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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Halifax Christian Community ) File Number EB-04-TP-054
Church, Inc. Licensee of WFBO- ) NAL/Acct. No. 200532700003
LP ) FRN: 0006871339
Flagler Beach, Florida )
)
FORFEITURE ORDER
Adopted: February 7, 2005
Released: February 9, 2005
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to Halifax Christian Community Church, Inc.,
(``Halifax'') licensee of low power FM (``LPFM'') radio
station WFBO-LP, Flagler Beach, Florida, for willful and
repeated violation of Sections 11.35, 73.840, 73.845, and
73.1660(a)(2) of the Commission's Rules (``Rules'').1 The
noted violations involve Halifax's failure to install and
maintain operational Emergency Alert System (``EAS'')
equipment and its overpower operation with a non-certified
transmitter from an unauthorized location.
II. BACKGROUND
2. In response to a complaint, agents of the
Enforcement Bureau's Tampa Office (``Tampa Office'')
investigated station WFBO-LP in Flagler Beach, Florida. On
February 20, 2004, before inspecting the main studio, the
agents observed the station's transmitter operating at 450
watts, a level significantly above the station's authorized
power of 27 watts. The transmitter consisted of a non-
certified exciter attached to a non-certified 500-watt
amplifier and was located approximately 1½ miles from its
licensed geographic coordinates. During the inspection of
the main studio, the agents observed that the station had
EAS equipment but had not installed any of it. The station
owner was unable to product any EAS logs and stated that the
station had never installed any EAS equipment and that he
planned to install the equipment that weekend. The station
owner also acknowledged that the transmitter was not located
at its licensed coordinates, had always been located in its
current location, and had been operating overpower to
increase its coverage. The agents returned to the
transmitter site with the station owner, who lowered the
transmitter's power level before the agents reached the
power meter. During this inspection, the agents observed
the transmitter operating at 320 watts.
3. On December 6, 2004, the Tampa Office issued a
Notice of Apparent Liability for Forfeiture to Halifax in
the amount of twenty-one thousand dollars ($21,000) for the
apparent willful and repeated violation of Sections 11.35,
73.840, 73.845, and 73.1660(a)(2) of the Rules.2 Halifax
filed a response to the NAL requesting partial cancellation
or reduction of the proposed forfeiture on January 7, 2005.
III. DISCUSSION
4. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,3
Section 1.80 of the Commission's Rules (``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) (``Forfeiture Policy Statement''). In
examining Halifax'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
5. Section 11.35(a) of the Rules states that
broadcast stations are responsible for ensuring that
required EAS equipment is installed so that the monitoring
and transmitting functions are available during the times
the station is in operation.6 If the EAS encoder or decoder
becomes defective, a licensee may operate without the
defective EAS equipment for 60 days, pending the equipment's
repair.7 A licensee must log the date and time the
equipment was removed and restored to service.8 If the
repair or replacement of defective EAS equipment cannot be
completed within 60 days, the licensee must submit an
informal request to the District Director of the FCC field
office serving the area for additional time to repair the
defective equipment.9 In addition, Section 73.3549 of the
Rules allows licensees to request from the Audio Division of
the Media Bureau an extension of authority to operate
without the required EAS equipment, beyond the time granted
by the District Director.10
6. In its response to the NAL, Halifax claims that it
installed its EAS equipment on October 21, 2003, but that
its EAS decoder never communicated properly with the
printer. Because manually logging messages became too
burdensome, Halifax asserts it removed its EAS decoder for
repair on an unspecified date. It claims to have received
the repaired equipment on February 16, 2004. Because it
claims to have requested an extension of authority to
operate without an EAS decoder from the Media Bureau in a
letter dated December 22, 2003, Halifax asserts it was in
compliance with the Rules even though its EAS unit was not
installed or operational during the agents' inspection and
requests cancellation of the proposed EAS forfeiture.
7. Although Halifax asserts it had previously
installed operational EAS equipment at the station, Halifax
failed to produce any EAS logs, which would document when
the equipment was installed, when tests were conducted, when
the EAS equipment was removed for repair, and when the
equipment was returned after repair, or other evidence to
corroborate its response to the NAL. Given that Halifax
failed to provide corroboration of its response to the NAL
and failed to disclose to the agents the assertions
contained in its NAL on February 20, 2004, we must rely on
the evidence that the agents obtained during its inspection.
