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Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
J & W Promotions, Inc. )
) File No. EB-02-AT-277
Licensee of AM Radio Station )
WAPZ, Wetumpka, Alabama, and ) NAL/Acct No. 200232480016
Owner of Unregistered Antenna )
Structure Located at 32º 29' ) FRN 0007-4715-50
06'' N Latitude by 086º 12' )
25'' W Longitude Wetumpka,
Alabama
FORFEITURE ORDER
Adopted: October 28, 2003 Released: October 30,
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
($3,000.00) to J & W Promotions, Inc. (``J & W''), for willful
violations of Sections 11.35(a), 17.4(a) and 73.49 of the
Commission's Rules (``Rules'').1 The noted violations involve J
& W's failure to ensure that Emergency Alert System (``EAS'')
equipment was installed and operational, to register its antenna
structure with the Commission, and to maintain an effective
locked fence around the base of the antenna structure.
2. On August 28, 2002, the Commission's Atlanta, Georgia,
Field Office (``Atlanta Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to J & W for a forfeiture in
the amount of eighteen thousand dollars ($18,000) alleging
willful violation of Sections 11.35(a), 17.4(a), and 73.49 of the
Commission's Rules.2 J & W filed its response to the NAL on
November 20, 2002.
II. BACKGROUND
3. J & W is the licensee of AM radio station WAPZ,
Wetumpka, Alabama and owner of the station's antenna structure
located at 32º 29' 06'' North latitude by 086º 12' 25'' West
longitude. On July 25, 2002, an agent from the Atlanta Office
conducted a routine inspection of the EAS equipment for Station
WAPZ. At the time of the agent's inspection, the station had
no EAS equipment installed or operational. The agent found no
station logs indicating that the EAS equipment had been removed
for repair, or that there had ever been operational EAS equipment
at the station. While at the station, the agent inspected the
station's antenna structure. During this inspection, the agent
did not observe an Antenna Structure Registration (``ASR'')
number for the antenna tower anywhere near the base of the
structure. The agent inspected the station with Mr. Robert
Henderson, the station's Chief Executive Officer (``CEO''). Mr.
Henderson stated that J & W owned the antenna and that he
believed that the tower was properly registered3 Additionally,
while inspecting the station's tower, the agent observed that the
waist to chest high base fencing enclosing the AM antenna tower
was missing the top horizontal plank thereby permitting easy
access to a tower which has radio frequency potential at its
base.
4. On August 28, 2002, the Atlanta Office issued a NAL for
a forfeiture in the amount of $18,000 to J & W for the noted
violations. In its response, filed November 20, 2002, J & W
denies any violation and states that its antenna structure is
registered and the equipment and fence were removed for repair at
the time of inspection. Additionally, J & W seeks cancellation
or reduction of the proposed monetary forfeiture. In support
thereof, J & W submits tax returns from 1999 - 2000. Despite
requesting additional time to produce documentation in support of
its request for cancellation of the proposed fine, J & W has
produced no such documentation.
III DISCUSSION
5. The proposed 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) (``Policy Statement''). In examining J & W'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
6. Section 11.35(a) of the Rules requires that broadcast
stations have operational EAS equipment.7 During the inspection
no EAS equipment was present as required by our Rules. No
evidence supporting possession or ownership of EAS equipment by
J& W Promotions, was presented to the agent. No equipment was
present, nor were any records (station logs, a repair order or a
purchase order) presented to the agent which substantiated the
existence of EAS equipment during the agent's presence at the
station. Additionally, J & W's response to the NAL does not
include any documentation to support its claim that the EAS
equipment was removed for repair at the time of the inspection.
Accordingly, we conclude J & W willfully8 violated Section
11.35(a) of the Rules by failing to have operational EAS
equipment installed at the station during the agent's inspection.
7. Section 17.4 of the Rules requires that after July 1,
1996. the owner of any proposed or existing antenna structure
that requires notice of proposed construction to the Federal
Aviation Administration (``FAA'') must register the structure
with the Commission.9 Section 17.7(a) of the Rules requires
tower structures over 60.96 meters (200 feet) in height to have
the owner give notification of the tower's existence to the
Federal Aviation Administration.10 According to the WAPZ
license, its tower is 300 feet in height. Thus, the J & W tower
structure is required by our Rules to be registered. The agent
searched the Commission's ASR registration records subsequent to
the inspection and found no registration for the J & W structure.
