Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Stone/Collins Communications, Inc.
) File No. EB-09-AT-0018
Licensee of Radio Station
) NAL/Acct. No. 201032480001
WEPG (AM)
) FRN 0004986998
South Pittsburg, TN
)
Facility ID #40154
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 11, 2010
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Stone/Collins Communications, Inc. ("Stone/Collins"), licensee of
station WEPG(AM), in South Pittsburg, Tennessee, apparently willfully
and repeatedly violated Sections 73.49 and 73.3526 of the
Commission's Rules ("Rules") by failing to enclose the base of its AM
antenna structure within a locked fence and failing to maintain and
make a available a public inspection file. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Stone/Collins is apparently liable for a forfeiture in the amount
of seventeen thousand dollars ($17,000).
II. BACKGROUND
2. On August 19, 2009, agents of the Commission's Atlanta Office of the
Enforcement Bureau ("Atlanta Office"), accompanied by the station
owner and other station personnel, inspected the main studio of radio
station WEPG during normal business hours. The agents asked to inspect
the station's public inspection file and were told that there was no
public inspection file and that the station never had one.
Furthermore, the station personnel were not familiar with the public
inspection file requirements.
3. Still on August 19, 2009, the agents inspected the fence surrounding
the agent's antenna structure, which had radio frequency potential at the
base. The agents observed that the gate on the chain link fence
surrounding the base of the tower was wide open. There was no lock to
secure the gate, and there was no evidence of any prior lock on the gate.
The agents observed dense overgrowth of weeds and bushes inside the fence
and in front of the opened gate, demonstrating that the gate had been open
for a long time. The agents did not observe any perimeter property fence.
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 73.49 of the Rules states that "antenna towers having radio
frequency potential at the base...must be enclosed within effective locked
fences or other enclosures." On August 19, 2009, agents from the Atlanta
Office observed that the gate on the chain link fence surrounding the base
of the tower was wide open. There was no lock to secure the gate, and no
evidence of any prior lock on the gate. There was dense overgrowth of
weeds and bushes all around the base of the tower, and inside the fence,
restricting access to the tower. There were also tall weeds growing up in
front of the opened gate, demonstrating that the gate had been open for a
long time. The tower had radio frequency potential at the base. The agents
did not observe a property fence around the perimeter of the property.
6. Section 73.3526 of the Rules states that "every permittee or licensee
of an AM, FM, TV or Class A TV station in the commercial broadcast
services shall maintain a public inspection file." The public inspection
file shall be maintained at the main studio of the station. The file shall
be available for public inspection at any time during regular business
hours. On August 19, 2009, agents from the Atlanta Office asked to inspect
the station's public inspection file at the station's main studio during
regular business hours. Station personnel stated that there was no public
inspection file and that the station had never had one. No one at the
station, including the owner, was able to provide any evidence that a
public inspection file had ever existed.
7. Based on the evidence before us, we find that Stone/Collins apparently
willfully and repeatedly violated Sections 73.49 and 73.3526 of the Rules
by failing to maintain an effective locked fence or other enclosure at the
base of the station's antenna tower and failing to maintain a public
inspection file. We also find that Stone/Collins apparently willfully
violated Section 73.3536 of the Rules by failing to make available a
public inspection file.
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 failing to maintain an effective locked tower fence
or enclosure is $7,000; and failing to maintain a public file is $10,000.
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 Stone/Collins is apparently liable for a seventeen
thousand dollar ($17,000) 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, Stone/Collins Communications, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount
of seventeen thousand dollars ($17,000) for violations of Sections 73.49
and 73.3526 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, Stone/Collins Communications, 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 credit card, 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
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. 20554.8 If you have
questions, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
Stone/Collins will send electronic notification on the date said payment
is made to, SCR-Response@fcc.gov.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Atlanta Office,
3575 Koger Blvd., Suite 320, Duluth, Georgia, 30096 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 Stone/Collins Communications, 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: 73.49 and 73.3526.
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."
See 47 C.F.R. S: 73.49 ("[r]eady access must be provided to each antenna
tower base for meter reading and maintenance purposes at all times.").
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 and
73.3526.
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
4
Federal Communications Commission