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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Real Life Broadcasting ) File Number EB-08-PA-010
Licensee of Station WIFI ) NAL/Acct. No. 200832400005
Florence, New Jersey ) FRN 0007-66-4493
Facility ID # 55310 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 2, 2008
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Real Life Broadcasting ("Real Life"), licensee of station WIFI,
in Florence, New Jersey apparently willfully and repeatedly violated
Sections 73.1745(a), 11.35, 73.49, and 73.3526(e)(12) of the
Commission's Rules ("Rules") by operating station WIFI with excessive
power, failing to maintain an operational EAS system, failing to
maintain an effective enclosure at the base of the WIFI tower, and
failing to maintain issues/program lists in the public inspection
file. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Real Life is apparently liable
for a forfeiture in the amount of twenty three thousand ($23,000).
II. BACKGROUND
2. Between April 18, 2007 and February 7, 2008, agents from the
Commission's Philadelphia Office conducted inspections of station WIFI
in response to complaints alleging that the station was operating with
excessive power.
3. At the time of the inspections conducted between April 18, 2007, and
April 24, 2007, Real Life held a Special Temporary Authority ("STA")
authorizing it to operate station WIFI with parameters at variance
and/or reduced power while maintaining monitor points within licensed
limits or to operate station WIFI with a non-directional antenna and
reduced power not to exceed 1250 Watts daytime and 125 Watts
nighttime.
4. Between 8:57 p.m. and 9:35 p.m. on April 18, 2007, and between 10:40
a.m. and 11:04 a.m. on April 20, 2007, agents conducted field
intensity measurements of the WIFI signal on 1460 kHz at the station's
monitoring points. The agent found that the station exceeded the
licensed field intensity limits at the monitoring points along the
39.5o, 284.6 o and 347 o radials. Because Real Life was operating
station WIFI with a non-directional antenna and not maintaining the
monitoring points within licensed limits, Real Life was required under
the STA to operate station WIFI with a power not to exceed 1250 Watts
daytime and 125 Watts nighttime.
5. According to an entry in the station logs, Real Life was operating
station WIFI with 1250 Watts of power during the daytime on April 20,
2008 at 5:00 p.m. Based on the agent's field intensity measurements,
which were made on April 18, 2007, and on April 20, 2007, and the
station's power on April 20, 2007, the agents calculated that, on
April 18, 2007 between 8:57 p.m. and 9:35 p.m., Real Life operated
station WIFI with 998.6 Watts, resulting in operation at 799 percent
of the authorized nighttime power (125 Watts).
6. On April 20, 2007, agents inspected the EAS equipment at the WIFI main
studio and reviewed the records of all EAS activations received and
transmitted between October 22, 2006 and April 20, 2007. At the time
of the inspection on April 20, 2008, Real Life was unable to provide
any EAS logs of any kind to demonstrate that the station had received
an EAS alert since February 20, 2007 or that the equipment had been
removed for repair. The agents also observed that the station's EAS
equipment was incapable of receiving any EAS activations. One of the
radio receivers connected to the station's EAS decoder was turned off.
The other radio receiver connected to the station's EAS decoder was
powered on and tuned to FM broadcast station WKXW on the frequency
101.5 MHz. However, the audio from WKXW was barely audible through the
station EAS decoder. During the inspection, agents informed WIFI's
chief operator about the condition of the EAS equipment and warned him
that the EAS equipment was not operational.
7. During the inspection on April 20, 2007, the agents also reviewed the
contents of the station's public inspection file and found that it did
not contain any issues/program lists. Real Life was required to
maintain all issues/program lists since June 1, 2006, the beginning of
its most recent renewal term.
8. After conducting the inspection at the main studio on April 20, 2007,
agents proceeded to WIFI's transmitter site. Real Life has a four
tower directional antenna array for station WIFI and each of the
antenna structures is enclosed within a fence. There is no property
fence surrounding the tower array. The agents observed that the gates
to three of the four antenna structures were left open and the gate to
the fourth antenna structure that WIFI was using for its
non-directional antenna was closed but not locked. The agents
immediately informed the President of Real Life and the station's
contract engineer that the fences surrounding each WIFI antenna
structure must be secured within an effective locked fence.
9. On April 23, 2007, agents returned to the WIFI main studio and
conducted another inspection of the station's EAS equipment. The
agents observed that the condition of the EAS equipment had not
changed since the April 20, 2007, inspection. At 1:16 p.m. on April
23, 2007, at the request of FCC agents, broadcast station WKXW
transmitted an EAS test. The EAS decoder at station WIFI did not
receive the EAS test from station WKXW. The agents determined that, at
the time of the inspection, the monitoring functions of the EAS
equipment at station WIFI were not available because the radio
receivers connected to the EAS equipment were incapable of receiving
EAS activations.
