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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
)
Blountstown Communications, Inc. ) File No.: EB-03-TP-192
Licensee of Radio Stations WYBT (AM) & ) NAL/Acct. No. 200432700006
WPHK (FM) ) FRN 0000040428
Blountstown, Florida )
MEMORANDUM OPINION AND ORDER
Adopted: January 25, 2007 Released: January 29, 2007
By the Assistant 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 Blountstown
Communications, Inc. ("Blountstown"), licensee of Stations WYBT (AM)
and WPHK (FM), Blountstown, Florida. Blountstown seeks reconsideration
of the Forfeiture Order in which the Enforcement Bureau ("Bureau")
found it liable for a monetary forfeiture in the amount of twenty-five
thousand dollars ($25,000), for willful violations of Sections 11.35,
73.49, and 73.3526(c) of the Commission's Rules ("Rules"). The noted
violations involve Blountstown's failure to ensure operational
Emergency Alert System ("EAS") equipment, failure to enclose the AM
station's antenna tower within an effective locked fence, and failure
to make available a complete public file. For the reasons discussed
below, we reduce the forfeiture amount from $25,000 to $12,480.
II. BACKGROUND
2. On April 7, 2003, agents from the Commission's Enforcement Bureau's
Tampa, Florida Field Office ("Tampa Office") inspected station WYBT
(AM) and WPHK (FM) in Blountstown, Florida. The agents found the
stations' EAS equipment inoperative, the AM antenna system's high RF
potential exposed and accessible, and a public file which consisted
only of a Commission station license and tower registration. On
December 16, 2003, the District Director of the Tampa Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$25,000 to Blountstown. Blountstown did not file a response to the
NAL. On April 16, 2004, the Bureau issued the Forfeiture Order, which
imposed a monetary forfeiture in the amount of $25,000. Blountstown
subsequently filed a petition for reconsideration ("petition") of the
Forfeiture Order on May 17, 2004, requesting cancellation or reduction
of the forfeiture. Specifically, the petition requests: (1)
cancellation of the Section 11.35 violation based on proffered
evidence that Blountstown acted in compliance with Section 11.35(b) in
an effort to maintain operational EAS equipment; (2) cancellation of
the Section 73.3526(c) violation based on the existence of a public
file and misunderstanding surrounding its production at the time of
the inspection; (3) cancellation or reduction of the Section 73.49
violation based on environmental circumstances and remediation
efforts; and (4) cancellation or reduction of the monetary forfeiture
based on Blountstown's inability to pay and its record of compliance.
In support of these contentions, Blountstown submitted affidavits,
relevant broadcast station daily log sheets, as well as its Federal
tax returns for the relevant three year period.
3. The forfeiture amount 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. In examining Blountstown's petition,
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 such other matters as
justice may require.
III. DISCUSSION
A. Violation of Section 11.35(a) of the Rules
1. Background
4. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders, and attention signal
generating and receiving equipment used as part of the EAS are
installed and operational so that the monitoring and transmitting
functions are available during the times the station is in operation.
2. Discussion
5. Blountstown admits that stations WYBT and WPHK did not have fully
operational EAS equipment during the inspection; that is, Blountstown
could generate EAS reports, but the stations could not receive EAS
alerts from the stations Blountstown was required to monitor.
Blountstown, however, contends that there is no basis for violation,
and the forfeiture amount for this violation should be cancelled
because Blountstown was in full compliance with Section 11.35(b) of
the Rules, which permits operation without the EAS equipment for a 60
day period if the EAS equipment becomes defective. Section 11.35(b)
specifically allows a broadcast station to continue operation without
EAS equipment when: the presently installed EAS equipment becomes
defective and that fact is noted on the broadcast station log, repairs
or replacements are made within 60 days, and the broadcast station log
documents the date and time the repairs were completed. In an
affidavit by the Station Principal and General Manager, Mr. Harry
Hagan, Blountstown affirmed that the EAS equipment failed on March 5,
2003, at which point it logged the incident in the broadcast station
log and began corrective action. The EAS equipment was again fully
operational on April 10, 2003, within the 60 day period permitted
under Section 11.35(b). Blountstown supports these assertions with
copies of the relevant station daily log sheets for the stations that
document the actions Blountstown took to maintain and correct the EAS
system. We note that Blountstown's petition for reconsideration does
not address the observations made by the agents during the inspection
that Blountstown had not logged the EAS equipment failure, and
subsequent repair, in the stations' EAS logs. However, we find that
the documentation provided by Blountstown regarding the failure of the
EAS system and its repair within the specified time period
demonstrates compliance by Blountstown with Section 11.35(b). Based on
the evidence submitted, we therefore cancel the eight thousand dollar
($8,000) forfeiture for the violation of Section 11.35(a) of the
Rules.
