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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Perihelion Global, Inc. ) File Number: EB-08-OR-0013
Licensee of WTKN-AM ) NAL/Acct. No. 200832620005
Corinth, Mississippi ) FRN: 0016367518
Facility ID # 31411 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 9, 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 Perihelion Global, Inc. ("Perihelion"), licensee of station
WTKN-AM, in Corinth, Mississippi, apparently willfully and repeatedly
violated Sections 73.49, 73.1125(a) and 73.1201(a)(2) of the
Commission's Rules ("Rules") by failing to enclose its antenna
structure within an effective locked fence or other enclosure, failing
to maintain a main studio, and failing to transmit the station
identification. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Perihelion is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000).
II. BACKGROUND
2. On February 6, 2008, the Commission's New Orleans Office of the
Enforcement Bureau ("New Orleans Office") received a complaint
concerning station WTKN-AM, alleging multiple violations, including
having no main studio. On February 8 and 11, 2008, an agent from the
New Orleans Office called Perihelion and left messages to be contacted
to schedule an inspection, but the agent's calls were never returned.
3. On February 25, 2008, an agent from the New Orleans Office monitored
WTKN-AM from 7 PM-CST to 9 PM-CST. During this time, the station did
not air any of the required station identifications.
4. On February 26, 2008, an agent from the New Orleans Office inspected
the transmitter site for station WTKN-AM. The agent observed a large
hole in the locked gate for the protective fence surrounding the
WTKN-AM antenna structure, which had radio frequency potential at its
base. This hole allowed easy access to the antenna structure. The
agent also monitored the station throughout the day, and the station
did not broadcast any of the required station identifications.
5. Still on February 26, 2008, the agent attempted to locate and inspect
the main studio for station WTKN-AM. The agent called the local number
for station WTKN-AM and left messages asking to be called back.
However, no employee from station WTKN-AM ever returned the agent's
calls. The agent also contacted the owner of the land on which the
transmitter is located, but he was unaware of a main studio address or
a contact phone number for anyone locally employed by station WTKN-AM.
The only known local address for the station was that of the
transmitter site. The agent observed a small building in the same
pasture as the antenna structure located within the antenna
structure's protective fence. However, this building was not staffed
by any employees and was accessible only through the hole in the
antenna structure's protective fence. The transmitter site and
building were not visible from the main road, there were no signs for
the station on the building, fence, or main road, and there was no
path from the private driveway to the building.
6. On February 26, 2008, the attorney for station WTKN-AM requested to
modify a previously submitted Special Temporary Authority ("STA")
request. The attorney sought permission for station WTKN-AM to operate
without a main studio. In this communication, the attorney stated the
main studio for WTKN-AM is located at the transmitter site and that
weather had rendered the access path to the main studio impassable a
majority of the time.
7. On February 27, 2008, the agent from the New Orleans Office visited
the transmitter site again. The agent observed the same hole in the
locked gate for the protective fence surrounding the antenna structure
as had been observed the previous day. The agent monitored station
WTKN-AM from 8:30 AM-CST to 11:15 AM-CST and observed that the station
did not broadcast the required station identifications.
8. On February 28, 2008, station WTKN-AM's attorney called the New
Orleans Office and spoke to the agent that attempted to inspect
station WTKN-AM. This was the first contact the agent had with anyone
representing station WTKN-AM.
III. DISCUSSION
9. 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.
10. Section 73.49 of the Rules requires antenna towers having radio
frequency potential at the base to be enclosed within effective locked
fences or other enclosures. On February 26 and 27, 2008, an agent from
the New Orleans Office observed a large hole in the gate of the locked
fence surrounding the antenna structure for station WTKN-AM. This hole
was large enough to provide easy access to the antenna structure. The
antenna structure had radio frequency potential at its base.
11. Section 73.1125(a) of the Rules requires broadcast 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 February 26, 2008, an agent from the
New Orleans Office attempted to inspect station WTKN-AM's main studio,
but was unable to locate the main studio or contact any employees for
the station. The agent subsequently learned that the station's main
studio was located at the transmitter site. However, the only building
at the transmitter site was unstaffed during normal business hours, so
the agent was unable to determine whether it was equipped with the
required production and transmission facilities. The agent was unable
to find any evidence that station WTKN-AM employed any local staff in
the area. The building was also inaccessible to the public, because it
was located in a pasture and was not visible from the road. There were
no signs on the building or the road that would identify the building
as the main studio, and there was no path going from the private
driveway to the building. Finally, the building was located within the
station's locked antenna structure fence. The attorney for the station
stated that the main studio was inaccessible to the public a majority
of the time due to weather conditions.
12. Section 73.1201(a)(2) of the Rules requires broadcast station
identification announcements to be made hourly, as close to the hour
as feasible, at a natural break in program offerings. An agent from
the New Orleans Office monitored station WTKN-AM on February 25, 26,
and 27, 2008 for several hours. Station WTKN-AM did not give station
identifications at any time while the agent was monitoring.
13. Based on the evidence before us, we find that Perihelion apparently
willfully and repeatedly violated Sections 73.49, 73.1125(a) and
73.1201(a)(2) of the Rules by failing to enclose the antenna
structure within an effective locked fence or other enclosure, failing
to maintain a main studio, and failing to transmitting the station
identification.
14. 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 enclose the antenna structure
within an effective locked fence or other enclosure is $7000, the base
forfeiture amount for failing to maintaining a main studio is $7000
and the base forfeiture amount for failing to transmitting the station
identification $1,000. 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
Perihelion is apparently liable for a ($15,000) forfeiture.
IV. ORDERING CLAUSES
15. 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, Perihelion Global, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of
Sections 73.49, 73.1125(a) and 73.1201(a)(2) of the Rules.
16. 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, Perihelion Global, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
17. Payment of the forfeiture must be made by credit card through the
Commission's Revenue and Receivables Operations Group at (202)
418-1995, or by check or similar instrument, payable to the order of
the Federal Communications Commission. The payment must include the
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 Federal Reserve Bank
of New York, and account number 27000001. 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. 20554.8 Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
18. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, New Orleans
Office, 2424 Edenborn Ave., Suite 460, Metairie, Louisiana, 70001 and
must include the NAL/Acct. No. referenced in the caption.
19. 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.
20. 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 Perihelion Global, Inc. at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Leroy Hall
District Director
New Orleans Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.49, 73.1125(a), 73.1201(a)(2).
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: 73.49.
47 C.F.R. S: 73.1125(a).
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).
47 C.F.R. S: 73.1201(a)(2).
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, 73.49,
73.1125(a), 73.1201(a)(2).
13 See 47 C.F.R. S: 1.1914.
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(continued....)
Federal Communications Commission
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Federal Communications Commission