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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
BanJo Communications Group, Inc.) File Nos. EB-02-BF-058
) EB-02-BF-059
Licensee of Stations WCHN(AM), WBKT-FM, ) EB-
02-BF-060
and WKXZ-FM ) NAL/Acct. No. 200232280001
) FRN 0003-7815-98
Oneonta, New York )
FORFEITURE ORDER
Adopted: December 20, 2002 Released: December 23,
2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twelve thousand dollars
($12,000) to BanJo Communications Group, Inc. (``BanJo''),
licensee of Stations WCHN(AM), WBKT-FM, and WKYZ-FM, Oneonta,
New York, for willful and repeated violations of Sections
1.89(b) and 11.35(a) of the Commission's Rules (``Rules'').1
The noted violations involve BanJo's failure to respond to
Notices of Violation (``NOVs''), failure to maintain
operational Emergency Alert System (``EAS'') equipment, and
failure to determine and log the reasons why required monthly
and weekly EAS tests were not received.2
2. On June 18, 2002, the Commission's Buffalo, New York
Resident Agent Office (``Buffalo Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to BanJo for a
forfeiture in the amount of twenty three thousand dollars
($23,000).3 BanJo filed a response to the NAL on August 12,
2002.
II. BACKGROUND
3. On March 14, 2002, an agent from the Buffalo Office
inspected Stations WCHN(AM), WBKT-FM, and WKYZ-FM to verify
the stations' compliance with the EAS requirements. The agent
observed that the three stations were sharing a common control
point and a single set of EAS equipment. Based on an
examination of the EAS equipment and the stations' records,
the agent determined that the three stations did not have an
operational EAS system. The EAS equipment was out of paper,
and no one at the stations was able to locate or install a new
roll of paper. In addition, there were no EAS logs and the
stations had no record of receiving or transmitting weekly or
monthly EAS tests for at least two years. Further, no one at
the stations was able to tell the agent the last time an EAS
test was received or transmitted.
4. On March 25, 2002, the Buffalo Office issued three
separate NOVs citing BanJo for violations observed during the
inspection of Stations WCHN(AM), WBKT-FM, and WKYZ-FM. The
NOVs cited BanJo for failure to maintain operational EAS
equipment and failure to determine and log the reasons why
required monthly and weekly EAS tests were not received.
BanJo did not respond to the NOVs. On April 30, 2002, the
Buffalo Office contacted BanJo's president to ask why BanJo
had not responded to the NOVs. BanJo's president stated that
the responses would be in the mail within the next two days.
However, the Buffalo Office did not receive responses to the
NOVs from BanJo until after issuance of the NAL.
5. On June 18, 2002, the Buffalo Office issued an NAL
finding BanJo apparently liable for a forfeiture in the amount
of $23,000 for failure to respond to the three NOVs in willful
and repeated violation of Section 1.89(b) of the Rules,
failure to maintain operational EAS equipment in willful and
repeated violation of Section 11.35(a) of the Rules, and
failure to determine and log the reasons why EAS monthly and
weekly tests were not received in willful and repeated
violation of Section 11.35(a) of the Rules. The NAL noted
that the base forfeiture amount for failure to maintain
operational EAS equipment is $8,000, the base forfeiture
amount for failure to respond to Commission communications is
$4,000, and the base forfeiture amount for failure to maintain
required records is $1,000. Since each of the three stations
failed to respond to the NOV and failed to maintain the
required EAS logs, the NAL proposed a total forfeiture of
$12,000 for failure to respond to the three NOVs and a total
forfeiture of $3,000 for failure to maintain EAS logs.
6. In its response to the NAL, BanJo states that it fully
accepts the responsibility and associated liability for the
EAS violations. However, Banjo requests cancellation of the
forfeiture proposed for failure to respond to the NOVs. In
this regard, BanJo states that it had its contract engineer
prepare responses to the NOVs, but these responses were never
sent to the Buffalo Office due to a miscommunication between
BanJo's president and the contract engineer. In addition,
BanJo provides a letter from the contract engineer, who states
that he prepared and e-mailed the responses to BanJo's
president and assumed that BanJo's president was going to
submit the responses, but that BanJo's president assumed that
the contract engineer was going to submit the responses. The
contract engineer also provides copies of the responses to the
NOVs which he prepared and asserts that the dates on these
responses demonstrate the timeliness of the responses.
Finally, BanJo notes that this is the first and only time it
has been found to be in violation of the Commission's rules.