A. Violation of Section 73.3526(c)
1. Background
6. Section 73.3526(c) of the Rules requires that every permittee or
licensee of an AM, FM, TV or Class A TV station in the commercial
broadcast services shall maintain a public inspection file, which
shall be available for public inspection at any time during business
hours. The Commission has found that reasonable access to the public
inspection file serves the important purpose of facilitating citizen
monitoring of a station's operations and public interest performance,
and fostering community involvement with local stations, thus helping
to ensure that stations are responsive to the needs and interests of
their local communities.
2. Discussion
7. Blountstown contends that it maintains a public file for both
stations, that the file existed at the time of the inspection, and
Blountstown's failure to produce the file was a result of a
misunderstanding between the manager and the Commission agents.
Blountstown provided affidavits by the staff person present at the
time of the investigation, Cathy Hagan, as well as the Station
Principal, Harry Hagan, attesting to the fact that the public file was
not produced because the Commission agents withdrew the request to
view the file. Blountstown cites Radio One Licenses, Inc. ("Radio
One"), wherein the Commission canceled the forfeiture for a public
inspection file violation based on additional findings that the public
inspection file existed at the time of the inspection, despite the
station's failure to provide the file upon two requests by the
Inspecting Agent.
8. The rule cited in Radio One, Section 73.3526(a)(2), however, is a
different rule than the one cited in the instant case; Section
73.3526(a)(2) requires that the public file exist and be maintained,
which Radio One eventually proved. As explained above, Section
73.3526(c) requires that the public file be accessible. Ms. Hagan, the
one who dealt with the agent's request to see the file, admits in her
affidavit that the file was not immediately available; she did not
know its exact whereabouts. Further, she claims that the agent
withdrew his request for the file; the agent, however, disputes that
statement. In Commission cases that have involved this Section, the
Commission has found a violation under similar circumstances where the
entire file was not made available at the time of the inspection.
Thus, based on the evidence, we find that Blountstown willfully
violated Section 73.3526(c) of the Rules by failing to make available
a complete public inspection file. Blountstown's request to cancel or
reduce the forfeiture amount of ten thousand dollars ($10,000.00) is
thereby denied.
A. Violation of Section 73.49
1. Background
9. Section 73.49 of the Rules requires AM station towers with radio
frequency potential at the base to be enclosed with effective locked
fences or other enclosures. The Enforcement Bureau has imposed
forfeitures for violation of this rule in numerous cases because of
the safety concerns to the public that fencing violations represent.
2. Discussion
10. In addition to the antenna tuner and feedline being exposed, the FCC
investigation established that neither the property nor the base of
the AM station tower was enclosed, as required by Section 73.49.
Blountstown argues that the surrounding area is swamp; therefore, it
is not conducive to fencing and requires the talents of an expert
installer. Because Blountstown was in the process of employing an
expert installer prior to the investigation and installation of the
fence occurred immediately after the investigation, Blountstown
contends that these pre-inspection attempts constitute a voluntary
corrective effort and requests cancellation of this violation based on
the decision in East Tennessee Radio Group. In addition, Blountstown
claims that the environmental conditions themselves served as a
natural deterrent to inadvertent interference with the equipment.
11. This case is factually distinguishable from East Tennessee, as East
Tennessee concerned the investigation of a Section 17.57 violation,
involving a failure to notify the Commission of a change in antenna
ownership. The activity in East Tennessee involved a replacement item
while Blountstown involves the initial construction of a required
item. Due to repeated acts of vandalism, East Tennessee was forced to
repeatedly replace its sign identifying the ownership of the antenna
structure. Prior to the Commission investigation, the engineer knew
the sign had been removed for the third time and had already ordered a
replacement. In contrast, Blountstown's facility was completed in
April 2002 and did not have appropriate fencing more than a year
later. However, according to the affidavit of Mr. Hagan, between the
time the facility was completed and the Commission inspection, he made
a number of attempts to have the fence installed, which we will
consider as good faith efforts. As for the marshy terrain, the
surrounding environment is not a mitigating factor in determining
compliance with the Rule. As the Commission has stated, "[n]either the
Rules nor case law permit[s] `natural barriers' to meet the
requirements of Section 73.49 of the Rules." Therefore, due to
Blountstown's good faith efforts to find a contractor to build the
fence, the forfeiture of $7,000 is reduced to $5,600.
A. Inability to Pay and History of Compliance
1. Background
12. Under the Forfeiture Policy Statement and Section 1.80(b)(4) of the
Rules, inability to pay is a downward adjustment factor for Section
503 forfeitures. In analyzing economic-hardship claims, the Commission
generally looks to a company's gross revenues from the three most
recent tax years as a reasonable and appropriate yardstick to
determine its ability to pay an assessed forfeiture. Indeed, the
Commission has stated that if a company's gross revenues are
sufficiently large, the fact that net losses are reported, alone, does
not necessarily signify an inability to pay. Forfeitures have also
been downwardly adjusted in cases where Commission licensees claim,
and agency records confirm, a history of overall compliance with the
Act and the Rules.
2. Discussion
13. Blountstown contends that it is unable to pay the monetary forfeiture
as exhibited by its Federal tax returns. We have reviewed the
financial information Blountstown provided, and we find in light of
the reduction discussed herein this information does not provide a
basis for further reduction of the forfeiture.
14. Finally, Bountstown asserts that the instant forfeiture amount should
be reduced because of Blountstown's history of overall compliance. We
agree that a reduction of the forfeiture amount is warranted, based
upon our review of the record and finding that Blountstown has a
history of overall compliance with the Rules. Accordingly, we further
reduce the forfeiture amount from $15,600 to $12,480 pursuant to
Section 1.80(b)(4) of the Rules.
15. We have examined Blountstown's Petition for Reconsideration pursuant
to the statutory factors above, and in conjunction with the Forfeiture
Policy Statement. As a result of our review, we conclude that
Blountstown willfully violated Sections 73.49 and 73.3526(c) of the
Rules and find that, although cancellation of the monetary forfeiture
is not warranted, reduction of the forfeiture amount to $12,480 is
appropriate.
IV ORDERING CLAUSES
16. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 405 of the Act
and Section 1.106 of the Rules, Blountstown's petition for
reconsideration of the April 16, 2004, Forfeiture Order IS GRANTED IN
PART to the extent indicated AND DENIED IN ALL OTHER PARTS as
specified herein.
17. IT IS FURTHER ORDERED THAT Blountstown Communications, Inc. is LIABLE
FOR A MONETARY FORFEITURE in the amount of twelve thousand, four
hundred eighty dollars ($12,480) for willful and repeated violation of
Section Sections 73.49 and 73.3526(c) of the Rules.
18. 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, SW, Room
1A625, Washington, D.C. 20554.
19. IT IS FURTHER ORDERED THAT a copy of this Order shall be sent by first
class mail and certified mail, return receipt requested, to
Blountstown Communications, Inc., 20872 N.E. Kelly Avenue,
Blountstown, Florida 32424, to 612 North Jefferson Street, Perry,
Florida 32347, and to John S. Neely, Miller and Neely, P.C., 6900
Wisconsin Ave., Suite 704, Bethesda, MD 20815.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
Blountstown Communications, Inc., 19 FCC Rcd 6894 (Enf. Bur. 2004).
47 C.F.R. SS 11.35, 73.49 and 73.3526(c).
During the inspection, the agents observed that the last evidence of EAS
operation in the stations' EAS logs was dated April 1999. Further, the EAS
logs did not reflect that the equipment had been removed from service for
repair.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200432700006
(Enf. Bur., Tampa Office, rel. December 16, 2003).
47 U.S.C. S 503.
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 11.35(b) ("If the EAS Encoder or EAS Decoder becomes
defective, the broadcast station . . . may operate without the defective
equipment pending its repair or replacement for 60 days without further
FCC authority.").
See Affidavit of Harry Hagan, Blountstown Station Principal and General
Manager, May 17, 2004.
Attached to Mr. Hagan's affidavit are three log sheets: one dated March 5,
2003 (the day the equipment failed), a second one dated April 7, 2003 (the
day of the inspection) and a third one dated April 10, 2003, which
demonstrated that the EAS receiver was repaired.
See American Family Association, Inc., 18 FCC Rcd 16530 (Enf. Bur. 2003)
(canceling the EAS violation based on a finding that a defective EAS
system that is repaired within the statutory period permitted under
Section 11.35(b) does not violate Section 11.35(a) when supported by logs
of the incident). Although Blountstown does not provide the quantity of
documents provided by American Family Association --namely, an entire
year's worth of log sheets--the quality and significance of the log sheets
submitted coupled with the affidavit provided are sufficient to support
cancellation of the forfeiture amount for the EAS violation. See Tidewater
Communications, 18 FCC Rcd 5524 (Enf. Bur. 2003) (NAL canceled where
affidavit and supporting documentation demonstrated compliance with rule).
Review of the Commission's Rules regarding the Main Studio Rule and Local
Public Inspection Files of Broadcast Television and Radio Stations, 13 FCC
Rcd 15691, 15700 (1998). See also Union Broadcasting, Inc., 19 FCC Rcd
18588, 18590 (Enf. Bur. 2004).
Radio One Licenses, Inc., 16 FCC Rcd 15326 (Enf. Bur. 2000);
reconsideration granted in part, 17 FCC Rcd 20408, 20409 (Enf. Bur.
2002). Subsequent Commission decisions denied two Radio One
reconsiderations on other grounds, 18 FCC Rcd 15964 (2003), 18 FCC Rcd
25481 (2003). Blountstown cited the case, Licensee of Station WBOT (FM),
but the actual cite is Radio One, as given above.
47 C.F.R. S 73.3526(a)(2)
See Jesse C. and Ernestine A. Ross, 19 FCC Rcd. 20823 (Enf. Bur. 2004),
aff'd on other grounds, 21 FCC Rcd. 7913 (Enf. Bur. 2006); Victory & Power
Ministries, Inc., 19 FCC Rcd. 19761 (Enf. Bur. 2004); EICB-TV, LLC., 19
FCC Rcd. 18611 (Enf. Bur. 2004); Marion R. Williams, 19 FCC Rcd. 15324
(Enf. Bur. 2004); and Willis Broadcasting Corp, 17 FCC Rcd. 7053 (Enf.
Bur. 2002).
See, e.g., East Texas Broadcasting Company, Inc., 19 FCC Rcd 22491 (Enf.
Bur. 2004) and Buchanan Broadcasting Company, Inc. 15 FCC Rcd 24363
(2000).
18 FCC Rcd 27084 (Enf. Bur. 2003).
See Big Island Radio, 19 FCC 20819 (Enf. Bur. 2004); Southern Media
Communications, Inc., 19 FCC 18146 (Enf. Bur. 2004) (forfeiture amounts
reduced where licensees were able to demonstrate by affidavits that they
had taken steps towards correcting the noted problems before the
Commission inspection).
Pittman Broadcasting Services, LLC, 19 FCC Rcd 15320, 15322 (Enf. Bur.
2004) (determining that marshy conditions or other "natural barriers" are
not sufficient to constitute compliance with Section 73.49). See
Forrester, et al., 19 FCC Rcd 11030 (Enf. Bur. 2004) (finding that failure
to demonstrate the existence of a locked fence or other enclosure cannot
be mitigated by natural environmental deterrents).
See Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. S
1.80(b)(4), Note to paragraph (b)(4): Section II. Adjustment Criteria for
Section 503 Forfeitures.
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992); see
also Forfeiture Policy Statement, 12 FCC Rcd at 17106-07, P 43.
See, e.g., Local Long Distance, Inc., 15 FCC Rcd 24385 (2000), recon.
denied, 16 FCC Rcd 10023, 10025 (2001); Independent Communications, Inc.,
14 FCC Rcd 9605 (1999), recon. denied, 15 FCC Rcd 16060, 16060 (2000);
Hoosier Broadcasting Corp.. 14 FCC Rcd 3356 (CIB 1999), recon. denied, 15
FCC Rcd 8640, 8641 (Enf. Bur. 2000).
47 C.F.R. S 1.80(b)(4) ("Section II. Adjustment Criteria for Section 503
Forfeitures, Downward Adjustment Criteria").
See PJB Communications of Virginia, Inc., supra n. 20 (forfeiture not
deemed excessive where it represented approximately 2.02 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Inc., id. at
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
In this case, the forfeiture represents a smaller percentage than that
issued in Hoosier Broadcasting Corp., but a higher percentage compared to
the forfeiture issued in PJB Communications of Virginia, Inc.
See Mr. Hagan's affidavit at p. 2, and Blountstown's petition at p. 4.
See Max Media of Montana, L.L.C., 18 FCC Rcd 21375, 21379 (Enf. Bur. 2003)
(further reducing the proposed forfeiture from $11,000 to $8,800 for
antenna structure lighting and registration violations due to the
licensee's history of overall compliance); South Central Communications
Corp., 18 FCC Rcd 700, 702 (Enf. Bur. 2003) (reducing the proposed
forfeiture from $10,000 to $8,000 for antenna structure lighting
violations due to the licensee's history of overall compliance).
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-230
7
Federal Communications Commission DA 07-230