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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Pentecostal Temple Development
Corporation ) File Number EB-07-PA-321
Licensee of Station WGBN(AM) ) NAL/Acct. No. 200832400009
New Kensington, Pennsylvania ) FRN 0008-65-6506
Facility ID # 52241 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 5, 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 Pentecostal Temple Development Corporation ("PTDC"), licensee of
AM station WGBN, in New Kensington, Pennsylvania, apparently willfully
and repeatedly violated Sections 73.1745(a), 1.903(a), and
73.3526(e)(12) of the Commission's Rules ("Rules") by failing to
operate its broadcast station in a manner which complies with the
terms of the station authorization, operating a Studio Transmitter
Link on an unauthorized frequency, and failing to maintain radio
issues/programs lists in the station's public inspection file. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that PTDC is apparently liable for a
forfeiture in the amount of fifteen thousand dollars ($15,000).
II. BACKGROUND
2. On October 1, 2007, the Philadelphia Office received information
regarding possible violations at station WGBN. In response, an agent
from the Commission's Philadelphia Office conducted an inspection of
station WGBN on November 6, 2007, and November 7, 2007.
3. The license for WGBN specifies that PTDC must operate the station with
a two-tower directional antenna array and with an antenna input power
of 1080 Watts during the daytime and 76 Watts during the nighttime. On
November 6, 2007, and November 7, 2007, the agent measured the field
intensities of WGBN on 1150 kHz at the station's monitoring points to
determine if the station was maintaining the directional antenna
pattern within prescribed limits. On November 6, 2007 at 8:11 p.m.
local time, the agent measured a field intensity of 32 mV/m at the
monitoring point along the 286 degree radial. The agent found that the
field intensity exceeded the licensed limit of 23.5 mV/m by 36
percent. On November 7, 2007 at 12:53 p.m. local time, the agent
measured a field intensity of 73 mV/m at the monitoring point along
the 286 degree radial. The agent found that the field intensity
exceeded the licensed limit of 23.5 mV/m by 210 percent.
4. On November 7, 2007 at 1:45 p.m., the agent went to the WGBN main
studio, which is located at 560 7th Street, New Kensington,
Pennsylvania 15068, and met with the station's Chief Operator. While
at the main studio, the agent reviewed the contents of the station's
public inspection file. The agent observed that PTDC maintained a
separate folder for each item in its public inspection file. When the
agent opened the folder labeled "Issues Lists," he found a radio
issues/programs list for the period between April 12, 2003 and May 15,
2004. The agent found that the public inspection file did not contain
the radio issues/programs lists for the period between August 2, 2006
and November 7, 2007. PTDC was required to maintain in the public
inspection file all quarterly radio issues/program lists that it
prepared since August 2, 2006, the grant date of the latest WGBN
renewal application.
5. On November 7, 2007 at about 3:30 p.m., the agent and Chief Operator
went to the WGBN transmitter site. There the agent observed that one
of the WGBN antenna structures (ASR Number 1048261) had been
dismantled and PTDC was using the remaining WGBN antenna structure
(ASR Number 1048262) as the station's non-directional antenna. The
Chief Operator stated that PTDC had completely dismantled one of the
station's two antenna structures because it was damaged in a storm and
that WGBN was currently operating at reduced power with a
non-directional antenna.
6. During the inspection at the WGBN transmitter site, the agent had PTDC
switch the station between daytime and nighttime modes while he
observed the transmitter's metering. When the station was operating in
daytime mode, the agent measured that station's antenna input power to
be 264.5 Watts or 24.5 percent of the authorized power during the
daytime. When the station was operating in nighttime mode, the agent
measured the station's antenna input power to be 40.5 Watts or 53.2
percent of the authorized power during the nighttime. At the time of
the inspection, PTDC was unable to provide the agent with any
authorization from the Commission to operate station WGBN at reduced
power or with a non-directional antenna.
7. When the agent returned to the WGBN main studio location, he inspected
the station's Marti Studio Transmitter Link (Model STL-10). The agent
used a frequency counter to measure that the Studio Transmitter Link
operated on the frequency 947.8559 MHz. At the time of the inspection,
PTDC was unable to provide the agent with any authorization from the
Commission to operate a Studio Transmitter Link on the frequency
947.8559 MHz. PTDC did provide the agent with a copy of the license
for station WPXQ800 authorizing operation of a Studio Transmitter Link
at the WGBN main studio on the frequency 948.875 MHz.
8. On January 4, 2008, the Philadelphia Office issued a Letter of Inquiry
to PTDC to follow up on issues resulting from the inspection of
station WGBN. By a letter dated January 31, 2008, PTDC submitted a
response to the Letter of Inquiry. In the response, PTDC stated that
it had not been able to operate station WGBN in directional mode since
June 11, 2007 due to damage the station suffered to both of its
antenna structures. PTDC also stated that between June 11, 2007 and
November 7, 2007, it operated station WGBN at 250 Watts in
non-directional mode. PTDC also said that it did not notify the
Commission in writing prior to November 7, 2007 that station WGBN was
operating with a non-directional antenna or at reduced power. In the
response, PTDC acknowledged that it was operating the station's Studio
Transmitter Link on the frequency 947.8559 MHz since at least the past
six months. PTDC said that on November 14, 2007 it re-crystallized the
Studio Transmitter Link to operate on the frequency 948.875 MHz. In
the response, PTDC also acknowledged that at the time of the
inspection the public inspection file did not contain the radio
issues/program lists for the period between August 2, 2006 and
November 7, 2007. PTDC said that it has drafted the radio
issues/programs lists for all quarters since August 2, 2006 and placed
them in the WGBN public inspection file.
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 73.1745(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."
Station WGBN's license requires the station to utilize a two-tower
directional array during the day and night and to operate with an
antenna input power of 1080 Watts during the daytime and 76 Watts
during the nighttime. The agent found that PTDC was operating at 24.5%
of its authorized daytime power and 53.2% of its authorized nighttime
power.. Because PTDC admitted that it operated station WGBN between
June 12, 2007 and November 7, 2007 with a reduced power and in a
non-directional mode from a single antenna structure without prior FCC
authorization, we find that the violation was willful. The operation
with the improper mode and power occurred on more than one day. We
therefore find that the violation was repeated.
11. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service and with a valid
authorization granted by the Commission. Section 1.947(a) of the Rules
requires that all major modifications as defined in Section 1.929 of
the Rules require prior Commission approval. Section 1.929(a)(6) of
the Rules defines one of the major actions as "any application or
amendment requesting to add a frequency or frequency block for which
the applicant is not currently authorized." On November 7, 2007, an
agent from the Philadelphia Office found that PTDC was operating the
WGBN Studio Transmitter Link on the unauthorized frequency 947.8559
MHz. At the time of the inspection, PTDC only held one license for its
Studio Transmitter Link under the call sign WPXQ800. That license
authorized PTDC to operate the WGBN Studio Transmitter Link on the
frequency 948.875 MHz. PTDC admitted in its response to the Letter of
Inquiry that it had been operating the Studio Transmitter Link on the
unauthorized frequency for at least 6 months. The operation on an
unauthorized frequency occurred on more than one day. We therefore
find that the violation was repeated. Because PTDC admitted that it
knowingly operated the Studio Transmitter Link on the unauthorized
frequency, the violation was willful.
12. 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. PTDC was
required to maintain in the public inspection file all quarterly radio
issues/program lists that it prepared since August 2, 2006, the grant
date of the latest WGBN renewal application. However, PTDC did not
maintain the radio issues/programs lists in the WGBN public inspection
file for the period between August 2, 2006 and November 7, 2007. The
station had not been maintaining radio issues/programs lists since
August 2006; therefore, the violation was repeated. PTDC understood
that it was required to maintain the radio issues/programs lists in
the public inspection file because it was maintaining an
issues/programs list for the period between April 12, 2003 and May 15,
2004 in the public inspection file in a folder labeled "Issues
Lists.". We therefore find that the violation was willful.
13. Based on the evidence before us, we find that PTDC apparently
willfully and repeatedly violated Sections 73.1745(a), 1.903(a), and
73.3526(e)(12) of the Commission's Rules ("Rules") by failing to
operate its broadcast station in a manner which complies with the
terms of the station authorization, operating a Studio Transmitter
Link on an unauthorized frequency, and failing to maintain radio
issue/programs lists in the station's public inspection file.
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 maintain directional antenna
pattern within prescribed parameters is $7,000 and the base forfeiture
amount for operation on an unauthorized frequency is $4,000. The base
forfeiture amount for violation of the public file rule is $10,000.
Because the WGBN 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 of
the Rules, and the statutory factors to the instant case, we conclude
that PTDC is apparently liable for a fifteen thousand dollar ($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, Pentecostal Temple
Development Corporation is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of fifteen thousand dollars ($15,000)
for violations of Sections Section 73.1745(a), 1.903(a), and
73.3526(e)(12) 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, Pentecostal Temple
Development 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 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. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. PTDC shall also send electronic notification on
the date said payment is made to NER-Response@fcc.gov.
18. 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. An electronic copy shall be sent to
NER-Response@fcc.gov.
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 Pentecostal Temple Development
Corporation at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S:S: 73.1745(a), 1.903(a), and 73.3526(e)(12).
47 U.S.C. S: 503(b).
On November 8, 2007, PTDC submitted an application (File No.
BSTA-20071108AFE) for special temporary authorization to operate station
WGBN at reduced power due to damage to the station's transmitter suffered
during a storm. On November 9, 2007, the Commission granted Special
Temporary Authority ("STA"). Because PTDC did not notify the Commission in
its original STA request that station WGBN was also operating with a
non-directional antenna, PTDC submitted a modification of the STA on
November 16, 2007. On November 16, 2007, the Commission granted the
request for modification of Special Temporary Authority authorizing PTDC
to operate station WGBN with an emergency non-directional antenna and
reduced power not to exceed 250 Watts daytime and 17.5 Watts nighttime.
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."
We note that PTDC's claim that it was operating at reduced power with a
non-directional antenna because of damage to the WGBN antenna structures
from a storm does not change our findings here. The Commission
contemplated such unforeseen circumstances and adopted Section 73.1635(a)
of the Rules, which permits a licensee to seek special temporary authority
to operate a broadcast facility for a limited period at a specified
variance from the terms of the station authorization. Section
73.1635(a)(3) of the Rules specifically states that a request for an STA
necessitated by unforeseen equipment damage or failure may be made without
regard to the procedural requirements of Section 73.1635 (e.g. via
telegram or telephone), though any such request must be followed by a
written confirmation request within 24 hours. PTDC did not file a request
for an STA until after the inspection conducted by the FCC agent.
47 C.F.R. S: 1.903(a). At issue here is PTDC's operation of its Studio to
Transmitter Link, which is considered an aural broadcast auxiliary
station. Section 74.6 of the Rules provides that "[a]pplicants for and
licensees of. . .aural broadcast stations. . .are subject to the
application and procedural rules for wireless telecommunications services
contained in part 1, subpart F of this chapter." 47 C.F.R. S:74.6. Part 1,
subpart F includes Section 1.903(a) of the Rules.
47 C.F.R. S: 1.947(a).
47 C.F.R. S: 1.929(d)(1)(i).
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),
1.903(a), and 73.3526(e)(12).
(...continued from previous page)
(continued....)
Federal Communications Commission
6
Federal Communications Commission