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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
D-Mitch Broadcasting, Inc. ) File Number: EB-08-AT-0072
Licensee of Radio Station WBSC(AM) ) NAL/Acct. No.: 200832480002
Bennettsville, SC ) FRN: 0005003199
Facility ID # 5214 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 2, 2008
By the District Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that D-Mitch Broadcasting, Inc. ("D-Mitch"), licensee of station WBSC
(AM), in Bennettsville, South Carolina, apparently willfully and
repeatedly violated Sections 11.35(a) and 73.3526 of the Commission's
Rules ("Rules") by failing to maintain operational Emergency Alert
System ("EAS") equipment and failing to maintain and make available a
complete public inspection file. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
D-Mitch is apparently liable for a forfeiture in the amount of twelve
thousand dollars ($12,000).
II. BACKGROUND
2. On April 8, 2008, agents of the Commission's Atlanta Office of the
Enforcement Bureau ("Atlanta Office") conducted an inspection of AM
radio station WBSC in Bennettsville, South Carolina. Agents from the
Atlanta Office, accompanied by the station's general manager and
engineer, inspected the station's main studio during normal business
hours. The agents found that there was no EAS equipment installed at
the station. There were no EAS logs indicating that the station had
ever had operational EAS equipment installed at the station. The
general manager and engineer admitted that the station had never
installed EAS equipment. They stated that the station had not
installed emergency equipment since the station removed its Emergency
Broadcast System ("EBS") equipment.
3. During the inspection, the agents requested to inspect the station's
public inspection file.
The public inspection file did not contain any quarterly issues programs
lists. The general manager was only able to provide a file of flyers and
announcements of local events. He stated that he was not aware of the
requirement to compile and maintain issues programs lists and admitted
that the station had not been compiling the lists.
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 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.
5. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders and attention signal generating
and receiving equipment is installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. On April 8, 2008, station WBSC had no EAS
equipment installed at the main studio. The general manager and
engineer admitted that the station had never installed EAS equipment.
Based on the evidence before us, we find that D-Mitch apparently
violated Section 11.35(a) of the Rules by failing to install
operational EAS equipment.
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(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 a list of
programs that have provided the station's most significant treatment
of community issues during the preceding three month period
("issues/programs list") to be placed in the public inspection file.
The list shall include a brief narrative describing what issues were
given significant treatment and the programming that provided this
treatment. The description of the programs shall include, but shall
not be limited to, the time, date, duration, and title of each program
in which the issue was treated. On April 8, 2008, in response to a
request to inspect the station's public inspection file during normal
business hours, station WBSC was unable to produce any issues/programs
lists, and there was no evidence that the station had ever compiled or
maintained such lists in the public inspection file. Although the
station maintained a folder of flyers and local announcements, this
folder did not include the time or date when the information was
aired, the name of the program, or a description of the local issues.
The station manager admitted that he was unaware of the requirement to
compile and maintain issues/programs lists. Based on the evidence
before us, we find that D-Mitch apparently willfully violated Section
73.3526 of the Rules by failing to make available a complete public
inspection file, and apparently willfully and repeatedly violated
Section 73.3526 of the Rules by failing to maintain a complete public
inspection file.
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 failing to maintain operational EAS
equipment is $8,000. and failing to maintain quarterly issues/programs
lists in the Public File is $10,000. Because station WBSC's public
inspection file contained a portion of the items required, a downward
adjustment of the base amount 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 D-Mitch is apparently liable for a
$12,000 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, D-Mitch Broadcasting, Inc.
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twelve thousand dollars ($12,000) for violations of
Sections 11.35(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, D-Mitch 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/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.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Atlanta Office,
3575 Koger Blvd., Suite 320, Duluth, GA, 30096 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. 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 D-Mitch Broadcasting, Inc. 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.
47 U.S.C. S: 503(b).
The Emergency Broadcast System was the predecessor to EAS. Stations were
required to replace their EBS equipment with operational EAS equipment
after January 1, 1997. See 47 C.F.R. S: 11.12.
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: 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.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission