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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Southern Media Communications, Inc. ) File Number EB-02-AT-304
)
Licensee of AM Radio Station WBCA, Bay ) NAL/Acct. No.
200232480021
Minnette, Alabama, and Owner of Unregistered )
Antenna Structure Located at 30° 52' 10'' N ) FRN 0004-9693-
58
Latitude by 87° 46' 09'' W Longitude in )
Bay Minnette, Alabama )
FORFEITURE ORDER
Adopted: November 13, 2003 Released: November 17,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eleven thousand
dollars ($11,000) to Southern Media Communications, Inc.
(``SMC''), for willful violation of Section 11.35(a) and
17.4(a) of the Commission's Rules (``Rules'').1 The
noted violations involve, respectively, SMC's failure to
have operational Emergency Alert System (``EAS'')
Equipment and its failure to register its antenna
structure.
2. On September 24, 2002, the Commission's Atlanta,
Georgia, Field Office (``Atlanta Office'') released a
Notice of Apparent Liability for Forfeiture (``NAL'') 2
to SMC for a forfeiture in the amount of eleven thousand
dollars ($11,000) for violation of Sections 11.35(a) and
17.4(a) of the Rules. SMC filed its response to the
NAL on October 10, 2002.
II. BACKGROUND
3. SMC is the licensee of AM broadcast station WBCA, Bay
Minette, Alabama, and owns that station's antenna
structure. According to the Commission's records, the
antenna structure's height above ground is over 200
feet. On August 22, 2002, an agent from the Atlanta
Office inspected WBCA's antenna structure, located at
30° 52' 10'' N Latitude 87° 46' 09'' W Longitude in Bay
Minette, Alabama. The agent observed that there was no
antenna structure registration (``ASR'') number posted
near the base of the structure. The agent interviewed
SMC's president, Walter Brown, on the same day. Mr.
Brown told the agent that he believed the antenna
structure was registered but could not provide any
supporting documentation. On September 3, 2003, the
agent checked the Commission's tower registration
records and determined that WBCA's tower was not
registered. A recent check of the Commission's tower
registration records indicates that WBCA's tower remains
unregistered.
4. On the same day the agent also inspected the EAS
equipment for WBCA, located at the station's main studio
in Atmore, Alabama. The agent found that EAS equipment
was installed and turned on but was not operational. In
particular, when the station's Chief Operator attempted
to send EAS tests, the agent observed that the station
did not transmit the required tests. Additionally, the
agent observed that station logs contained no entries
indicating that EAS tests had been conducted for at
least one year or entries indicating the EAS equipment
had been removed for repair.
5. On September 24, 2002, the Atlanta Office issued a NAL
for a forfeiture in the amount of $11,000 to SMC for
willful violation of Sections 11.35(a) and 17.4(a) of
the Rules. In its response, SMC seeks cancellation of
the proposed monetary forfeiture ``in consideration of
the immediate response . . . and the problem being
fixed.'' SMC provides an invoice dated June 21, 2001,
which indicates that it paid Tuned Circuits, Inc., for
``initial work on tower registration for Bay Minette and
Atmore, other consulting/ repair visit time to date.''
SMC also provides a letter dated September 4, 2002,
certifying that the EAS equipment has been repaired.
III. DISCUSSION
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) 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
SMC'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 17.4(a) of the Rules requires the registration
of antenna structures which require notice to the
Federal Aviation Administration. As provided in Section
17.7(a) of the Rules,6 FAA notification is required for
towers whose height above ground level exceeds 200 feet.
According to the Commission's records, the height of
WBCA's antenna structure is over 200 feet. The antenna
structure is, therefore, required to be registered. On
the basis of the FCC agent's investigation, we find that
the antenna structure is not registered, and that SMC
violated Section 17.4(a) by failing to register it.7
The invoice provided by SMC indicates that SMC engaged a
contractor to perform ``initial work'' to register the
tower. SMC states that it has notified the contractor
of the problem, and instructed the contractor to
register the tower; however, to date, the tower remains
unregistered. As the Commission recently reiterated,
``the Commission has long held that licensees and other
Commission regulatees are responsible for the acts and
omissions of their employees and independent contractors
and has consistently refused to excuse licensees from
forfeiture penalties where actions of employees or
independent contractors have resulted in violations.''8
SMC is, therefore, chargeable with knowledge of its
contractor's failure to register WBCA's antenna
structure.9 We find, therefore, that SMC's violation of
Section 17.4(a) was willful.10
8. Section 11.35(a) of the Rules requires that broadcast
stations have fully operational EAS equipment. The FCC
agent's investigation establishes that SMC did not have
fully operational EAS equipment at its station and
failed to document any efforts to ensure its
operability. SMC does not dispute this violation.
Based on the facts before us, we find that SMC willfully
violated Section 11.35(a) of the Rules.
9. SMC states that it has repaired the EAS equipment. It
is well established, however, that no mitigation of a
monetary forfeiture is warranted by the Commission where
the noted violations have been subsequently corrected by
the subject of the forfeiture.11
10. We have examined SMC'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 SMC willfully violated Section 17.4(a) of
the Rules and find that the proper forfeiture amount is
$11,000.
11. As of the adoption date of this Order, SMC has not yet
complied with Section 17.4(a) of the Rules.
Accordingly, we will require, pursuant to Section 308(b)
of the Act,12 that SMC report to the Enforcement Bureau
no more than thirty (30) following the release of this
Order whether it has come into compliance with Section
17.4(a) by registering the WBCA antenna structure.
SMC's report must be submitted in the form of an
affidavit or declaration, under penalty of perjury,
signed by an officer or director of the licensee. SMC
should note that its continued noncompliance could
result in additional enforcement action by the
Enforcement Bureau.
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,13 SMC IS LIABLE FOR A MONETARY
FORFEITURE in the amount of eleven thousand dollars
($11,000) for its failure to have operational EAS
equipment and for its failure to register its antenna
structure, in willful violation, respectively, of
Sections 11.35(a) and 17.4(a) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant Section 308(b) of
the Act, SMC must submit the report described in
Paragraph 10, above, no more than thirty (30) days
following the release of this order, to the Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Room 7-
A820, Washington, D.C. 20554, Attention: Thomas D. Fitz-
Gibbon, Esq.
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.14 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. 200232480021 and FRN 0004-9693-
58. 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. 20554.15
15. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Southern Media Communications, Inc., at
1318 S. Main Street, Atmore, Alabama 36502.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35(a) and 17.4 (a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480021 (Enf. Bur., Atlanta Office, released September 24,
2002).
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 C.F.R. § 17.7(a).
7 On July 23, 2003, the Wireless Telecommunications Bureau
released a Public Notice, DA-03-2411, granting a 60 day amnesty
period to the owners of certain unregistered antenna structures
identified during an audit. SMC's antenna structure is not among
those identified during the audit and, therefore, SMC is not
entitled to an amnesty period to register its tower.
8 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64
(2002) (internal quotation marks omitted) and cases cited
therein.
9 See Pinnacle Towers, Inc., 18 FCC Rcd 16365 (Enf. Bur.
2003).
10 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).
11 As the Commission stated in Seawest Yacht Brokers, 9 FCC
Rcd 6099, 6099 (1994), ``corrective action taken to come into
compliance with Commission rules or policy is expected, and does
not nullify or mitigate any prior forfeitures or violations.''
See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
12 47 U.S.C. § 308(b).
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.