10. On April 23, 2007, agents returned to WIFI's transmitter site and
observed that the gates to three of the four antenna structures were
closed and locked. However, the gate to the fourth antenna structure
that Real Life was using for the non-directional antenna for station
WIFI was still not locked.
11. On April 24, 2007, agents met with WIFI's contract engineer at the
transmitter site. The contract engineer informed the agents that he
had been leaving the gate to the non-directional antenna unlocked
because the key for the gate's lock had been lost. He stated that he
replaced the lock and secured it when he arrived at the transmitter
site that morning. The contract engineer also reported to the agents
that the circuit to change the transmitter from daytime to nighttime
mode had not been working for more than one year. Instead, the
caretaker at the property is responsible for switching the transmitter
to nighttime mode and the contract engineer admitted that sometimes
the caretaker does not reduce the power and there are no other
procedures in place to ensure that the transmitter is in the correct
mode.
12. On July 16, 2007, the Philadelphia Office issued a Letter of Inquiry
to Real Life as a follow-up on issues resulting from the inspections
of station WIFI between April 18, 2007 and April 24, 2007. The issues
addressed in the LOI included, among other things, the station's
operating power, EAS equipment, antenna structure enclosures,, and the
radio issues/program lists.
13. On August 2, 2007, the Philadelphia Office received a response to the
Letter of Inquiry from Real Life. In the response, Real Life stated
that it invested in a new remote monitoring unit, a Burke ARC Plus,
which can automatically adjust the station's power to the authorized
daytime and nighttime modes. Real Life also acknowledged that, prior
to April 24, 2007, it had last received an EAS activation on February
20, 2007. Real Life stated that its EAS equipment was impacted by
lightening in approximately March/April 2007. Real Life said that
after the most recent visit from the FCC, they immediately checked and
reset the equipment to monitor the Local Primary Stations as
designated in the New Jersey State EAS Plan. Furthermore, Real Life
stated that its issues/programs lists are now maintained in the
station's public inspection file, which is located in a file drawer in
the station's studio.
14. On January 23, 2008, the Philadelphia Office received information that
station WIFI was operating with excessive power. An agent of the
Philadelphia Office checked the FCC Records and found that the
Extension of Special Temporary Authority that the Commission granted
Real Life on October 2, 2007 for station WIFI expired on January 2,
2008.. Therefore, Real Life was required to operate station WIFI
according to the terms of its license, which authorizes Real Life to
operate station WIFI with a directional antenna system and an antenna
input power of 5250 Watts daytime and 540 Watts nighttime.
15. Between January 26, 2008 and January 29, 2008 and on February 5, 2008,
an agent of the Philadelphia Office made field intensity measurements
of the WIFI signal on 1460 kHz with a calibrated Potomac Field
Intensity Meter. All measurements were made at the same location in
the parking lot of the WAWA Food Market, 3620 Bath Road, Bristol,
Pennsylvania 19007. The agents would later use these measurements to
determine that Real Life was operating station WIFI with excessive
power.
16. On February 7, 2008, agents of the Philadelphia Office conducted an
inspection at WIFI's transmitter site. During the inspection, WIFI's
contract engineer stated that, because the station's common point
meter and transmitter plate voltage meter had completely failed, he
had been measuring the station's power with a meter on the transmitter
that provides readings in a percentage of 5000 Watts. The contract
engineer stated that he calibrated the meter a week after the agents'
last inspection on April 24, 2007 so that a reading of 100% on the
meter would correspond to 5000 Watts.
17. At the same time the contract engineer was changing the power of the
WIFI transmitter, an agent was conducting field intensity measurements
of station WIFI's signal with a calibrated field intensity meter.
These measurements were made at the same location where the field
intensity measurements were made between January 26, 2008 and January
29, 2008 and on February 5, 2008. Based on the field intensity
measurements and the agents' observations of the WIFI power meter
during the inspection on February 7, 2008, the agents determined that
on January 26, 2008 at 7:39 p.m. and on January 28, 2008 at 9:15 p.m.
Real Life operated station WIFI with 1750 Watts resulting in operation
at 324 percent of the authorized nighttime power (540 Watts). The
agents also determined that on January 27, 2008 at 8:35 p.m., Real
Life operated station WIFI with 750 Watts resulting in operation at
138% of the authorized nighttime power (540 Watts).
