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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Bethune-Cookman College, Inc. File Number EB-08-TP-0406
)
Licensee of station WRWS-LP NAL/Acct. No. 200932700004
)
Daytona Beach, FL 32114-3099 FRN: 0009502865
)
Facility ID Number: 134386
)
)
FORFEITURE ORDER
Adopted: April 9, 2009 Released: April 13, 2009
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 nine thousand six hundred dollars ($9,600) to
Bethune-Cookman College, Inc. ("Bethune-Cookman"), licensee of station
WRWS-LP, in Daytona Beach, Florida, for willful and repeated violation
of Section 301 of the Communications Act of 1934, as amended ("Act"),
and Section 11.35(a) of the Commission's Rules ("Rules"). The noted
violations involve Bethune-Cookman's operation of an unlicensed radio
transmitter and failure to install the required Emergency Alert System
("EAS") equipment.
II. BACKGROUND
2. On October 31, 2008, agents from the Commission's Tampa Office of the
Enforcement Bureau ("Tampa Office"), accompanied by the station's
general manager and chief engineer, conducted an inspection of low
power FM radio station WRWS-LP's main studio in Daytona Beach, Florida
during normal business hours. The agents observed that the station was
using a broadcast studio to transmitter link ("STL") transmitter. The
station's chief engineer stated that the station was operating an STL
on 950.000 MHz with 2.8 watts of output power. Neither the chief
engineer nor the general manager could produce a license for the STL
operation or any evidence that the station had ever had an STL
license. The agents also observed that the station did not have an
installed EAS decoder. The general manager stated that he was unaware
that non-commercial low power FM stations were required to have EAS
equipment. The chief engineer stated that he tried before, without
success, to convince the station management that an EAS decoder was
needed.
3. After the inspection of the main studio, the agents from the Tampa
Office inspected the station's transmitter site, also in Daytona
Beach, Florida. The agents observed an STL receiver in operation at
the transmitter site. Using direction finding techniques, the agents
confirmed the station was operating an STL from the main studio to the
transmitter site on 950.000 MHz. There were no other means by which to
transmit the station's programming from the main studio to the
transmitter site, besides the STL equipment.
4. On January 21, 2009, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture to Bethune-Cookman in the amount of eighteen
thousand dollars ($18,000), for the apparent willful and repeated
violation of Section 301 of the Act and Section 11.35(a) of the Rules.
Bethune-Cookman submitted a response to the NAL requesting a reduction
or cancellation of the proposed forfeiture.
III. DISCUSSION
5. The proposed forfeiture amounts in this case was assessed in
accordance with Section 503(b) of the 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 Bethune-Cookman'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 301 of the Act requires that no person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio within the United States except under and in
accordance with the Act and with a license. The Act specifically
defines within the United States as transmissions or communications
from one place within a Territory: to another place in the same
Territory; to another State, Territory or possession of the United
States; or to any place in a foreign country or to any vessel. Section
74.6 of the Rules states applicants for and licensees of low power
auxiliary stations authorized under subparts D, E, F, and H of this
part are subject to the application and procedural rules for wireless
telecommunications services contained in part 1, subpart F of this
chapter. Section 1.903 of the Rules, located in part 1, subpart F,
requires stations in the Wireless Radio Services to be used and
operated with a valid authorization granted by the Commission. During
the inspection on October 31, 2008, agents from the Tampa Office
observed that station WRWS-LP was operating an aural broadcast STL on
the frequency of 950.00 MHz. The station's general manager and chief
engineer admitted that the station was using 950.00 MHz to transmit
the station's programming from the main studio to the transmitter
site. When the agents requested to see the license for the STL link,
the general manager and chief engineer admitted that they did not have
an authorization for the operation. Later on this date, using
direction finding techniques, the agents confirmed that WRWS-LP was
operating the broadcast STL on 950.00 MHz from the main studio to the
transmitter site. The station operates all year, Monday to Friday from
3:00 am until 3:00 pm. In addition, between July 1 and December 31,
the station operates from 3:00 am Saturday until 3:00 am Sunday. At
the time of the inspection, there was no other means by which to
transmit programming from the main studio to the transmitter site.
7. In response to the NAL, Bethune-Cookman does not deny that it operated
an unlicensed STL. Nevertheless, it requests a reduction of the
proposed forfeiture on the basis of its good faith efforts to comply
with the Rules. Bethune-Cookman provided evidence that in April 2005
it paid an entity to prepare and submit the 601 Form necessary to
obtain a license for the STL. Bethune-Cookman asserts it does not know
why the license was never obtained and is in the process of obtaining
a license for its STL. Bethune-Cookman adds that the STL violation
occurred during the tenure of the previous Dean and was not reported
or observed by the current Dean. Bethune-Cookman also requests a
reduction, because it alleges its violation is more akin to operation
of unauthorized equipment, which carries a base forfeiture of $5,000.
8. Based on the evidence before us, we find that Bethune-Cookman
willfully and repeatedly violated Section 301 of the Act by operating
an unlicensed radio transmitter. Bethune-Cookman is responsible for
actions, which occurred during the current and previous Deans'
tenures. The Commission has consistently found "[l]icensees and other
Commission regulatees are responsible for the acts and omissions of
their employees and independent contractors," and when the actions of
independent contractors or employees have resulted in violations, the
Commission has "consistently refused to excuse licensees from
forfeiture penalties where actions of employees or independent
contractors have resulted in violations." Moreover, we do not find a
reduction based on good faith compliance with the rules is warranted.
Although Bethune-Cookman hired a contractor to obtain an STL license
in April 2005, it failed to follow up with the contractor or otherwise
inquire about the status of its missing STL license until after the
agents' inspection. However, because Bethune-Cookman has a valid
license for station WRWS-LP and only operated an unlicensed STL, the
unauthorized operation in this case is not a violation on the same
order as is construction and operation with no color of authority.
Accordingly, we reduce the forfeiture associated with this violation
to $4,000.
9. Section 11.35(a) of the Rules requires Broadcast stations to be
responsible for ensuring that ... EAS Decoders ... used as part of the
EAS are installed so that the monitoring and transmitting functions
are available during the times the stations are in operation. Section
11.11(a) of the Rules states that as of January 1, 1997, low power FM
stations are required to have an EAS decoder. During an inspection on
October 31, 2008 when the station was in operation, station WRWS-LP
did not have an installed EAS decoder. The station's general manager
was not aware at the time of the inspection that the station was
required to have an installed EAS decoder. There was no evidence that
the station had ever installed an EAS decoder at the station, and the
station's license was granted February 12, 2008. Based on the evidence
before us, we find that Bethune-Cookman willfully and repeatedly
violated Section 11.35(s) of the Rules by failing to install the
required EAS decoder.
10. In response to the NAL, Bethune-Cookman does not deny that it failed
to install an EAS decoder, but, nevertheless, requests a reduction of
the forfeiture, because it has taken the steps necessary to obtain the
equipment needed to remedy the EAS violation. 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. Therefore, we find no grounds upon which to reduce the
forfeiture associated with this violation.
11. In addition, Bethune-Cookman requests reduction or cancellation of the
proposed forfeiture, because its station has no previous history of
violations, operates in an educational setting, and has an inability
to pay the forfeiture. It is established Commission policy that there
is no proposed forfeiture exemption or reduction based on the
noncommercial status of a station. We have evaluated the station's
budgetary information and Bethune-Cookman's financial documentation
and conclude a reduction based on inability to pay is not warranted.
We have reviewed our records and conclude that the forfeiture should
be reduced to $9,600, based on Bethune-Cookman's history of compliance
with the rules.
12. We have examined Bethune-Cookman'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 reduce the forfeiture
associated with the unlicensed STL violation to $4,000 and conclude
that a reduction of the proposed total forfeiture to $9,600 is
warranted, based on Bethune-Cookman's history of compliance with the
rules.
IV. ORDERING CLAUSES
13. 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, Bethune-Cookman College, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of nine thousand six
hundred dollars ($9,600) for violations of Section 301 of the
Communications Act, and Section 11.35(a) of the Rules.
14. 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[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.
Bethune-Cookman will also send electronic notification on the date
said payment is made to SCR-Response@fcc.gov.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Bethune-Cookman
College, Inc. at its address of record and to its counsel, Kelly V.
Parsons, Cobb Cole, 150 Magnolia Avenue, PO Box 2491, Daytona Beach,
FL 32115-2491.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 11.35(a).
The transmitter in use was an Armstrong XLINK STL transmitter, a device
designed to be used pursuant to Part 73 of the Rules.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932700004
(Enf. Bur., Tampa Office, January 21, 2009) ("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 U.S.C. S: 301.
47 C.F.R. S: 74.6.
47 C.F.R. S: 1.903.
Because the station began broadcasting on February 12, 2008, the STL
transmitter was in use more than 720 hours annually. See 47 C.F.R. S:
74.24(d).
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).
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863,-64, para. 7 (2002); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34 (1991)(holding that a company's reliance on an independent
contractor to construct a tower in compliance of FCC rules does not excuse
that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
for violations of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248 (Enf. Bur. 2004)
(holding a licensee liable for its employee's failure to conduct weekly
EAS tests and to maintain the "issues/programs" list).
American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf. Div.,
Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, 96 FCC 2d
1235, 1244 (1984).
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. See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099
(1994).
See, e.g., WWC License LLC Licensee of Microwave Stations WPJE660, WPJD256
and WPJA761, Kansas, 16 FCC Rcd 19490 (2001); New York Radio Service,
WPTM988, Brooklyn, New York, 19 FCC Rcd 10704 (Enf.Bur. 2004), Arnold
Broadcasting Company, Inc., Forfeiture Order, 19 FCC Rcd 14123 (Enf. Bur.
2004).
47 C.F.R. S: 11.35(a).
47 C.F.R. S: 11.11(a).
We do not need to address whether this apparent violation was willful,
because we find that the apparent violation was repeated. However, "prior
knowledge or understanding of the law is unnecessary to a determination of
whether a violation existed [and] ... [t]he Commission also does not
consider ignorance of the law a mitigating factor." Profit Enterprises,
Inc., 8 FCC Rcd 2846, 2846 (1993), cancelled on other grounds, 12 FCC Rcd
14999 (1997); see also Southern California Broadcasting Company, 6 FCC Rcd
4387 (1991). Moreover, the station's chief engineer stated that he
previously tried to convince the station that a decoder was required.
See Bible Broadcasting Network, Inc., Forfeiture Order, 23 FCC Rcd. 8743
(Media Bur. 2008) (rejecting argument that forfeiture should be cancelled
or reduced because of noncommercial educational status); see also Lebanon
Educational Broadcasting Foundation, Memorandum Opinion and Order, 21 FCC
Rcd 1442, 1446 (Enf. Bur. 2006) ("Where the Rule is violated, Section 1.80
provides that a monetary forfeiture may be imposed, and there is no
exemption or reduction based on the noncommercial status of a station").
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4),
11.35(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-812
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Federal Communications Commission DA 09-812