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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-AT-239
)
Farnell O'Quinn ) NAL/Acct. No. 200232480012
Licensee of Radio Station WUFF )
Eastman, Georgia ) FRN 0004-9860-22
FORFEITURE ORDER
Adopted: August 7, 2003 Released: August 11,
2003
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 Farnell O'Quinn (``O'Quinn''), licensee of radio
station WUFF, Eastman, Georgia, for willful violation of Section
73.1350(a) of the Commission's Rules (``Rules'').1 The noted
violation involves O'Quinn's failure to operate in accordance
with the terms of the station authorization.
2. On July 8, 2002, the Commission's Atlanta, Georgia
Field Office (``Atlanta Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of four thousand
dollars ($4,000) to O'Quinn for the noted violation.2
II. BACKGROUND
3. On June 11, 2002, an agent from the Atlanta Office
inspected the WUFF transmitter site and antenna structure
registration number 1019521 near Eastman, Georgia.3 The
geographical coordinates determined by the agent showed that the
antenna structure was located at 32º 13' 18"N Latitude, 083º 13'
04"W Longitude. The licensed geographical coordinates for WUFF
are 32º 13' 35"N Latitude, 083º 13' 10"W Longitude. The
geographical coordinates specified in the structure's Antenna
Structure Registration are 32º 13' 36"N Latitude, 083º 13' 10"W
Longitude. This places the actual location of the WUFF
transmitter site and antenna structure more than 1/3 of a mile
South/Southeast of the authorized location. On July 8, 2002, the
Atlanta Office issued an NAL in the amount of $4,000 to O'Quinn
for failure to operate in accordance with the terms of the
station authorization.
4. In its response to the NAL, O'Quinn asserts it has
never been assessed a forfeiture by the Commission. O'Quinn also
argues that it has the best public file in the state and protects
its airwaves by ensuring that no profanity is used on its
station. With respect to the apparent violation of Section
73.1350(a), O'Quinn argues that it was unaware of the incorrect
coordinates. O'Quinn claims that it hired three highly qualified
engineers to provide the coordinates, and that these engineers
gave O'Quinn the incorrect coordinates. O'Quinn adds that it has
been using the same coordinates for the past 30 years. O'Quinn
argues that it is a small market station and suggests that it is
experiencing financial difficulties. O'Quinn claims that it has
hired another engineer to file Forms 301 and 302 with the
Commission and is notifying the Federal Aviation Administration
of the new coordinates.4 For these reasons, O'Quinn requests
cancellation of the proposed forfeiture.
III. DISCUSSION
5. The forfeiture amount in this case was proposed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended, (``Act''),5 Section 1.80 of the Rules,6 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 O'Quinn'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.7
6. Rescission of the proposed forfeiture is not warranted
in this case. We note that the NAL proposed a forfeiture for
failure to operate in accordance with the station's
authorization. Thus, O'Quinn's arguments regarding its public
file and refraining from the use of profanity on its station are
immaterial. Moreover, O'Quinn's argument that its engineers gave
it the wrong coordinates does not provide a basis for rescission
or reduction of the proposed forfeiture. The Commission has long
held that licensees are responsible for the acts of its agents.8
We therefore find that O'Quinn's violation of Section 73.1350 is
willful.9 Furthermore, O'Quinn's remedial efforts to correct the
violation are not a mitigating factor.10 Moreover, although
O'Quinn suggests that it is unable to pay the proposed
forfeiture, it does not provide any financial documentation from
which we can assess its ability to pay. Therefore, we decline to
cancel or reduce the proposed forfeiture on the basis of
inability to pay. Finally, we will consider O'Quinn's contention
that it has never been assessed a forfeiture. Based on O'Quinn's
overall history of compliance, we will reduce the forfeiture
amount to $3,000.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,11 Farnell O'Quinn IS LIABLE FOR A MONETARY FORFEITURE
in the amount of three thousand dollars ($3,000) for failure to
operate in accordance with the terms of the station authorization
in willful violation of Section 73.1350(a) of the Rules.
8. 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.12
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.
and FRN 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. 20554.13
9. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by First Class and Certified Mail, Return Receipt
Requested, to Farnell O'Quinn, 731 College Street, Eastman,
Georgia 31023.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 73.1350(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct No.
200232480012 (Enf. Bur., Atlanta Office, released July 8, 2002).
3 O'Quinn is licensee of radio station WUFF as well as owner of
the antenna structure used by WUFF.
4 We note that O'Quinn filed an application with the Commission
on October 28, 2002, to correct the coordinates. See File No.
BP-20021028AAJ. This application was granted June 2, 2003.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 See Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64
(2002) (stating that licensees and other Commission regulatees
are responsible for the acts and omissions of their employees and
independent contractors and that the Commission has refused to
excuse licensees from forfeiture penalties where actions of
employees or independent contractors have resulted in
violations); Charter Communications VI, LLC, 17 FCC 16516 (2002)
(stating that licensees are responsible for the acts or omissions
of their employees); MTD, Inc., 6 FCC Rcd 34, 35 (1991) (stating
that the Commission has long held that licensees are responsible
for the negligent acts or omissions of their employees and that
this responsibility is not lessened when contractors are used);
Wagenvoord Broadcasting Co., 35 FCC 2d 361 (1972) (stating that
the negligent acts or omissions of an employee or independent
contractor do not relieve a licensee of its responsibility to
comply with the Commission's rules).
9 The term ``willful,'' as used in Section 503(b) of the Act,
does not require a finding that the rule violation was
intentional or that the violator was aware that it was committing
a rule violation. Rather, the term ``willful'' simply requires
that the violator knew it was taking the action in question,
irrespective of any intent to violate the Commission's rules.
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).
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 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.