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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Opp Educational Broadcasting File No. EB-08-SE-614
Foundation )
NAL/Acct. No. 200932100076
FM Broadcast Station WJIF )
FRN No. 0010252856
Opp, Alabama )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: August 27, 2009 Released: August 31, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find Opp Educational Broadcasting Foundation ("Opp Ed"), licensee
of FM Broadcast Station WJIF ("WJIF") in Opp, Alabama, apparently
liable for a forfeiture in the amount of nineteen thousand dollars
($19,000) for willfully and repeatedly violating Sections 11.35 and
11.61(a) of the Commission's Rules ("Rules") and for willfully and
repeatedly violating Section 73.1015 of the Rules. The noted
violations involve WJIF's failure to maintain operable Emergency Alert
System ("EAS") equipment and failure to conduct required EAS tests and
Opp Ed's failure to respond to directives of the Enforcement Bureau's
Spectrum Enforcement Division ("Division") to provide certain
information and documents. We also order Opp Ed to respond fully to
the Division's Follow-Up Letter of Inquiry ("LOI") within ten (10)
days of release of this NAL. If Opp Ed again fails to submit complete
responses, it will be subject to further enforcement action.
II. BACKGROUND
2. On August 7, 2008, the Division received a complaint alleging that
WJIF did not participate in the EAS and had never transmitted an EAS
test. Part 11 of the Rules includes FM broadcasts stations as EAS
participants and describes the required technical standards and
operational procedures for EAS participation. EAS participants are
required to use a common EAS protocol to send and receive emergency
alerts and to participate in EAS test transmissions. On November 4,
2008, the Division issued a Letter of Inquiry ("LOI") to Opp Ed in
order to assess WJIF's compliance with EAS Rules. The LOI directed Opp
Ed to address the allegations against WJIF by responding to specific
questions and providing specific information and documentation. In
particular, the LOI sought information concerning whether WJIF has
installed EAS equipment and conducts required EAS tests, and if so,
the EAS equipment manufacturer, model and date of installation;
whether WJIF announces EAS tests to its listening audience; and
requested WJIF to identify at least two EAS sources that it monitors.
The LOI also requested a description or copy of the policies and
procedures in place to ensure compliance with the EAS Rules and a copy
of all station logs recording EAS test transmissions and any EAS
equipment outages or repairs as required to be maintained under
Section 73.1820 of the Rules. Opp Ed's response to the LOI was due on
December 4, 2008, 30 calendar days from the date of the LOI, and
covered the period from January 31, 2007 to the date of its response.
3. On December 30, 2008, the Division received Opp Ed's LOI Response,
dated December 18, 2008. In its response to the LOI, Opp Ed failed to
answer any of the inquiries set forth in the LOI, except to state in
general terms that WJIF has "in the past, participated in the national
Emergency Alert System" but "at present the [EAS] equipment is not
operating properly and has to be repaired." Opp Ed also made the broad
assertion that it will take "the necessary steps to correct this
problem as soon as possible." Opp Ed provided no response to specific
inquiries posed by the Division regarding WJIF's EAS equipment, the
date of installment, announcements of EAS tests, EAS sources that it
monitors, and failed to provide a copy of WJIF'S EAS policies and
procedures and all station logs.
4. On March 4, 2009, the Division issued a Follow-Up LOI to Opp Ed,
notifying it that it had not provided all the information required by
the LOI and that the information that it did provide had raised
additional questions. The Follow-Up LOI directed Opp Ed to provide the
requested WJIF EAS station log documentation, to confirm its
compliance with Section 11.35(c) of the Rules, and to address the
status, including dates, of its EAS equipment inoperability, repair or
replacement. The Follow-Up LOI explicitly warned Opp Ed that failure
to respond appropriately to the Follow-Up LOI may result in
enforcement action. The Follow-Up LOI was sent by certified mail
return receipt requested, first class mail, and facsimile to the
Commission address and facsimile number of record used for the
November 4, 2008 LOI. The certified mail return receipt confirms
delivery of the Follow-Up LOI on March 9, 2009. The facsimile
transmittal receipt confirms satisfactory transmission of the
Follow-Up LOI on March 4, 2009. To date, Opp Ed has not responded to
the Follow-Up LOI.
III. DISCUSSION
5. Section 503(b) of the Act, and Section 1.80(a) of the Rules, provides
that any person who willfully or repeatedly fails to comply with the
provisions of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator knew that it was taking the action in
question, irrespective of any intent to violate the Commission's Rules
and "repeated" means more than once.
A. Failure to Comply With EAS Requirements
6. As a Commission licensee, Opp Ed is charged with the responsibility of
knowing and complying with the terms of its authorization and the Act
and the Rules. The EAS system, as the nation's emergency warning
system, is critical to public safety. Section 11.11(a) specifies that
FM broadcast stations are classified as EAS Participants and "[a]t a
minimum ... must use common EAS protocol ... to send and receive
emergency alerts." The Rules also require EAS Participants to conduct
tests at regular intervals in accordance with Section 11.61(a) and the
EAS Operating Handbook. In addition, Section 11.35 of the Rules sets
forth the requirements for EAS Participants to ensure EAS equipment
"operation readiness" and to repair or replace EAS equipment that is
not working. Failing to participate in the EAS compromises the
integrity of the national EAS system.
7. In its LOI Response, which was dated December 18, 2009, Opp Ed states
that WJIF has, in the past, participated in the EAS. Opp Ed admits,
however, that WJIF's EAS equipment was "at present" not operating
properly and was in need of repair. Although Opp Ed states it would be
taking necessary steps to "correct this problem as soon as possible,"
it made no representation as to what steps it would take to ensure
proper working EAS equipment and made no attempt to provide a time
frame as to when repair or replacement of the EAS equipment would be
made. Section 11.35(c) of the Rules requires an EAS participant who
has not repaired or replaced defective equipment after 60 days to
submit an informal request for additional time to repair its defective
equipment to the District Director of the FCC Field Office serving the
participant's area. To date, Opp Ed has not submitted a request or
contacted the Commission's Atlanta, Georgia Field Office to request
additional time to repair WJIF's EAS equipment. We, therefore, find
Opp Ed in apparent willful and repeated violation of Sections 11.35
and 11.61(a) of the Rules for failure to maintain operable EAS
equipment and failure to conduct required EAS tests.
B. Failure to Respond to Commission Inquiry
8. Section 73.1015 of the Rules states that "the Commission or its
representative may, in writing, require from any applicant, permittee,
or licensee written statements of fact relevant to a determination
whether an application should be granted or denied, or to a
determination whether a license should be revoked, or to any other
matter within the jurisdiction of the Commission" and that any such
statements are subject to the provisions of Section 1.17 of the Rules.
Section 1.17 of the Rules requires that any person that receives a
letter of inquiry from the Commission or its staff "shall not
intentionally provide material factual information that is incorrect
or intentionally omit material information that is necessary to
prevent any material factual statement that is made from being
incorrect or misleading."
9. As noted above, the Division twice directed Opp Ed to provide certain
information and documents related to WJIF's participation in the EAS
and the operational status of its EAS equipment. Such information was
necessary to enable the Commission to perform its enforcement function
and evaluate whether WJIF violated Commission rules. There is no
question that Opp Ed received the Division's LOI and Follow-Up LOI.
Opp Ed failed to provide full and complete responses to the inquiries
posed by the LOI, making only a broad assertion that WJIF's EAS
equipment was in need of repair and that it would take necessary steps
to correct the problem as soon as possible. Further, Opp Ed failed to
provide any response to the Division's Follow-Up LOI. We, therefore,
find Opp Ed's failure to respond to the Division's inquiries
constitutes an apparent willful and repeated violation of Section
73.1015 of the Rules.
C. Proposed Forfeiture
10. Section 503(b)(1) of the Act and Section 1.80(a)(1) of the Rules
authorize the Commission to assess forfeiture for each willful or
repeated violation of the Act or of any rule, regulation, or order
issued by the Commission under the Act. In determining the appropriate
forfeiture amount, Section 503(b)(2)(E) of the Act directs us to
consider factors, such as "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."
11. Section 1.80 of the Rules and the Commission's Forfeiture Policy
Statement establish a base forfeiture amount of eight thousand
($8,000) for "EAS equipment not installed or operational." Having
considered the statutory requirements, we propose the base forfeiture
amount of $8,000 for WJIF's failure to have EAS equipment installed
and operational. As the nation's emergency warning system, the EAS
system is critical to public safety. WJIF's failure to have EAS
equipment installed or operational compromises the integrity of the
EAS system. Accordingly, we conclude that Opp Ed is apparently liable
for an $8,000 forfeiture for WJIF's willful and repeated violation of
Sections 11.35 and 11.61(a) of the Rules for failure to maintain
operable EAS equipment and failure to conduct required EAS tests.
12. Section 1.80 of the Rules and the Commission's Forfeiture Policy
Statement establish a base forfeiture amount of $4,000 for failure to
respond to Commission communications. We find that Opp Ed's failure to
respond to the Division's LOI and Follow-Up LOI in the circumstances
presented here warrants an increase to the base forfeiture amount.
Misconduct of this type exhibits contempt for the Commission's
authority and threatens to compromise the agency's ability to
adequately investigate violations of its Rules. Prompt and full
responses to Division inquiry letters are essential to the
Commission's enforcement function. In this case, Opp Ed's apparent
violations touch on an area of critical importance -- the integrity of
the EAS system. We therefore propose an $11,000 forfeiture against Opp
Ed for twice failing to respond to Commission communications. This
forfeiture amount is consistent with precedent in similar cases, where
companies failed to provide responses to Bureau inquiries concerning
compliance with the Commission's rules despite evidence that the LOIs
had been received.
13. We also direct Opp Ed to respond fully to the Follow-up LOI within ten
(10) days of the release of this Notice of Apparent Liability for
Forfeiture and Order. Failure to do so may constitute an additional
violation subjecting WJIF to further penalties, including potentially
higher monetary forfeitures.
14. Accordingly, based on the facts, we find Opp Ed apparently liable for
a combined forfeiture of $19,000 for WJIF's apparent willful and
repeated violation of Sections 11.35, 11.61(a) and 73.1015 of the
Rules.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311 and 1.80 of the Rules, Opp Educational
Broadcasting Foundation, Licensee of FM Radio Station WJIF, IS hereby
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
nineteen thousand dollars ($19,000) for willful and repeated violation
of Sections 11.35, 11.61(a) and 73.1015 of the Rules.
16. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture and Order, Opp Educational Broadcasting
Foundation, Licensee of FM Radio Station WJIF, SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
17. IT IS FURTHER ORDERED that Opp Educational Broadcasting Foundation,
Licensee of FM Radio Station WJIF, shall fully respond to the March 4,
2009 Follow-Up Letter of Inquiry sent by the Enforcement Bureau in the
manner described in the Letter of Inquiry and the Follow-Up Letter of
Inquiry within ten (10) days of the release of this Notice of Apparent
Liability for Forfeiture and Order.
18. 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. Opp Educational Broadcasting Foundation,
Licensee of FM Radio Station WJIF, will also send electronic
notification on the date said payment is made to
Jacqui.Johnson@fcc.gov and JoAnn.Lucanik@fcc.gov.
19. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
20. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
21. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by first class mail and
certified mail return receipt requested to Mr. Haywood F. Nawlin,
Administrator, Opp Educational Broadcasting Foundation, Licensee of FM
Radio Station WJIF, 104 Folsom Street, Opp, Alabama 36467.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
File No. BRED-20040122AEE. The Commission granted Opp Educational
Broadcasting Foundation a license renewal for station WJIF on January 31,
2007. The license expires on April 1, 2012.
47 C.F.R. S:S: 11.35 and 11.61(a).
47 C.F. R. S: 73.1015.
47 C.F.R. S:S: 11.1 - 11.61.
47 C.F.R. S:11.31.
47 C.F.R. S:11.11(a).
47 C.F.R. S: 11.61(a).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Mr. Haywood F.
Nawlin, Administrator, Opp Educational Broadcasting Foundation, Licensee
of Radio Station WJIF (November 4, 2008).
47 C.F.R. S: 73.1820.
See Letter from Haywood F. Nawlins, WJIF Radio to Kathryn S. Berthot
Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (dated December 18, 2008) ("LOI Response").
Id.
Id.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Mr. Haywood F.
Nawlin, Administrator, Opp Educational Broadcasting Foundation, Licensee
of Radio Station WJIF (March 4, 2009) ("Follow-Up LOI").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(a).
The term "willful," as used in Section 503(b) of the Act, means the
conscious and deliberate commission or omission of such act, irrespective
of any intent to violate the Commission's Rules. 47 U.S.C. S: 312(f)(1). A
violation is "repeated" within the meaning of Section 503(b) of the Act if
it occurs more than once or continues for more than one day. 47 U.S.C. S:
312(f)(2). See Southern California Broadcasting Co., Memorandum Opinion
and Order, 6 FCC Rcd 4387, 4388 (1991).
The Commission rules provide that every AM and FM broadcast station is
part of the nationwide EAS network and is categorized as a participating
national EAS source ("EAS Participant") unless the station affirmatively
requests authority to not participate. 47 C.F.R. S:S: 11.11 and 11.41.
See 47 C.F.R. S: 11.11(a); see also 47 C.F.R. S: 11.31.
47 C.F.R. S: 11.61(a). The Emergency Alert System 2007 AM and FM Handbook
("EAS Operating Handbook") can be found at
http://www.fcc.gov/pshs/services/eas/handbooks.html.
47 C.F.R. S: 11.35.
47 C.F.R. S: 11.35(c).
47 C.F.R. S: 73.1015.
47 C.F.R S:1.17.
47 C.F.R. S: 73.1015.
47 U.S.C. S: 503(b)(1); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 503(b)(2)(E); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines ("Forfeiture Policy Statement"), Report and Order,
12 FCC Rcd 17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999).
See 47 C.F.R. S: 1.80(b)(4); Forfeiture Policy Statement, 12 FCC Rcd at
17113.
See 47 C.F.R. S: 1.80(b)(4); Forfeiture Policy Statement, 12 FCC Rcd at
17114.
See, e.g., Charter Communications, Inc., Notice of Apparent Liability for
Forfeiture and Order, 24 FCC Rcd 917, 921 (Enf. Bur. 2009) (proposing
$25,000 forfeiture for failing to fully respond to LOI); Digital Antenna,
Inc., Notice of Apparent Liability for Forfeiture and Order, 23 FCC Rcd
7600, 7602 (Enf. Bur., Spectrum Enf. Div. 2008) (proposing $11,000
forfeiture for failing to fully respond to LOI); Hauppauge Computer Works,
Inc., Notice of Apparent Liability for Forfeiture and Order, 23 FCC Rcd
3684, 3686 (Enf. Bur., Spectrum Enf. Div. 2008) (proposing $11,000
forfeiture for failing to fully respond to LOI).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
47 C.F.R. S: 1.80.
Federal Communications Commission DA 09-1958
2
Federal Communications Commission DA 09-1958