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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
EB-06-NF-016
HRN Broadcasting, Inc )
NAL/Acct. No.
Licensee of Station WZGM ) 200732640003
Black Mountain, NC ) FRN 0010020162
Facility ID # 40654 )
)
FORFEITURE ORDER
Adopted: May 2, 2007 Released: May 4, 2007
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eleven thousand two hundred dollars ($11,200) to HRN
Broadcasting, Inc. ("HRN"), licensee of AM broadcast station WZGM in Black
Mountain, North Carolina, for willful and repeated violation of Sections
73.1745(a) and 73.3526 of the Commission's Rules ("Rules"). The noted
violations involve HRN's operation with power other than as specified and
made a part of its license and failure to make available a public
inspection file.
II. BACKGROUND
2. In response to a complaint that HRN was not reducing its transmitting
power during nighttime hours, on February 27 and 28, 2006, an agent of
the Commission's Norfolk Office of the Enforcement Bureau ("Norfolk
Office") made on-scene signal strength measurements of station WZGM's
transmissions in Asheville, North Carolina. The measurements made
during the daytime did not change from the measurements made after
sunset, so HRN failed to reduce transmitter output power after sunset
on both days. On March 1, 2006, the agent made signal strength
measurements in the same locations as those made on February 27 and
28, 2006. Immediately thereafter the agent, and the manager of station
WZGM, went to the transmitter site and, using the "direct method" of
calculating transmitter output power, determined that WZGM was
transmitting with 8450 watts. By comparing the measured field
strengths with the calculated transmitter output power, the agent
demonstrated that HRN transmitted with over 8000 watts of power after
sunset on February 27 and 28, 2006.
3. In addition, on March 1, 2006, during normal business hours, the agent
visited station WZGM's main studio location in Ashville, North
Carolina and requested to inspect the station's public inspection
file. The station was unable to produce a public inspection file or
any of the file's contents. Station WZGM's manager admitted that the
public inspection file was not at the station's main studio in
Asheville, North Carolina, but was retained at HRN's home office in
Lincolnton, North Carolina.
4. On March 15, 2007, the Norfolk Office issued a Notice of Apparent
Liability for Forfeiture to HRN in the amount of fourteen thousand
dollars ($14,000), for the apparent willful and repeated violation of
Sections 73.1745(a) and 73.3526 of the Rules. HRN submitted a response
to the NAL requesting rescission or reduction of the proposed
forfeiture.
III. DISCUSSION
5. The proposed forfeiture amounts in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934, as
amended ("Act"), Section 1.80 of the Rules, 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 HRN'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. Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times or with modes or power, other than those specified
and made a part of the license, unless otherwise provided in this
part. HRN's station license authorizes operation with 10,000 watts
daytime, 77 to 42 watts, from 6:15 p.m. (sunset) to 8:15 p.m. post
sunset (PSSA nighttime) and 56 watts nighttime, powers. On February 27
and 28, 2006, station WZGM operated after sunset with over 8000 watts
of power. In its response, HRN asserts the violation was not willful
because it was due to an equipment malfunction, which was repaired
before the agent left the transmitter site. It is unnecessary for us
to conclude that its violation was willful because its violation was
repeated. Nevertheless, we also conclude that the violation was
willful, because HRN consciously operated its transmitter after
sunset. Although HRN's equipment malfunctioned, there was no evidence
at the station that the staff or the chief operator periodically
inspected the transmission system or kept a record of malfunctions.
Indeed, the station manager stated that the station had no established
procedures or schedules for monitoring or calibrating the transmission
control system. Therefore, even though HRN may have been unaware that
it was operating overpower after sunset, its ignorance is attributable
to its failure to conduct periodic complete inspections of the
transmitting system and all required monitors to ensure proper station
operation.
7. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection, a file containing materials listed in
that section. Section 73.3526(b) of the Rules states that the public
inspection file shall be maintained at the main studio of the station.
Section 73.3526(c)(1) of the Rules requires that the file shall be
available for public inspection at any time during regular business
hours. During normal business hours on March 1, 2006, in response to a
request to inspect the station's public inspection file, station WZGM
was unable to make available a public inspection file or any of the
required contents of the file. There was no evidence that the station
had ever maintained a public inspection file at the main studio. The
station manager admitted that the public inspection file had always
been kept at HRN's home office in Lincolnton, North Carolina, 73 miles
from the community of license.
8. In its response to the NAL, HRN does not deny that the violations
occurred. Rather, it requests that the forfeitures be rescinded,
because it asserts that it promptly corrected the violations. HRN
states that the equipment malfunction, which caused the station to
operate overpower after sunset, was diagnosed and corrected on the
same day as the inspection. HRN also states that within a matter of
days after the inspection, the public inspection file was relocated to
the main studio. However, HRN's corrective action taken to come into
compliance with the Rules is expected, and does not nullify or
mitigate any prior forfeitures or violations.
9. Based on the information before us, we find that HRN willfully and
repeatedly violated Sections 73.1745(a) and 73.3526 of the Rules by
operating after sunset with more power than authorized and failing to
make available a public inspection file at the main studio location.
10. HRN also requests a reduction of the forfeiture based on its history
of compliance with the Rules. We have reviewed HRN's record and
conclude a reduction of the forfeiture to $11,200 based on history of
compliance is appropriate.
11. We have examined HRN'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 HRN willfully
and repeatedly violated Sections 73.1745(a) and 73.3526 of the Rules
and that a reduction of the proposed forfeiture to $11,200 is
warranted based on HRN's history of compliance with the Rules.
IV. ORDERING CLAUSES
12. 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, HRN Broadcasting, Inc. IS LIABLE
FOR A MONETARY FORFEITURE in the amount of eleven thousand two hundred
dollars ($11,200) for violations of Sections 73.1745(a) and 73.3526 of
the Rules.
13. 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. 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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to HRN Broadcasting,
Inc. at its address of record and to its counsel, Mark Prak, Brooks,
Pierce, McLendon, Humphrey & Leonard, LLP, PO Box 1800, Raleigh, NC
27602.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. SS 73.1745(a), 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732640003
(Enf. Bur., Norfolk Office, March 15, 2007) ("NAL").
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(E).
47 C.F.R. S 73.1745(a).
According to the agent's notes of the inspection, the problem with the
transmitter was diagnosed, but not corrected, before he left the
transmitter site.
See 47 C.F.R. S 73.1580.
47 C.F.R. S 73.3526(a)(2).
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(c)(1).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
The term "repeated," when used with reference to the commission or
omission of any act, "means the commission or omission of such act more
than once or, if such commission or omission is continuous, for more than
one day." 47 U.S.C. S 312(f)(2).
47 U.S.C. SS 301, 503(b); 47 C.F.R. SSS 0.111, 0.311, 1.80(f)(4),
73.1745(a), 73.3526.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-1977
2
Federal Communications Commission DA 07-1977