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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
WBLB, Inc. ) File No. EB-03-NF-061
Licensee of Station WBLB(AM) ) NAL/Acct. No. 200432640001
Pulaski, Virginia ) FRN 0009992025
MEMORANDUM OPINION AND ORDER
Adopted: December 7, 2004 Released: December
9, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''),
we grant in part and deny in part the petition for
reconsideration filed by WBLB, Inc. (``WBLB''), licensee
of Station WBLB(AM), Pulaski, Virginia,1 of the Forfeiture
Order issued on June 14, 2004,2 and reduce the assessed
forfeiture amount to one thousand five hundred dollars
($1,500). The Forfeiture Order imposed a monetary
forfeiture in the amount of eight thousand dollars
($8,000) for repeated violation of the Emergency Alert
System (``EAS'') requirements of Section 11.35(a) of the
Commission's Rules (``Rules'').3
II. BACKGROUND
2. On March 26, 2003 and on February 26, 2004, the
Commission's Norfolk, Virginia Field Office (``Norfolk
Office'') conducted on-site inspections of Station
WBLB(AM)'s facilities. The station's EAS equipment
malfunctioned (i.e., did not interrupt programming and did
not transmit EAS attention signals) during both
inspections. As a result of the inspections, the Norfolk
Office released a Notice of Apparent Liability for
Forfeiture (``NAL'').4 The NAL found that WBLB apparently
repeatedly violated Section 11.35(a) of the Rules and
proposed a $8,000 forfeiture.
3. On June 14, 2004, the Enforcement Bureau
(``Bureau'') released a Forfeiture Order,5 having had no
record of receiving response to the NAL. The Bureau
received WBLB's petition on June 25, 2004.6 In its
petition, WBLB did not dispute that its EAS equipment had
malfunctioned during the Norfolk Office's March 2003 and
February 2004 inspections. However, WBLB sought
cancellation or reduction of the assessed forfeiture based
on its corrective actions, overall history of compliance
and inability to pay.
III. DISCUSSSION
4. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act
of 1934, as amended (``Act''),7 Section 1.80 of the
Rules,8 and the Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines.9 In examining WBLB's petition,
Section 503(b)(2)(D) of the Act requires us to 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 such other matters as justice may
require.10 We will respond to each of WBLB's claims
separately below.
5. First, WBLB claimed that it corrected and brought
the EAS equipment into compliance. In support, WBLB
submitted a February 27, 2004 invoice, which indicates
that the station's EAS audio switch was replaced and that
its equipment was repaired and is now fully operational.11
The Commission expects licensees to correct violations
observed during an inspection,12 but such corrective
measures do not mitigate or warrant forfeiture
cancellations or reductions for past violations.13
Moreover, we note that WBLB implemented corrective
measures only after the second inspection.
6. Second, WBLB claimed that Station WBLB(AM) has an
unblemished history of serving its community in compliance
with Commission regulations. Our search of Commission,
Bureau and Field Office decisions confirms that Station
WBLB(AM) has no record of prior sanctions. After
considering WBLB's overall history, we conclude that a
reduction of the forfeiture amount to $6,500 is
appropriate.14
7. Finally, WBLB claimed that payment of the assessed
forfeiture would pose a financial hardship on its ``small
hometown gospel radio station,'' which is located in the
Appalachian Region of southwestern Virginia. In support,
WBLB submitted tax returns for 2000, 2001 and 2002. In
analyzing a financial hardship claim, the Commission
generally considers gross revenues to be a reasonable and
appropriate yardstick in determining whether a licensee is
able to pay the assessed forfeiture.15 After reviewing
WBLB's claim and supporting documentation, we believe that
payment of the $6,500 forfeiture would pose a financial
hardship. We thus conclude that a further reduction of
the proposed forfeiture amount to $1,500 is appropriate.16
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act17 and Section 1.106 of the Rules,18
the Petition for Reconsideration filed by WBLB, Inc. of
the Bureau's June 14, 2004, Forfeiture Order IS GRANTED to
the extent noted herein and DENIED in all other respects.
9. Payment of the $1,500 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.19
Payment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by
check or money order may be mailed to Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL
60661. Payment by wire transfer may be made to ABA Number
071000013, receiving bank Bank One, and account number
1165259. 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.
20554.20
10. IT IS FURTHER ORDERED that a copy of this
Order shall be sent by First Class and Certified Mail
Return Receipt Requested to WBLB, Inc., 3570 Robinson
Tract Road, P.O. Box 150, Pulaski, Virginia 24301, and by
first class mail to Kathy Nipper, 751 East Main Street,
Pulaski, Virginia 24301.
FEDERAL COMMUNICATIONS
COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1On October 1, 2003, WBLB's license expired, and on January
3, 2004, its call sign was deleted and changed to DWBLB.
WBLB had been operating under a grant of Special Temporary
Authority, which was issued on December 16, 2003, and which
expired on June 16, 2004.
2WBLB, Inc., 19 FCC Rcd 10218 (Enf. Bur. 2004).
347 C.F.R. § 11.35(a) (requiring broadcast stations to
install functional generating, as well as receiving, EAS
equipment ``so that the monitoring and transmitting
functions are available during the times the stations ...
are in operation).
4WBLB, Inc., NAL/Acct. No. 200432640001 (Enf. Bur., Norfolk,
Virginia Office, released March 11, 2004).
5See note 2, supra.
6According to WBLB, it sent the pleading captioned
``Response of Apparent Liability for Forfeiture'' on March
30, 2004, and resent the pleading on June 21, 2004, after
it received the Forfeiture Order. Because the Bureau has
no record of receiving the initial filing, we will treat
and consider the pleading as a petition for reconsideration
of the Forfeiture Order under Section 1.106 of the Rules,
47 C.F.R. § 1.106.
747 U.S.C. § 503(b).
847 C.F.R. § 1.80.
912 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Policy Statement'').
1047 U.S.C. § 503(b)(2)(D).
11Additionally, it has been noted that WBLB's station
engineer contacted the Norfolk Office on February 27, 2004,
to advise that the station replaced the audio switch, fully
repairing the EAS equipment. See NAL at ¶ 3.
12See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875
¶ 26 (2002) (finding that all Commission licensees and
regulatees are ``expected to promptly take corrective
action when violations are brought to their attention,''
and that such corrective action does not warrant reduction
or cancellation of a forfeiture for past violations); see
also Seawest Yacht Brokers, 9 FCC Rcd at 6099, 6099 ¶ 7
(1994); TCI Cablevision of Maryland, Inc., 7 FCC Rcd 6013,
6014 ¶ 8 (1992); Sonderling Broadcasting Corp., 69 FCC 2d
289, 291 (1978); South Central Communications Corp., 18
FCC Rcd 700, 702-03 ¶ 9 (Enf. Bur. 2003).
13Id.
14See, e.g., Rotijefco, Inc., 18 FCC Rcd 14629, 14631 ¶ 8
(Enf. Bur. 2003); Southern Rhode Island Public
Broadcasting, Inc., 15 FCC Rcd 8115, 8117-18 ¶ 8 (Enf. Bur.
2000); Aurio A. Matos and Juan Carlos Matos, DA 99-1931 ¶ 7
(MMB 1999).
15See Forfeiture Policy Statement, 12 FCC Rcd at 17106-07 ¶
43.
16See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089, ¶ 8 (1992).
1747 U.S.C. § 405.
1847 C.F.R. § 1.106.
1947 U.S.C. § 504(a).
20See 47 C.F.R. § 1.1914.