18. When advised that the station had operated over-powered between
January 26, 2008 and January 28, 2008, the contract engineer stated to
the agents that the Burke ARC remote monitoring system did not notify
him that the station was out of tolerance. The contract engineer
further reported that the remote monitoring system did not notify him
that the station was over-powered during the tests conducted that day
by the agents.
19. The agents also conducted a main studio inspection on February 7,
2008. The agents reviewed the contents of the public inspection file
and found that Real Life was not maintaining the issues/program lists
in the station's public inspection file. In response to the agents'
request, Real Life was unable to provide to the agents any of the
issues/programs lists for station WIFI either during or after the
inspection. The agents also inspected the station's EAS equipment and
determined that it was fully operational.
III. DISCUSSION
20. 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) 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.
21. Section 73.1745(a) provides that "[n]o 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." The
agents determined that on April 18, 2007 between 8:57 p.m. and 9:35
p.m. Real Life operated station WIFI with a power of 998.6 Watts
resulting in operation at 799 percent of the nighttime power
authorized under the STA (125 Watts); on January 26, 2008 at 7:39 p.m.
and on January 28, 2008 at 9:15 p.m. Real Life operated station WIFI
with 1750 Watts resulting in operation at 324 percent of the nighttime
power authorized under its license (540 Watts); and on January 27,
2008 at 8:35 p.m. Real Life operated station WIFI with 750 Watts
resulting in operation at 138% of the nighttime power authorized under
its license (540 Watts). The over-powered operation occurred on more
than one day. We therefore find that the violation was repeated. We
also find that the overpowered operation that occurred on April 18,
2007 was willful because the station knowingly operated without
equipment that was capable of automatically changing the station's
power from daytime to nighttime mode. Although the station employed a
caretaker to change the power mode at nighttime, the station's
contract engineer admitted that the caretaker did not always change
the power mode. The contract engineer also reported that there was no
other method in place to ensure that the station was operating in the
correct power mode.
22. Section 11.35(a) of the Rules provides that "EAS Participants are
responsible for ensuring that EAS Encoders, EAS Decoders and Attention
Signal generating and receiving equipment used as part of the EAS are
installed so that the monitoring and transmitting functions are
available during the times the stations and systems are in
operation..." Section 11.52(d) of the Rules requires broadcast
stations to monitor at least two EAS sources. Section 11.61(a)(1) of
the Rules requires broadcast stations to (a) receive monthly EAS tests
from designated local primary EAS sources and retransmit the monthly
test within 60 minutes of its receipt and (b) conduct tests of the EAS
header and EOM codes at least once a week at random days and times.
Agents determined that, on April 20, 2007 and April 23, 2007, WIFI's
EAS equipment was not fully operational. Agents observed during the
April 20, 2007 inspection that one of the EAS receivers was turned
off. The other receiver was turned on, but the station to which it was
tuned was not audible. A review of the EAS logs on that day revealed
that an EAS activation had not been received since February 20, 2007,
a fact which subsequently was confirmed by Real Life in response to
the July 16, 2007 LOI. Agents reported these problems to the president
of Real Life and WIFI's chief operator at the conclusion of the
inspection on April 20, 2007. When agents returned to inspect the EAS
equipment on April 23, 2007, the equipment was in the same condition.
The EAS test that agents previously had arranged to be sent by station
WKXW on that day did not activate WIFI's EAS equipment. We conclude
that Real Life's EAS equipment was not fully operational for more than
one day and therefore the violation was repeated. We also find that
the violation was willful because Real Life failed to maintain fully
operational EAS equipment even after being notified about problems
with the equipment during the April 20, 2007 inspection.
23. Section 73.49 of the Rules states that "[a]ntenna towers having radio
frequency potential at the base...must be enclosed within effective
locked fences or other enclosures. . . ." On April 20, 2007 and on
April 23, 2007, the gate to the antenna structure that Real Life was
using as the station's non-directional antenna was unlocked. WIFI's
contract engineer acknowledged to the agents that he was leaving the
gate to the non-directional antenna unlocked because he lost the key.
The gate remained unlocked for more than one day, therefore, the
violation was willful. Because the gate was knowingly left unlocked by
WIFI's contract engineer, the violation was willful.
24. Section 73.3526(e)(12) of the Rules requires AM and FM broadcast
licensees to place in their public inspection file, for each calendar
quarter, a list of programs that have provided the station's most
significant treatment of community issues during the preceding three
month period. This list is known as the radio issues/programs list.
