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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-07-OR-141
Frank Rackley, JR. )
NAL/Acct. No.
Licensee of Station WNBN-AM ) 200832620003
Meridian, MS ) FRN 0010301059
Facility ID # 22294 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 22, 2008
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 Frank Rackley, Jr., licensee of station WNBN-AM, in Meridian,
Mississippi, apparently willfully and repeatedly violated Sections
73.1350(a) and 73.1745(a) of the Commission's Rules ("Rules") by
operating from an unauthorized location and operating at a power level
in excess of that authorized by his license. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Mr. Rackley is apparently liable for a forfeiture in the amount
of eight thousand dollars ($8,000).
II. BACKGROUND
2. On December 7, 2007, the Commission's New Orleans Office of the
Enforcement Bureau ("New Orleans Office") received a complaint
concerning station WNBN-AM. The complaint, among other things, alleged
that station WNBN-AM was operating over power at night.
3. On January 14, 2008, an agent from the New Orleans Office monitored
station WNBN-AM's signal from 4:45 PM-CST until 6:00 PM-CST and did
not observe any change in transmitter power. Station WNBN-AM's station
authorization requires it to reduce power from 2.5kW to 330 watts at
local sunset time. During the month of January, local sunset time was
5:15 PM-CST.
4. On January 15, 2008, an agent from the New Orleans Office again
monitored station WNBN-AM's signal from 4:45 PM-CST until 8:45 PM-CST
and did not observe any change in transmitter power.
5. On January 16, 2008, agents from the New Orleans Office determined the
station was broadcasting from coordinates N32DEG 22' 54" x W088DEG 40'
12". The station is licensed to broadcast from coordinates N32DEG 21'
42" x W088DEG 37' 26".
6. On January 16, 2008, agents from the New Orleans Office, accompanied
by Mr. Rackley, inspected the main studio of station WNBN-AM. Mr.
Rackley stated the station operated at its full power of 2.5kW until
it was manually signed off the air at 9:00 PM-CST. Mr. Rackley also
stated that the station had transmitted from its present location for
years. Mr. Rackley was familiar with the coordinates listed on his
license and stated that he had originally planned to place the
transmitter there but that the deal for that location fell through.
III. DISCUSSION
7. 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.
8. Section 73.1350(a) of the Rules states each licensee is responsible
for maintaining and operating its broadcast station in a manner which
complies with the technical rules set forth elsewhere in this part and
in accordance with the terms of the station authorization. On January
16, 2008, agents from the New Orleans Office determined station
WNBN-AM was broadcasting from coordinates N32DEG 22' 54" x W088DEG 40'
12". The station is licensed to broadcast from coordinates N32DEG
21' 42" x W088DEG 37' 26". The licensee admitted transmitting from its
current location for years.
9. 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. Station WNBN-AM is authorized to operate at 2.5kW during the
day and is required to reduce power to 330 watts at local sunset time.
On January 14 and 15, 2008, an agent from the New Orleans Office did
not observe a reduction in power at local sunset time. During the
inspection of January 16, 2008, the licensee of WNBN-AM confirmed the
station did not reduce power at local sunset time but, rather,
operated at full power of 2.5kW until it was manually signed off the
air at 9:00 PM-CST.
10. Based on the evidence before us, we find that Mr. Rackley apparently
willfully and repeatedly violated Sections 73.1350(a) and 73.1745(a)
of the Rules by failing to broadcast from its authorized location and
operating at a power level in excess of that authorized by its
license.
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 construction or operation at unauthorized
locations is $4,000 and the base forfeiture amount for exceeding power
limits is $4,000. 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 Mr.
Rackley is apparently liable for a ($8,000) 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, Frank Rackley, JR. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
eight thousand dollars ($8,000) for violations of Sections 73.1350(a)
and 73.1745(a) 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, Frank Rackley, JR. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment[s] by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, New Orleans
Office, 2424 Edenborn, Suite 460, Metairie, LA 70001 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. 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 Frank Rackley, JR., at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Leroy Hall
District Director
New Orleans Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.1350(a), 73.1745(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: 73.1350(a).
47 C.F.R. S: 73.1745(a).
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, 73.1350(a),
73.1745(a).
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Federal Communications Commission
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Federal Communications Commission