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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Lighthouse Broadcasting ) File No. EB-02-AT-243
) NAL/Acct. No. 200232480014
Former Licensee of Station WBIC(AM) ) FRN 0007-3941-09
Royston, Georgia )
MEMORANDUM OPINION AND ORDER
Adopted: May 9, 2003 Released: May 13, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
cancel the proposed monetary forfeiture in the amount of
twelve thousand dollars ($12,000) issued to Lighthouse
Broadcasting (``Lighthouse''), former licensee of Station
WBIC(AM), Royston, Georgia, for failure to maintain
operational Emergency Alert System (``EAS'') equipment and
failure to reduce power at WBIC(AM) during post sunset hours
and discontinue operation of WBIC(AM) at night, in apparent
violation of Sections 11.35(a) and 73.1745 of the Commission's
Rules (``Rules'').1 However, we conclude that Lighthouse
violated Sections 11.35(a) and 73.1745 and admonish Lighthouse
for these violations.
2. On July 30, 2002, the Commission's Atlanta, Georgia
Field Office (``Atlanta Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Lighthouse for a
forfeiture in the amount of twelve thousand dollars
($12,000).2 Lighthouse filed a response to the NAL on October
3, 2002.
II. BACKGROUND
3. On June 18, 2002, an agent from the Atlanta Office
monitored WBIC(AM)'s signal before sunset, through sundown,
and into the nighttime hours until 11 p.m. Eastern Daylight
Savings Time (``EDT''), when the station discontinued
operation. The agent conducted field strength measurements of
the station's signal during this time period and determined
that WBIC(AM) failed to reduce power in accordance with its
post sunset authority and failed to discontinue operation at
10:45 p.m. EDT in accordance with its station authorization.3
4. On June 19, 2002, the agent again monitored WBIC(AM)'s
signal before sunset, through sundown, and into the nighttime
hours, conducted field strength measurements, and determined
that the station again failed to reduce power according to its
post sunset authority and discontinue operation at 10:45 p.m.
EDT. The agent noted that the station signed off the air at
11:23 p.m. EDT, but continued to transmit an unmodulated
carrier until at least midnight.
5. On June 20, 2002, the agent conducted an inspection of
WBIC(AM) at its main studio with Louis Hawkins, the general
manager of the station. The agent observed that the EAS
encoder/decoder was turned on, but station staff was unable to
demonstrate operation of the equipment. Mr. Hawkins provided
invoices indicating that a new EAS power supply was ordered on
May 9, 2002, and installed on May 16, 2002, but there was no
evidence that any tests or alerts had been received or sent
since that date. There were also no log entries or other
evidence to indicate that the EAS equipment had ever been in
operation or taken out of service. The agent also found that
the EAS equipment appeared to be incapable of receiving two
EAS sources. Furthermore, the agent noted that on the May 16,
2002 invoice for installation of the power supply, the
engineer indicated that reception was ``very poor on the two
monitored stations'' and that ``better receivers and an
outside antenna'' should be installed.
6. On July 8, 2002, the Atlanta Office received a copy of
a report dated July 5, 2002, written by WBIC(AM)'s contract
engineer. The report indicated that two new FM receivers had
been installed, but that there was still an apparent problem
with the EAS encoder/decoder and that it was being taken out
of service for further trouble shooting or repair.
7. On July 9, 2002, the agent interviewed by telephone
Joseph Hood, the owner of Lighthouse. Mr. Hood admitted that
the EAS equipment had been broken several months prior to the
time that Mr. Hawkins had started employment as general
manager of the station in May 2002. Mr. Hood stated that he
could not afford to have the equipment repaired. He also
stated that he did not have any logs or other evidence to
demonstrate that the EAS equipment had ever been operational
or that it had been taken out of service for repair.
8. On July 30, 2002, the Atlanta Office issued an NAL
finding Lighthouse apparently liable for a $12,000 forfeiture
for failure to maintain operational EAS equipment in willful
and repeated violation of Section 11.35(a) of the Rules and
failure to reduce power at WBIC(AM) during post sunset hours
and to discontinue operation of WBIC(AM) at night in willful
and repeated violation of Section 73.1745 of the Rules. In
his response to the NAL, Mr. Hood, the owner of Lighthouse,
does not dispute that these violations occurred. However, Mr.
Hood states that at the time the unauthorized nighttime
operation of the station was observed, he was no longer
involved with the daily operation of the station. In this
regard, Mr. Hood states that Lighthouse ``leased'' the station
to Peachland Music beginning April 1, 2002.4 Mr. Hood further
states that he spoke with Mr. Hawkins and instructed him to
discontinue all after hours operation of the station.
Additionally, Mr. Hood states that he could not afford to have
the EAS equipment repaired, but that Mr. Hawkins had the
equipment repaired and it is now functioning properly.
Finally, Mr. Hood asserts that he cannot afford to pay the
forfeiture. In support of this assertion, Mr. Hood submits
his tax returns for 2000 and 2001 and notes that he is selling
the station for substantially less than he paid for it two
years ago.5
III. DISCUSSION
9. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),6 Section 1.80 of the Rules,7 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 Lighthouse'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.8
10. 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. At the
time of the inspection on June 20, 2002, WBIC(AM)'s EAS
equipment was not operational. Although there had been recent
attempts to repair the EAS equipment prior to the inspection,
there were no logs or other evidence indicating that the
equipment had ever been operational or had been taken out of
service for repair. In addition, Mr. Hood admitted to the
agent that the equipment had been broken several months prior
to the inspection. Accordingly, we conclude that Lighthouse
violated Section 11.35(a) of the Rules.
11. Section 73.1745 of the Rules provides that no broadcast
station shall operate at times, or with modes or power, other
than those specified in the station authorization. WBIC(AM)
is a daytime-only station, with limited authorization to
operate during post sunset hours in the month of June at
reduced power. On June 18 and June 19, 2002, WBIC(AM) failed
to reduce power during post sunset hours and to discontinue
operation after expiration of the authorized post sunset
hours. Lighthouse does not dispute that these violations
occurred. Accordingly, we find that Lighthouse violated
Section 73.1745 of the Rules.
12. Mr. Hood indicates that he was no longer involved with
the daily operation of WBIC(AM) at the time the unauthorized
nighttime operation of the station was observed. However, as
licensee of WBIC(AM), Lighthouse was required to maintain
control over the operation of the station and was responsible
for acts and omissions of its agents.9 Moreover, while Mr.
Hood states that the violations have been corrected, the
Commission has stated that remedial actions taken to correct a
violation, while commendable, are not mitigating factors
warranting reduction of a forfeiture.10
13. Mr. Hood also asserts that he is unable to pay the
proposed $12,000 forfeiture. The Commission has repeatedly
held that a company's gross revenues are the best indicator of
its ability to pay a forfeiture.11 The financial information
submitted by Mr. Hood supports his claim that payment of a
$12,000 forfeiture would impose a hardship on Lighthouse.
Furthermore, we note that Lighthouse has recently assigned the
license for WBIC(AM) and is no longer a Commission licensee.12
Therefore, we conclude that cancellation of the forfeiture is
warranted. Nevertheless, we admonish Lighthouse for its
violations of Sections 11.35(a) and 73.1745 of the Rules.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Sections
0.111, 0.311 and 1.80(f)(4) of the Rules,13 the forfeiture in
the amount of twelve thousand dollars ($12,000) proposed in
the July 30, 2002 NAL issued to Lighthouse Broadcasting IS
CANCELLED.
15. IT IS FURTHER ORDERED that Lighthouse Broadcasting IS
ADMONISHED for failure to maintain operational EAS equipment
at WBIC(AM) in violation of Section 11.35(a) of the Rules and
failure to reduce power at WBIC(AM) during post sunset hours
and discontinue operation of WBIC(AM) at night in violation of
Section 73.1745 of the Rules.
16. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to Lighthouse Broadcasting, 2735 Bryant Park Road,
Canon, Georgia 30520.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35(a) and 73.1745.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480014 (Enf. Bur., Atlanta Office, released July 30, 2002).
3 WBIC(AM) is a daytime-only station, licensed to operate at
230 watts. The station has post sunset authority in the month of
June to operate at 3.5 watts from 8:45 to 9:45 p.m. EDT and then
1.8 watts from 9:45 to 10:45 p.m. EDT. The station has no
authority to operate beyond 10:45 p.m. EDT.
4 We take no view at this point whether there may have been an
unauthorized transfer of control of the station.
5 An application to assign the license for WBIC(AM) from
Lighthouse to Diane E. Hawkins was accepted for filing on
February 4, 2003 (File No. BAL-20030131ABU).
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 See Eure Family Limited Partnership, 17 FCC Rcd 21861
(2002); MTD, Inc., 6 FCC Rcd 34, 35 (1991); Wagenvoord
Broadcasting Co., 35 FCC 2d 361 (1972).
10 See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
11 See Long Distance Direct, Inc., 15 FCC Rcd 3297, 3305
(2000); PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1991). The Commission has also stated that if gross
revenues are sufficiently great, the existence of operating
losses does not by itself mean that a company cannot afford to
pay a forfeiture. Id.
12 The Commission staff granted the application to assign the
license for WBIC(AM) on March 13, 2003, and the assignment was
consummated on April 3, 2003.
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).