Copies of the lists must be maintained in the file until final action
has been taken on the station's next renewal application. Real Life
was required to maintain all issues/program lists since the beginning
of its current license term, which began on June 1, 2006. On April 20,
2007, agents found that Real Life failed to maintain any
issues/programs lists in the public inspection file for station WIFI.
In its response to the Letter of Inquiry, Real Life reported that the
issues/programs lists were now being maintained in the station's
public inspection file. When the agents re-inspected the station on
February 7, 2008, however, the agents found that the issues/programs
lists still were not being maintained in the station's public
inspection file. The station's issues/programs lists were not
available on more than one day; therefore, the violation was repeated.
The violation was willful because Real Life failed to maintain
issues/programs lists even after being warned during the April 20,
2007, inspection about the requirement to create and maintain the
lists.
25. In sum, based on the evidence before us, we find that Real Life
apparently willfully and repeatedly violated Sections 73.1745(a),
11.35(a), 73.49 and 73.3526(e)(12) of the Rules by operating station
WIFI with excessive power, by failing to maintain fully operational
EAS equipment for station WIFI, by failing to maintain an effective
locked fence around a WIFI antenna tower, and by failing to maintain
the radio issues/programs lists in the WIFI public inspection file.
26. 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 operating with excessive power is $4,000,
failing to maintain an operational EAS system is $8,000, and failing
to maintain an effective tower enclosure at the base of the tower is
$7,000. The base forfeiture amount for violation of the public file
rule is $10,000. Because the WIFI public inspection file was mostly
complete, we conclude that a reduction in the base forfeiture amount
for the public file violation to $4,000 is appropriate. 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, and the statutory factors to the instant
case, we conclude that Real Life is apparently liable for a $23,000
forfeiture.
IV. ORDERING CLAUSES
27. 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, Real Life Broadcasting is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty three thousand dollars ($23,000) for violations of
Sections 73.1745(a), 11.35(a), 73.49 and 73.3526(e)(12) of the Rules.
28. 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, Real Life Broadcasting
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
29. 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.
30. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Philadelphia Office,
One Oxford Valley Building, Suite 404, 2300 East Lincoln Highway,
Langhorne, Pennsylvania 19047 and must include the NAL/Acct. No.
referenced in the caption.
31. 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.
32. 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 Real Life Broadcasting at its address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 73.1745(a), 11.35 and 73.49(a), and 73.3526(e)(12).
47 U.S.C. S: 503(b).
On April 20, 2007 at 1:45 p.m., the agents determined that station WIFI
was operating with 4991 Watts based on a reading of the common point
meter. Subsequent to the inspection, the station's contract engineer
informed the agents that the common point meter was not providing reliable
readings and that he did not know the last time the meter was calibrated.
The agents reviewed the station's transmitter logs and found an entry
indicating the contract engineer determined the station's operating power
was 1250 Watts on April 20, 2007 at 5:30 p.m. The determination was based
on the contract engineer's observation of a meter on the transmitter that
provides power readings in a percentage of 5000 Watts.
On February 7, 2008, the WIFI contract engineer informed the agents that
the Burke ARC Plus was installed a week or so after the FCC inspection on
April 24, 2007.
On October 2, 2007, the Commission granted Real Life an Extension of
Special Temporary Authority authorizing Real Life to operate station WIFI
for an additional period of 90 days with a non-directional antenna and a
power reduction to 125 Watts daytime and nighttime. The Commission also
specified that WIFI must operate with a further reduced power than
authorized in the previous STA, because the Commission received complaints
that WIFI was causing harmful interference to another licensed station and
the Commission was unable to find that any progress had been made toward
restoration of licensed operation. Although the Extension of Special
Temporary Authority expired on January 2, 2008, Real Life did not file
another request for Extension of STA with the Commission until February 6,
2008. On May 12, 2008, the Commission granted the request for STA that
Real Life filed on February 6, 2008. In light of the lapse of time between
the expiration of the prior STA on January 2, 2008 and the filing of the
February 6, 2008 request for Extension of STA, the Commission considered
the February 6, 2008 filing as a request for new STA. Therefore, the grant
did not cover the period between the expiration of the prior STA on
January 2, 2008 and the filing of the February 6, 2008 request.
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."
The required monthly and weekly tests are required to conform to the
procedures in the EAS Operational Handbook. See also, Amendment of Part 11
of the Commission's Rules Regarding the Emergency Alert System, 17 FCC Rcd
4055 (2002) (effective May 16, 2002, the required monthly EAS test must be
retransmitted within 60 minutes of receipt).
47 C.F.R. S: 73.49.
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, 73.1745(a),
11.35(a) and 73.49 of the Rules
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission