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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
ASA Broadcasting, Inc. File Number EB-07-TP-195
)
Licensee of Station WXYB NAL/Acct. No.200832700013
)
Indian Rocks Beach, FL FRN 0000017558
)
Facility ID #2918
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 8, 2008
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that ASA Broadcasting, Inc. ("ASA"), licensee of AM station WXYB,
Indian Rocks Beach, FL, apparently willfully and repeatedly violated
Section 73.1745(a) of the Commission's Rules ("Rules") by failing to
go off the air post sunset as specified in its station authorization.
We conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that ASA is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On September 27, 2007, in response to a complaint, agents from the
Commission's Tampa Office of the Enforcement Bureau ("Tampa Office")
monitored station WXYB in Indian Rocks Beach, FL from approximately
5:30 PM until 9:00 PM. The agents observed that the station remained
on the air during this entire period of time. Station WXYB is
authorized only for daytime operations and local sunset on this date
was 7:23 PM.
3. On October 1, 2007, agents from the Tampa Office again monitored the
station's transmissions from approximately 5:30 PM until 9:00 PM. The
agents observed that the station remained on the air during this
entire period of time. Local sunset on this date was 7:18 PM.
4. On December 7, 2007, agents from the Tampa Office, accompanied by the
President and Chief Operator of ASA, inspected station WXYB. Although
they were able to reduce power, neither the Chief Operator nor the
President was able to take the station off the air during the
inspection. Both were unaware of this equipment malfunction or that
the station was operating after sunset. The Chief Operator was unable
to produce any station logs for the station. On December 10, 2007, the
Chief Operator contacted the Tampa Office and stated that the station
was still not going off the air at sunset but was reducing power at
sunset.
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 73.1745(a) of the Rules requires 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 WXYB is only authorized to operate during the day.
On September 27 and October 1, 2007, agents from the Tampa Office
observed that station WXYB remained on the air post sunset local time.
The agents monitored station WXYB's transmissions from approximately
5:30 until 9:00 PM on both dates and observed that the station
remained on the air the entire time. On December 7, 2007, ASA was
unable to take station WXYB off the air. On December 10, 2007, ASA
stated it was still unable to take its station off the air at sunset.
7. Based on the evidence before us, we find that ASA apparently
willfully and repeatedly violated Section 73.1745(a) of the Rules by
failing to go off the air post sunset as specified in the station
authorization.
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 unauthorized emissions 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 ASA is apparently liable for a $4,000
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, ASA Broadcasting, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of four thousand
dollars ($4,000) for violations of Section 73.1745(a) 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, ASA 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.
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/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.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Tampa 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. 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 ASA Broadcasting, 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: 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: 73.1745(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, 73.1745(a).
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Federal Communications Commission
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Federal Communications Commission