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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File Number EB-08-PA-0270
)
Clarion County Broadcasting Corp. NAL/Acct. No.
) 201032400002
Licensee of Station WKQW
) FRN 0013-42-8743
Facility ID #63290
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 4, 2010
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 Clarion County Broadcasting Corp. ("Clarion"), the licensee of
radio station WKQW in Oil City, Pennsylvania, apparently willfully and
repeatedly violated Section 73.1745(a) of the Commission's Rules
("Rules") by operating at times beyond the station's post-sunset
authorization. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Clarion is
apparently liable for a forfeiture in the amount of four thousand
dollars ($4,000.00).
II. BACKGROUND
2. On August 20, 2008, in response to a complaint that station WKQW was
operating at nighttime without authorization, an agent from the
Enforcement Bureau's Philadelphia Office searched FCC databases and
found that WKQW is a daytime-only Class D station and is authorized to
operate on 1120 KHz with 1000 Watts between sunrise and sunset times.
The station also has post-sunset and pre-sunset authorizations that
permit WKQW to operate up to two hours after local sunset time at a
specified reduced power and to begin its pre-sunrise operation at 6
a.m. at a specified reduced power. The times for the post-sunset
authorizations vary throughout the year and are indicated on the
station's authorization. The station is required to cease radio
transmissions during the period between the end of post-sunset
authorization and the beginning of pre-sunrise authorization.
3. To determine whether WKQW was operating consistent with its
authorization, an agent from the Philadelphia Office installed radio
monitoring equipment in Oil City, Pennsylvania to record, on a
continuous basis, the relative signal strength of WKQW's transmission
on the frequency 1120 KHz. The equipment was in place from October 28,
2008 to December 12, 2008.
4. The agent reviewed and analyzed the radio transmission data recorded
between October 28, 2008 and December 12, 2008, and found several
violations. The agent determined that, between October 28, 2008, and
October 30, 2008, the station operated after 8:30 p.m. local time,
which is the end of the station's post-sunset authorization during the
month of October. The agent also determined from the recorded radio
transmission data that, between November 1, 2008 and November 13, 2008
and between November 15, 2008 and November 25, 2008, the station
operated past 7:00 p.m. local time, which is the end of the station's
post sunset authorization during the month of November. In response
to an inquiry from Commission staff, the owner of Clarion confirmed
that the station's transmitter did not malfunction during the period
between October 28, 2008 and December 12, 2008.
III. DISCUSSION
5. 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.
6. Section 73.1745(a) of the Rules requires that no 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 WKQW's post-sunset authorization permitted it to
operate until 8:30 p.m. in the month of October and until 7:00 p.m.
during the month of November. As described in detail above, the agent
found that WKQW operated beyond its post-sunset authorization on three
days in October 2008 and on eighteen days in November 2008. According
to Clarion, the station's transmitter had not malfunctioned on any of
those days. Based on the evidence before us, we find that Clarion
apparently willfully and repeatedly violated Section 73.1745(a) of the
Rules by operating at times beyond the station's post sunset
authorization.
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 is $4,000 for unauthorized emissions. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D) 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 Clarion is apparently liable for a $4,000
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, Clarion is hereby NOTIFIED
of this APPARENT LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($4,000) for violations of Section 73.1745(a) 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, Clarion 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 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, Clarion will send electronic
notification on the date said payment is made to
NER-Response@fcc.gov.
11. 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.
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 Clarion 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).
47 U.S.C. S: 503(b).
On October 28, 2008, the station operated from 8:31 p.m. to 11:59 p.m. On
October 29, 2008, the station operated from 8:31 p.m. to 10:44 p.m. and
then again from 12:00 a.m. to 5:59 a.m. On October 30, 2008, the station
operated from 10:10 pm. to 10:35 p.m. The station was required during the
month of October to cease radio transmissions from 8:30 p.m. until the
beginning of its pre-sunrise authorization at 6 a.m.
E.g. On November 8, 2008, the station operated from 7:01 p.m. to 5:59 a.m.
On November 18, 2008, the station operated from 10:37 p.m. to 5:59 a.m.
The station was required during the month of November to cease radio
transmissions 7:01 p.m. until the beginning of its pre-sunrise
authorization at 6 a.m.
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 U.S.C. S: 503(b)(2)(D).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1745(a).
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission