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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Frank Rackley, Jr. File Number EB-07-OR-141
)
Licensee of Station WNBN-AM NAL/Acct. No. 200832620003
)
Meridian, MS FRN 0010301059
)
Facility ID # 22294
)
)
FORFEITURE ORDER
Adopted: April 24, 2008 Released: April 28, 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 one thousand five hundred dollars ($1,500) to Frank
Rackley, Jr., licensee of station WNBN-AM, in Meridian, Mississippi,
for willful and repeated violation of Sections 73.1350(a) and
73.1745(a) of the Commission's Rules ("Rules"). The noted violations
involve Mr. Rackley's operation of the station from an unauthorized
location and operation at a power level in excess of that authorized
by the license.
II. BACKGROUND
2. On December 7, 2007, the Commission's New Orleans Office of the
Enforcement Bureau ("New Orleans Office") received a complaint
concerning station WNBN-AM. The complaint, among other things, alleged
that station WNBN-AM was operating over power at night.
3. On January 14, 2008, an agent from the New Orleans Office monitored
station WNBN-AM's signal from 4:45 PM-CST until 6:00 PM-CST and did
not observe any change in transmitter power. Station WNBN-AM's station
authorization requires it to reduce power from 2.5kW to 330 watts at
local sunset time. During the month of January, local sunset time was
5:15 PM-CST.
4. On January 15, 2008, an agent from the New Orleans Office again
monitored station WNBN-AM's signal from 4:45 PM-CST until 8:45 PM-CST
and did not observe any change in transmitter power.
5. On January 16, 2008, agents from the New Orleans Office determined the
station was broadcasting from coordinates N32DEG 22' 54" x W088DEG 40'
12". The station is licensed to broadcast from coordinates N32DEG 21'
42" x W088DEG 37' 26".
6. On January 16, 2008, agents from the New Orleans Office, accompanied
by Mr. Rackley, inspected the main studio of station WNBN-AM. Mr.
Rackley stated the station operated at its full power of 2.5kW until
it was manually signed off the air at 9:00 PM-CST. Mr. Rackley also
stated that the station had transmitted from its present location for
years. Mr. Rackley was familiar with the coordinates listed on his
license and stated that he had originally planned to place the
transmitter there but that the deal for that location fell through.
7. On February 22, 2008, the New Orleans Office issued a Notice of
Apparent Liability for Forfeiture to Mr. Rackley in the amount of
eight thousand dollars ($8,000), for the apparent willful and repeated
violation of Sections 73.1350(a) and 73.1745(a) of the Rules. Mr.
Rackley submitted a response to the NAL requesting a reduction of the
proposed forfeiture.
III. DISCUSSION
8. 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 Mr. Rackley'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.
9. Section 73.1350(a) of the Rules states each licensee is responsible
for maintaining and operating its broadcast station in a manner which
complies with the technical rules set forth elsewhere in this part and
in accordance with the terms of the station authorization. On January
16, 2008, agents from the New Orleans Office determined station
WNBN-AM was broadcasting from coordinates N32DEG 22' 54" x W088DEG 40'
12". The station is licensed to broadcast from coordinates N32DEG 21'
42" x W088DEG 37' 26". The licensee admitted transmitting from its
current location for years.
10. 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. Station WNBN-AM is authorized to operate at 2.5kW during the
day and is required to reduce power to 330 watts at local sunset time.
On January 14 and 15, 2008, an agent from the New Orleans Office did
not observe a reduction in power at local sunset time. During the
inspection of January 16, 2008, the licensee of WNBN-AM confirmed the
station did not reduce power at local sunset time but, rather,
operated at full power of 2.5kW until it was manually signed off the
air at 9:00 PM-CST.
11. Mr. Rackley's response to the NAL does not dispute either of the
violations and asserts the violations have been corrected. Based on
the evidence before us, we find that Mr. Rackley willfully and
repeatedly violated Sections 73.1350(a) and 73.1745(a) of the Rules by
failing to broadcast from his authorized location and operating at a
power level in excess of that authorized by his license.
12. Finally, Mr. Rackley states that payment of the forfeiture would pose
an undue financial hardship. The Commission has determined that, in
general, an entity's gross revenues are the best indicator of its
ability to pay a forfeiture. After examining the financial
documentation submitted by Mr. Rackley, we agree and reduce the
forfeiture to $1,500 based on his demonstrated inability to pay.
13. We have examined Mr. Rackley'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 $1,500 is warranted, based on 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, Frank Rackley, Jr. IS LIABLE FOR
A MONETARY FORFEITURE in the amount of one thousand five hundred
dollars ($1,500) for violation of Sections 73.1350(a) and 73.1745(a)
of the Rules.
15. 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[s] 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.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Frank Rackley,
Jr. at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.1350(a), 73.1745(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832620003
(Enf. Bur., New Orleans Office, February 22, 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: 73.1350(a).
47 C.F.R. S: 73.1745(a).
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 PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (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).
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4),
73.1350(a), 73.1745(a).
Federal Communications Commission DA 08-961
2
Federal Communications Commission DA 08-961