On February 20, 2004, although EAS equipment was present at
the station, none of it was installed or operational. On
that day, there was no evidence at the station that any EAS
equipment had ever been installed. Finally, in response to
questions regarding its EAS equipment, the station owner
contemporaneously stated that he had not installed EAS
equipment before and planned on installing the equipment
that weekend. Thus, based on the evidence, we find that
Halifax willfully11 and repeatedly12 violated Section 11.35
by failing to install and maintain operational EAS
equipment. We also note that Halifax's assertion that it
was in compliance with the Rules, because it submitted a
request for an extension of authority to operate without an
EAS decoder is incorrect. Even if Halifax filed the
extension request, it did not submit an initial request with
the District Director of the Tampa Office, as required by
Section 11.35(c), and did not receive approval from any
Commission representative to operate without EAS equipment
for more than 60 days.13
8. Section 73.840 of the Rules requires the station
to maintain the transmitter power output (``TPO'') as near
as practicable to its authorized value, but not less than
90% of the minimum TPO, nor greater than 105% of the maximum
authorized TPO. 14 Halifax does not deny that it operated
Station WFBO-LP's transmitter at over 1000% of its
authorized power on more than one day. Thus, based on the
evidence, we find that Halifax willfully and repeatedly
violated Section 73.840 of the Rules by operating its
station at significantly greater power than its
authorization allows. We are particularly troubled that
Halifax operated its station at such a high level for a
prolonged period of time to increase its coverage and
attempted to cover up the extent of its violation during the
inspection.
9. Section 73.845 of the Rules requires each LPFM
station to maintain and operate its station in accordance
with the terms of its station authorization.15 Station
WFBO-LP's station authorization specified its authorized
transmitter location by geographic coordinates. Halifax
does not deny that its transmitter was located approximately
1-1/2 miles away from its authorized location on more than
one day. Thus, based on the evidence, we find that Halifax
willfully and repeatedly violated Section 73.845 of the
Rules by operating its station at an unauthorized location.
10. Section 73.1660(a)(2) of the Rules requires every
LPFM station to use a certified transmitter.16 In its
response to the NAL, Halifax claims that its amplifier was
certified, because it had an FCC Identifier.17 Halifax
admits, however, that, prior to March 17, 2004, it used a
non-certified LPFM exciter in violation of the Rules.
Halifax claims it was forced to purchase a non-certified
transmitter to comply with the deadline in its construction
permit, as no certified transmitters were available on the
market at that time, and could not afford to purchase an
additional certified transmitter when they became
commercially available. Halifax, therefore, asks not to be
held accountable for this violation, as it obtained a
certified transmitter on March 17, 2004. We disagree. Even
if there were no certified LPFM transmitters available for
sale before its construction permit expired, Halifax could
have requested from the Commission a waiver of Section
73.1660(a)(2) of the Rules or an extension of its
construction permit. Halifax, however, did not contact the
Commission to request a waiver or extension and instead
chose to ignore Section 73.1660 altogether. Moreover,
Halifax's remedial actions to replace its transmitter after
the agents' inspection are expected and do not warrant a
cancellation or reduction in the forfeiture amount.18
Therefore, based on the evidence, we find that Halifax
willfully and repeatedly violated Section 73.1660(a)(2) of
the Rules by operating its station with a non-certified
transmitter.
11. Halifax asserts that the forfeiture should be
reduced because there have been no prior offenses committed
by it and because its President has a ``long-time'' record
of compliance with the Rules. Halifax does appear to have a
past, albeit short, history of compliance. However, after
considering Halifax's blatant disregard for the Commission's
power limits, we conclude that a reduction of the forfeiture
amount based on a history of compliance with the Rules is
inappropriate.19
12. Halifax also requests a reduction of the
forfeiture based on its inability to pay. We have reviewed
the financial information provided by Halifax and find that
a reduction of the forfeiture to $10,000 on the basis of
inability to pay is appropriate.20 In so reducing the
proposed forfeiture, however, we caution Halifax that
further violations may result in additional enforcement
measures, including revocation of its license.
13. We have examined Halifax's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement. As a result of our
review, we conclude that Halifax willfully and repeatedly
violated Sections 11.35, 73.840, 73.845, and 73.1660(a)(2)
of the Rules. Although cancellation of the proposed monetary
forfeiture is not warranted, reduction of the forfeiture
amount to $10,000 is appropriate based on Halifax's
demonstrated inability to pay.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules,21 Halifax Christian Community Church,
Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
ten thousand dollars ($10,000) for willfully and repeatedly
violating Sections 11.35, 73.840, 73.845, and 73.1660(a)(2)
of the Rules by failing to install and maintain operational
Emergency Alert System equipment and operating overpower
with a non-certified transmitter from an unauthorized
location.
15. 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.22 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. The payment should note
NAL/Acct. No. 200532700003, and FRN 0006871339. 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. 20554.23
16. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Ronald L. Kocher, President, 45 Pine
Hill Lane, Palm Coast, Florida 32164.
FEDERAL COMMUNICATIONS
COMMISSION
George R. Dillon
Assistant Chief, Enforcement
Bureau
_________________________
147 C.F.R. §§ 11.35(a), 73.840, 73.845, 73.1660(a)(2).
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532700003 (Enf. Bur., Tampa Office, December 6, 2004)
(``NAL'').
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
547 U.S.C. § 503(b)(2)(D).
647 C.F.R. § 11.35(a).
747 C.F.R. § 11.35(b).
8Id.
947 C.F.R. § 11.35(c).
1047 C.F.R. § 73.3549.
11Section 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).
12As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one
day. The Conference Report for Section 312(f)(2)
indicates that Congress intended to apply this definition
to Section 503 of the Act as well as Section 312. See H.R.
Rep. 97th Cong. 2d Sess. 51 (1982). See Southern
California Broadcasting Company, 6 FCC Rcd 4387, 4388
(1991) and Western Wireless Corporation, 18 FCC Rcd 10319
at fn. 56 (2003).
13Halifax did not provide any evidence of mailing or
receipt of the extension request, such as a confirmation or
tracking number or signed return receipt. The Audio
Division of the Media Bureau has no record of Halifax's
extension request.
1447 C.F.R. § 73.840.
1547 C.F.R. § 73.845.
16 47 C.F.R. § 73.1660(a)(2)
17Halifax's LPFM transmitter consisted of an exciter and an
amplifier. Although Halifax correctly notes that its
amplifier did have an FCC Identifier, according to the
Commission's equipment authorization database, the
manufacturer requested authorization for the amplifier
under the notification process. Thus, contrary to
Halifax's assertions, the amplifier was not certified, as
required by the LPFM Rules. See 47 C.F.R. § 73.1660.
18See AT&T Wireless Services, Inc., 17 FCC Rcd 21861,
21864-75 (2002); Sonderling Broadcasting Corp., 69 FCC 2d
289, 291 (1978); Odino Joseph, 18 FCC Rcd 16522, 16524,
para. 8 (Enf. Bur. 2003); South Central Communications
Corp., 18 FCC Rcd 700, 702-03, para. 9 (Enf. Bur. 2003);
Northeast Utilities, 17 FCC Rcd 4115, 4117, para. 13 (Enf.
Bur. 2002).
19See All American Telephone, Inc., 16 FCC Rcd 16601
(2001).
20The Commission has determined that, in general, a
licensee's gross revenues are the best indicator of its
ability to pay a forfeiture. PJB Communications of
Virginia, Inc., 7 FCC Rcd 2088 (1992) (forfeiture not
deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long
Distance, Inc., 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9
percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002)
(forfeiture not deemed excessive where it represented
approximately 7.6 percent of the violator's gross
revenues). In this case, the reduced forfeiture represents
a smaller percentage than those issued in the Local Long
Distance, Inc. and Hoosier Broadcasting Corp., cases, and a
higher percentage compared to the forfeiture issued in PJB
Communications of Virginia, Inc.
2147 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
2247 U.S.C. § 504(a).
23See 47 C.F.R. § 1.1914.