Moreover, contrary to the assertions made by J & W that the tower
is now registered, a subsequent search of the Commission's ASR
antenna registration records by Commission personnel as of
October 15, 2003, revealed no record of antenna tower
registration of the J & W tower. Accordingly, we find that J & W
willfully violated Section 17.4 of the Rules by not registering
its tower.
8. Section 73.49 of the Rules requires that antenna towers
having radio frequency potential at the base must be enclosed
within effective locked fences.11 The tower in question has such
potential. During the inspection, with Mr. Henderson present,
the agent observed that a wooden fence about three to three and
one-half feet in height surrounded the tower structure. The
agent also observed that the fence did not effectively enclose
the tower structure because the top portion of one section of the
fence was missing and entrance to the structure was easily
available to anyone simply by stepping over the lower railing
plank remaining in that portion of the fence.12 Contrary to J &
W's response, no documentation has been provided to support J &
W's assertion that the fence was undergoing repair at the time of
the agent's inspection. Accordingly, we find that J & W
willfully violated Section 73.49 of the Rules.
9. J & W in its response to the NAL submits copies of its
1999, 2000 and 2001 federal income tax returns which suggests
that that payment of the proposed forfeiture amount of $18,000
would be a financial hardship. Upon review of this financial
documentation, we find that reduction of the proposed forfeiture
amount to $3,000.00 is warranted on the basis of financial
hardship.
10. We have examined J & W'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 J & W willfully violated Sections 11.35(a), 17.4(a) and
73.49 of the Rules, and that a reduction of the forfeiture amount
to $3,000 is warranted.
11. Because J & W has not provided evidence of subsequent
compliance from the date of investigation, we are concerned
therefore that J & W may continue to violate Sections 11.35(a),
17.4(a) and 73.49 of the Rules even after issuance of the NAL.
Accordingly, we will require, pursuant to Section 308(b) of the
Act,13 that J & W report to the Enforcement Bureau within thirty
(30) days of the release of this Order whether it has established
and installed an operating EAS system, repaired its tower fencing
such that it is an effective locked fence enclosure, and
registered its antenna structure with the Commission. If the
report indicates that J & W has registered the antenna structure
with the Commission, it must specify the antenna registration
number. J & W's report must be submitted in the form of an
affidavit signed by an officer or director of the licensee. If J
& W fails to submit such a report or we find that J & W has not
come into compliance with our rules, we will consider further
appropriate enforcement action.
IV. ORDERING CLAUSES
12. 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,14 J & W Promotions, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of three thousand dollars ($3,000.00)
for failure to have registered the antenna structure with the
Commission, failure to have operational EAS equipment installed
and failure to have an effective locked fence around the antenna
structure, in willful and repeated violation of Sections 11.35(a)
, 17.4(a) and 73.49 of the Rules.
13. IT IS ALSO ORDERED that, pursuant Section 308(b) of the
Act, J & W Promotions, Inc. must submit the report described in
Paragraph 11, above, within 30 days from the release of this
Order, to Federal Communications Commission, Enforcement Bureau,
Spectrum Enforcement Division, 445 12th Street, S.W., Room 7-A
820, Washington, D.C. 20554.
14. 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.15
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.
200232480016 and FRN 0007-4715-50. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.16
15. IT IS FURTHER ORDERED that copies of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to J & W Promotions, Inc., Wetumpka, Al2821 US Highway
231 and to its counsel, Norman Hurst, Jr., Esq., 462- A Sayre
Street, Montgomery, Alabama 36104.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 11.35, 17.4(a) and 73.49.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480016 (Enf). Bur., Atlanta Office, released August 28,
2002).
3 NAL at ¶ 3.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 11.35(a).
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 47 C.F.R. § 17.4(a).
10 47 C.F.R. § 17.7(a).
11 47 C.F.R. § 73.49.
12 The inspector further observed that Mr. Henderson found the
missing railing plank only after a diligent search, because the
plank had been concealed by grass. Mr. Henderson attempted to
reinstall the plank but was unable to do so because the plank was
so warped it could not stay in place within the fence.
13 47 U.S.C. § 308(b)
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.