III. DISCUSSION
7. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),4 Section 1.80 of the Rules,5 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). In examining BanJo'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.6
8. Section 1.89(b) of the Rules requires that a response
to an NOV be submitted to the office originating the NOV
within 10 days, or such period as may be specified in the NOV.
Each of the three NOVs issued to BanJo by the Buffalo Office
on March 25, 2002 stated that a response was required within
10 days. Thus, the responses were required to be received at
the Buffalo Office by April 4, 2002. BanJo did not submit
responses to the three NOVs until after the NAL was issued on
June 18, 2002. BanJo states that the failure to submit the
responses to the NOVs was the result of a miscommunication
between its president and its contract engineer. In addition,
BanJo's contract engineer states that the dates on the
responses demonstrate the timeliness of the responses.
However, under the Commission's rules, it is the date that a
document is received by the Commission, not the date on the
face of the document, that determines whether the document is
timely.7 In any event, we note that the responses are dated
May 9, 2002. Therefore, even assuming that there was a
miscommunication between BanJo's president and its contract
engineer as to who was going to submit the NOV responses, it
appears that the responses were not prepared until May 9,
2002, more than a month after they were due and ten days after
BanJo's president told the Buffalo Office that the responses
would be in the mail within two days. Accordingly, we
conclude that BanJo willfully8 and repeatedly9 violated
Section 1.89(b) by failing to respond to the NOVs.
Nevertheless, we note that the three NOVs addressed the same
violations with respect to a single set of EAS equipment
shared by the three stations. Under the circumstances, we
think that it is appropriate to reduce the forfeiture amount
for the three violations of Section 1.89(b) from $12,000 to
$4,000, the base forfeiture amount for a single violation of
Section 1.89(b).
9. Section 11.35(a) of the Rules requires broadcast
stations to install and maintain operational EAS equipment so
that monitoring and transmitting functions are available
during the times when the station is in operation. Section
11.35(a) also requires broadcast stations to determine the
cause of any failure to receive required monthly and weekly
EAS tests and to make appropriate entries in their EAS logs
indicating the reasons why such tests were not received.
BanJo states that it fully accepts the responsibility and
associated liability for the EAS violations. Accordingly, we
conclude that BanJo willfully and repeatedly violated Section
11.35(a) of the Rules.
10. As noted above, we have reduced the forfeiture amount
for BanJo's violations of Section 1.89(b) from $12,000 to
$4,000, resulting in a reduction of the total forfeiture
amount for BanJo's violations of Section 1.89(b) and 11.35(a)
from $23,000 to $15,000. BanJo notes that this is the first
and only time it has been found to be in violation of the
Commission's rules. After reviewing Commission records, we
conclude that a further downward adjustment of the forfeiture
amount based on BanJo's past history of compliance is
warranted. We accordingly reduce the total forfeiture amount
for BanJo's violations of Sections 1.89(b) and 11.35(a) from
$15,000 to $12,000.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,10 BanJo Communications Group, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of twelve thousand dollars
($12,000) for willful and repeated violations of Sections
1.89(b) and 11.35(a) of the Rules.
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules 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 may 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 reference NAL/Acct. No. 200232280001 and FRN
0003-7815-98. 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
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to James Vincent Johnson, President, BanJo
Communications Group, Inc., 34 Chestnut Street, Oneonta, New
York 13820.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 1.89(b) and 11.35(a).
2 Although the NAL correctly noted that Section 11.35(a) of
the Rules requires broadcast stations to determine the cause of
any failure to receive required monthly and weekly EAS tests and
to make appropriate entries in their EAS logs indicating the
reasons why such tests were not received, the NAL incorrectly
cited BanJo for violation of Section 11.61(a) of the Rules, 47
C.F.R. § 11.61(a), for its failure to determine and log the
reasons why monthly and weekly EAS tests were not received. The
incorrect rule cite has no impact on this case because the facts
and circumstances make it clear that the rule that was violated
was Section 11.35(a). However, we are taking this opportunity to
correct the cite and will refer to this violation as a violation
of Section 11.35(a) throughout the remainder of this Order.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232280001 (Enf. Bur., Buffalo Office, released June 18, 2002).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 See 47 C.F.R. § 1.7 (stating, in relevant part, that
``pleadings and other documents are considered to be filed with
the Commission upon their receipt at the location designated by
the Commission.'')
8 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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).
9 Section 312(f)(2) of the Act provides that ``[t]he term
`repeated,' ... 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. § 312(f)(2).
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.