio.
7. Section 73.1125(a) of the Rules requires FM stations to maintain a
main studio. "A station must equip the main studio with production and
transmission facilities that meet applicable standards, maintain
continuous program transmission capability, and maintain a meaningful
management and staff presence." The Commission has defined a minimally
acceptable "meaningful presence" as full-time managerial and full-time
staff personnel. On August 9, 2006 and April 3, 2007, agents were
unable to inspect the main studio of station WAKJ, because it was
unattended. The General Manager was informed of the main studio
staffing requirements in August 2006. On May 15, 2007, the station's
General Manager stated that he is typically the only station
representative at the main studio during normal business hours.
8. Based on the evidence before us, we find that First Baptist
apparently willfully and repeatedly violated Sections 11.35 and
73.1125(a) of the Rules by failing to install the required EAS
decoding/receiving equipment and failing to maintain a full-time
managerial and staff presence at the station's main studio.
9. 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 not installing the required EAS equipment
is $8,000 and the base forfeiture amount for violation of the main
studio rules is $7,000. 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
First Baptist is apparently liable for a $15,000 forfeiture.
IV. ORDERING CLAUSES
10. 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, First Baptist Church, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen thousand
dollars ($15,000) for violation of Sections 11.35 and 73.1125(a) of the
Rules.
11. 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, First Baptist Church,
Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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 First Baptist Church, Inc. 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:S: 11.35, 73.1125(a).
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(a).
47 C.F.R. S: 11.11(a). Class D non-commercial educational FM stations are
required to have EAS decoders installed and operational. See 47 C.F.R.
S:S: 11.11(a), 11.11(b). Station WAKJ, however, is a Class A
non-commercial FM station.
Main Studio and Program Origination Rules, Memorandum Opinion and Order,
3 FCC Rcd 5024, 5026 (1988).
Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order, 6
FCC Rcd 3615, 3616 (1991), clarified 7 FCC Rcd 6800 (1992).
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)(D).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35,
73.1125(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission