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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Hancock Broadcasting Corporation) File No. EB-01-OR-012
WBSL(AM) ) NAL/Acct. No. 200132620003
Bay St. Louis, Mississippi )
FORFEITURE ORDER
Adopted: August 13, 2001 Released: August 15,
2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand dollars
($3,000) to Hancock Broadcasting Corporation (``Hancock''),
licensee of Station WBSL(AM), Bay St. Louis, Mississippi, for
willful violations of Sections 11.35(a) and 73.49 of the
Commission's Rules (``Rules'').1 The noted violations involve
Hancock's failure to install and maintain operational
Emergency Alert System (``EAS'') equipment at WBSL(AM) and its
failure to enclose WBSL(AM)'s antenna tower within an
effective locked fence or other enclosure.
2. On April 4, 2001, the Commission's New Orleans,
Louisiana, Field Office (``New Orleans Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to
Hancock for a forfeiture in the amount of fifteen thousand
dollars ($15,000).2 Hancock filed a response to the NAL on
May 7, 2001.
II. BACKGROUND
3. On January 24, 2001, an agent from the New Orleans
Office inspected WBSL(AM). During the inspection, the agent
observed that the station's EAS equipment was not connected to
a power source and was not programmed to monitor and receive
EAS tests or messages. In addition, the agent observed that,
although there was a lock on the gate to the fence surrounding
WBSL(AM)'s antenna tower, the gate was unlocked and open. The
agent further observed that the station was not maintaining
logs of EAS tests and activations, there was no EAS Operating
Handbook at the station, and the station did not have a chief
operator designated in writing and posted with the station
authorization.
4. On January 29, 2001, the New Orleans Office issued a
Notice of Violation (``NOV'') citing Hancock for violations of
Sections 11.35(a) (failure to install EAS equipment so that
monitoring and transmitting functions are available), 73.49
(failure to enclose the AM antenna tower within an effective
locked fence or other enclosure), 73.1820(a)(1)(iii) (failure
to maintain logs of EAS tests), 11.15 (failure to maintain a
copy of the EAS Operating Handbook at normal duty positions or
EAS equipment locations), and 73.1870(a) (failure to designate
a chief operator in writing with a copy posted with the
station authorization). On February 20, 2001, Hancock
submitted a response to the NOV in which it indicated that the
violations had been corrected.
5. On April 4, 2001, the New Orleans Office issued the
subject NAL to Hancock for failure to install EAS equipment so
that monitoring and transmitting functions are available in
willful violation of Section 11.35(a) of the Rules and failure
to enclose the AM antenna tower within an effective locked
fence or other enclosure in willful violation of Section 73.49
of the Rules, each of which is a safety-related violation.
The other violations cited in the NOV were not included in the
NAL. On May 7, 2001, the Commission received Hancock's
response to the NAL, which seeks rescission or reduction of
the forfeiture. In its response, Hancock argues that the
violations were not willful. Hancock concedes that at the
time of the inspection, the EAS equipment was not functioning.
However, Hancock states that the EAS equipment was installed
and in place, but during the installation of the new
transmitter and other broadcast equipment, the EAS equipment
was not hooked up properly. Hancock further states that
purchasing the EAS equipment and having it in place shows that
the violation was not willful. In addition, Hancock asserts
that there was in fact a lock on the gate to the fence
surrounding the antenna tower, but with some force a person
could move the gate and enter the site. Hancock also
indicates that both violations have been corrected. Finally,
Hancock seeks reduction of the forfeiture amount, arguing that
payment of the forfeiture would result in a financial hardship
for the station.
III. DISCUSSION
6. The forfeiture amount in this case was assessed in
accordance with Section 503 of the Communications Act of 1934,
as amended (``Act''),3 Section 1.80 of the Rules,4 and The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Hancock's
response, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent
and gravity of the violation and, with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice
may require.5
7. Section 11.35(a) of the Rules requires that broadcast
stations install EAS encoders, EAS decoders and attention
signal generating and receiving equipment so that the
monitoring and transmitting functions are available during the
times the stations are in operation. Section 73.49 of the
Rules provides that AM antenna towers having radio frequency
potential at the base must be enclosed within effective locked
fences or other enclosures. Hancock concedes that it violated
Sections 11.35(a) and 73.49, but argues that the violations
were not willful. We disagree. Section 312(f)(1) of the Act
provides that ``the term `willful,' when used with reference
to the commission or omission of any act, means the conscious
or 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 ....''6 This definition
applies to the term ``willful'' as used in Section 503(b) of
the Act. See Southern California Broadcasting Co., 6 FCC Rcd
4387 (1991). Hancock states that during installation of a new
transmitter and other broadcast equipment, the EAS equipment
``was not hooked up properly.'' However, at the time of the
inspection, the EAS equipment was not programmed to monitor
and receive EAS tests or messages and was not even connected
to a power source. Thus, it was not a matter of the EAS
equipment not being hooked up properly; rather, the equipment
was not hooked up at all. In addition, we reject Hancock's
assertion that purchasing the equipment and having it in place
shows that the violation was not willful. Section 11.35(a)
requires that the equipment be installed. With respect to the
Section 73.49 violation, Hancock asserts that there was in
fact a lock on the gate to the fence surrounding the antenna
tower, but with some force a person could move the gate and
enter the site. However, at the time of the inspection, the
gate was unlocked and open and it was not necessary to use
``some force'' to push open the gate. Accordingly, we find
that Hancock willfully violated Sections 11.35(a) and 73.49 of
the Rules.7 Further, we note that Hancock's remedial actions
to correct the violations, while commendable, are not a
mitigating factor. See Station KGVL, Inc., 42 FCC 2d 258, 259
(1973).
8. Hancock also argues that payment of the $15,000
forfeiture would result in a financial hardship for the
station and provides tax returns for 1998, 1999 and 2000 in
support of this argument. Although other factors can be
considered, the Commission has held that a licensee's gross
income is generally the best indicator of its ability to pay a
forfeiture. See PJB Communications of Virginia, Inc., 7 FCC
Rcd 2088 (1992). In view of the gross revenues indicated by
Hancock's tax returns, we conclude that it is appropriate to
reduce the forfeiture amount from $15,000 to $3,000.
9. We have examined Hancock's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Hancock willfully violated Sections 11.35(a) and
73.49 of the Rules, but we reduce the forfeiture amount from
$15,000 to $3,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80(f)(4)
of the Rules,9 Hancock Broadcasting Corporation IS LIABLE FOR
A MONETARY FORFEITURE in the amount of three thousand dollars
($3,000) for failure to install its EAS equipment so the
monitoring and transmitting functions are available in willful
violation of Section 11.35(a) of the Rules and failure to
enclose its AM antenna tower within an effective locked fence
in willful violation of Section 73.49 of the Rules.
11. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules10 within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.11 Payment shall be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should note the NAL/Acct. No. referenced above.
Requests for full payment under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.12
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Hancock
Broadcasting Corporation, WBSL(AM), 1190 Casino Magic Drive,
Bay St. Louis, Mississippi 39520.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35(a) and 73.49.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132620003 (Enf. Bur., New Orleans Office, released April 4,
2001).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 312(f)(1).
7 Hancock's assertion that the violations were not willful is
also unpersuasive given that Hancock has previously been cited
for essentially the same violations. On January 29, 1992, the
New Orleans Office issued an NOV to Hancock for failure to
enclose its AM antenna tower within an effective locked fence,
failure to install its Emergency Broadcast System (``EBS'')
equipment so that it was capable of functioning properly, and
failure to maintain logs of EBS tests.
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 C.F.R. § 1.80.
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.