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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Black Crow Radio, LLC
) File Number: EB-07-TP-247
Licensee of AM Broadcast Station
WNDB ) NAL/Acct. No.: 200832700018
Daytona Beach, FL ) FRN: 0005816590
Facility ID 10342 )
)
FORFEITURE ORDER
Adopted: November 13, 2008 Released: November 17, 2008
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 six thousand four hundred dollars ($6,400) to Black Crow
Radio, LLC, ("Black Crow"), licensee of AM Broadcast Station WNDB, in
Daytona Beach, Florida, for willful and repeated violation of Sections
73.44(b) and 73.49 of the Commission's Rules ("Rules"). The noted
violations involve Black Crow's failure to ensure that emissions
removed by 60 kHz to 75 kHz from the WNDB fundamental frequency of
1150 kHz are attenuated 65 dB below the unmodulated carrier level and
failure to maintain effective locked fences around the bases of two
antenna towers.
II. BACKGROUND
2. On February 26, 2008, in response to a complaint that AM station WNDB
was causing interference to stations on 1070 KHz and 1230 KHz and
general interference up and down the AM band, agents from the
Commission's Tampa Office of the Enforcement Bureau ("Tampa Office")
monitored station WNDB on its licensed frequency of 1150 KHz with a
standard car radio and readily observed that the station could be
heard up and down the AM band. The agents also heard station WNDB
intermittently on stations 1070 KHz and 1230 KHz. The agents measured
the spurious emissions with a calibrated spectrum analyzer and loop
antenna and determined that WNDB was attenuated 33 dB at +/- 60 KHz
referenced to the WNDB carrier on 1150 kHz.
3. Still on February 26, 2008, agents from the Tampa Office inspected the
main studio of station WNDB. The agents informed the station of the
harmful interference they were causing and advised that they would
need to correct the problem or shut down within three hours. The
inspection continued at the transmitter site where the agents observed
that the station's two AM antenna series fed towers were not enclosed
within effective locked fences. One tower fence did not have a locking
mechanism, and the other tower fence had a broken locking mechanism.
The property's perimeter fence gate was open and lying down beside the
driveway. The station's chief engineer stated the perimeter fence gate
had been pushed down for about two weeks. The station's chief engineer
also stated that the station would fix the two base fences right away.
Because the station's chief engineer turned the station transmitter
off and on and made some other adjustments during the inspection, the
agents took another brief measurement after the inspection. The agents
informed the chief engineer that the spurious emission problem
remained and reminded him that the problem had to be fixed within 3
hours or the station would have to cease transmitting.
4. On February 28, 2008, agents from the Tampa Office returned to the
Daytona Beach area and monitored AM Broadcast Station WNDB with a
standard car radio. They again observed that the station could be
heard up and down the AM band, but to a lesser degree than before. The
agents also heard station WNDB intermittently on stations 1070 KHz and
1230 KHz. The agents measured the spurious emissions with a calibrated
spectrum analyzer and loop antenna and determined that WNDB was
attenuated 41 dB at +/- 60 KHz referenced to the WNDB carrier on 1150
kHz. The agents also observed that the fences surrounding the
station's two AM towers were in the same condition as on February 26,
2008. The agents also observed that the perimeter property fence gate
still remained open and lying on the ground.
5. On September 24, 2008, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture to Black Crow in the amount of twenty-three
thousand dollars ($23,000) for the apparent willful and repeated
violation of Sections 11.35(a), 73.44(b), 73.49 and 73.3526 of the
Rules. In response to the NAL, Black Crow admitted that it violated
Sections 11.35(a) and 73.3526 of the Rules and submitted a payment in
the amount of $12,000 for those violations. Black Crow, however,
requested cancellation or reduction of the remaining $11,000 proposed
forfeiture.
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'), 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 Black Crow'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.
7. Section 73.44(a) of the Rules requires that "[t]he emissions of
stations in the AM service shall be attenuated in accordance with the
requirements specified in paragraph (b) of this section." Section
73.44(b) of the Rules requires that "[e]missions removed by 60 to 75
kHz (from the carrier) must be attenuated at least 65 dB below the
unmodulated carrier level." On February 26 and 28, 2008, agents from
the Tampa Office observed emissions removed by 60 kHz to 75 kHz from
WNDB's carrier that were attenuated by only 33 dB and 41 dB,
respectively. On February 26, 2008, agents from the Tampa Office twice
told the station to correct the spurious emissions problem or else
cease broadcasting. Black Crow does not dispute that it was the source
of spurious emissions on February 26 and 28, 2008. Thus, based on the
evidence before us, we find that Black Crow willfully and repeatedly
violated Section 73.44(a) of the Rules by transmitting unauthorized
emissions on February 26, 27, and 28, 2008.
8. Although Black Crow does not dispute the underlying facts of the
violation, it, nevertheless, requests cancellation or reduction of the
proposed forfeiture. Black Crow states that it does not have the
necessary equipment to detect spurious emissions and relies on annual
measurements and inspections by its consulting engineering firm to
ensure compliance with Section 73.44(a) of the Rules. Black Crow
states that the station was last inspected in September 2007 and was
not causing spurious emissions at that time. Black Crow claims that
vandals may have damaged their transmission equipment, thus creating
the spurious emissions problem. Black Crow also claims that it reduced
power on February 27, 2008 and was unaware that the reduction in power
had not solved the spurious emissions problem. Finally, Black Crow
asserts that it contacted the manufacturer of its transmitter on
February 26, 2008, ordered new parts on February 27, 2008, and
repaired the transmitter late on February 28, 2008, after the agents'
second observation.
9. We find that Black Crow has failed to raise any arguments that would
warrant reduction or cancellation of the proposed forfeiture. Black
Crow was required to cease operations on February 26, 2008 and remain
off the air until it corrected the violation. In other words, Black
Crow should not have resumed operations until it could confirm that
the problem had been remedied. Although reducing power was a
reasonable precaution, without taking measurements, Black Crow had no
way of knowing whether it was continuing to emit spurious emissions in
violation of Section 73.44(a) of the Rules and, therefore, should not
have resumed operations. In addition, although Black Crow claims it
did not have the necessary equipment to detect spurious emissions, it
could have monitored the AM band with a normal receiver and determined
that the station still could be heard up and down the band, thus
proving the problem had not been resolved by its reduction in power.
Finally, Black Crow's post-inspection corrective action taken to come
into compliance with the Rules was expected, and does not nullify or
mitigate any prior forfeitures or violations.
10. Section 73.49 of the Rules requires antenna towers having radio
frequency potential at the base (series fed, folded unipole, and
insulated base antennas) to be enclosed within effective locked fences
or other enclosures. Individual tower fences need not be installed if
the towers are contained within a protective property fence. On
February 26 and 28, 2008, agents from the Tampa Office observed that
both AM antenna series fed towers were not enclosed within effective
locked fences and were the type of antennas which have radio frequency
potential at their base. One of the tower fences had no locking
mechanism, and the other had a broken locking mechanism, thus
providing ready access to the base of the towers. In addition, the
property's perimeter fence gate was open and lying on the ground. The
station was aware that the perimeter gate had been broken for about
two weeks prior to the inspection and was reminded of the base fence
problems on February 26, 2008. Black Crow does not dispute any of
these facts. Thus, based on the evidence before us, we find that Black
Crow willfully and repeatedly violated Section 73.49 of the Rules by
failing to enclose its AM towers within effective locked fences or
other enclosures on February 26 and 28, 2008.
11. Although Black Crow does not dispute the facts underlying the
violation, it, nevertheless, requests cancellation or reduction of the
proposed forfeiture. Black Crow asserts its property has been plagued
by vandals and provided one police report filed prior to the
inspection and several reports filed after the inspection as evidence
of the problem. It states that it replaced the fence in November 2007.
It also claims that the fence was vandalized "just prior to the FCC
inspection," it had been evaluating solutions to the vandalism problem
but had not repaired the fence prior to the inspection, it ordered
parts for the fence on February 27, 2008, and it had the fence
repaired by February 29, 2008.
12. We find that Black Crow has failed to provide evidence which would
cause us to reduce or cancel the proposed forfeiture. Although vandals
may have damaged the base or perimeter property fences, according to
the station's chief engineer, the perimeter gate had been broken for
about two weeks prior to the inspection. Given that Black Crow was
able to repair the fence within two days after the inspection, it had
ample time prior to the inspection in which to repair the fence after
it first became aware of the damage. While Black Crow asserts it was
considering more elaborate efforts to address the vandalism problem,
such as motion detecting lights, alarms and fence supports, prior to
the inspection, consideration of these additional measures did not
prevent Black Crow from addressing the immediate needs of the existing
fence. Furthermore, it is well established that post-inspection
corrective action taken to come into compliance with the Rules is
expected, and does not nullify or mitigate any prior forfeitures or
violations. Similarly, although Black Crow replaced the fence in
November 2007, due to damage caused by vandals, such action was
presumably necessary to correct a prior fencing violation and does not
excuse Black Crow from continuing compliance with the Rules.
13. Finally, Black Crow requests a reduction of the proposed forfeiture,
because it claims it has never been charged by the Commission with a
violation since it began operating thirteen years ago. We have
reviewed the record and reduce the forfeiture to $6,400 based on Black
Crow's history of compliance with the Rules.
14. We have examined Black Crow'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 a reduction of
the proposed forfeiture to $6,400 is warranted, based on Black Crow's
history of compliance with the Rules.
III. ORDERING CLAUSES
15. 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, Black Crow Radio, LLC IS LIABLE
FOR A MONETARY FORFEITURE in the amount of six thousand four hundred
dollars ($6,400) for violation of Sections 73.44(a) and 73.49 of the
Rules.
16. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Black Crow will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Black Crow Radio,
LLC at its address of record and to its counsel, David G. O'Neil, Rini
Coran PC, 1615 L Street NW, Suite 1325, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.44(b), 73.49. We also find that Black Crow willfully and
repeatedly violated Sections 11.35(a) and 73.3526 of the Rules. Black Crow
made a payment of $12,000 for these violations, and are not at issue in
this Forfeiture Order.
See 47 C.F.R. S: 73.1350(d) (if not in compliance with the technical rules
or the station authorization, and the condition is not listed in Section
73.1350(e) of the Rules, broadcast operation must be terminated within
three hours).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832700018
(Enf. Bur., Tampa Office, September 24, 2008) ("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: 73.44(a).
47 C.F.R. S: 73.44(b).
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).
As provided by 47 U.S.C. S: 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).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
47 C.F.R. S: 73.49.
See supra note 11.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.44(a),
73.49.
47 U.S.C. S: 504(a).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 08-2503
1
Federal Communications Commission DA 08-2503