Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554


                                 )                               
                                                                 
                                 )                               
                                                                 
     In the Matter of            )                               
                                                                 
     Rodgson, Inc.               )                               
                                     File No. EB-09-AT-0038      
     Licensee of Radio Station   )                               
                                     NAL/Acct. No. 201032480002  
     WSDQ (AM)                   )                               
                                     FRN 0007676935              
     Dunlap, TN                  )                               
                                                                 
     Facility ID #67280          )                               
                                                                 
                                 )                               
                                                                 
                                 )                               


                                FORFEITURE ORDER

   Adopted: October 25, 2010 Released: October 27, 2010

   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 five thousand five hundred dollars ($5,500) to Rodgson,
       Inc. ("Rodgson"), licensee of station WSDQ(AM), in Dunlap, Tennessee,
       for willful and repeated violation of Sections 11.35, 73.49 and
       73.3526  of the Commission's Rules ("Rules"). The noted violations
       involve Rodgson's failure to: (1) maintain operational Emergency Alert
       System ("EAS") equipment; (2) enclose the base of its AM antenna
       structure within a locked fence; and (3) maintain and make available a
       public inspection file at its main studio.

   II. BACKGROUND

    2. On August 19, 2009, agents from the Enforcement Bureau's Atlanta
       Office ("Atlanta Office"), accompanied by the station's general
       manager and other station staff, inspected the main studio of radio
       station WSDQ(AM). The agents found that the station's installed EAS
       receivers were not receiving audio from any monitoring assignment.
       Neither the station staff nor the general manager knew how to send an
       EAS test, and there were no EAS logs to confirm recent EAS
       functionality. The general manager and station staff admitted that the
       EAS equipment had not worked for at least a year.

   3. The agents asked to inspect the station's public inspection file and
   were told by the station staff and general manager that there was no
   public inspection file and that the station never had one. Furthermore,
   the station personnel were not familiar with the public inspection file
   requirements, and no one could produce any of the documents required to be
   in the public inspection file.

    3. The agents, accompanied by the general manager, also inspected the
       station's antenna tower fence. The general manager admitted that he
       had not visited the tower site in a long time. The agents observed
       that the station's antenna tower was energized during operating hours
       and therefore had radiofrequency potential at its base. The agents
       observed that the lower planks of the wooden fencing surrounding the
       tower were missing and thus provided access to the base of the antenna
       structure. The agents also found that the gate for the fence was
       removed from its hinges and was propped up against the gate opening.
       There was no evidence of a working locking mechanism, except for a
       rusted metal linked chain that was wrapped around one end of the
       wooden gate and hung from a nail on the support post. Moreover, the
       agents did not observe any perimeter property fence.

    4. On January 11, 2010, the Atlanta Office issued a Notice of Apparent
       Liability for Forfeiture to Rodgson in the amount of twenty-five
       thousand dollars ($25,000), for the apparent willful and repeated
       violation of Sections 11.35, 73.49 and 73.3526 of the Rules. Rodgson
       submitted a response to the NAL requesting reduction or cancellation
       of the proposed forfeiture based on its inability to pay. Rodgson's
       response does not dispute the violations identified in the NAL.

   III. DISCUSSION

    5. 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. In examining Rodgson'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. As discussed below, we conclude that the forfeiture should be
       reduced to $5,500 based on Rodgson's documented inability to pay the
       proposed forfeiture.

    6. Every broadcast station is part of the nationwide EAS network and is
       categorized as a participating national EAS source unless the station
       affirmatively requests authority to refrain from participation, and
       that request is approved by the Commission. The EAS enables the
       President and state and local governments to provide immediate and
       emergency communications and information to the general public.  State
       and local area plans identify local primary sources responsible for
       coordinating carriage of common emergency messages from sources such
       as the National Weather Service or local emergency management
       officials.  Required monthly and weekly tests originate from EAS Local
       or State Primary sources and must be retransmitted by the
       participating station. As the nation's emergency warning system, the
       Emergency Alert System is critical to public safety, and we recognize
       the vital role that broadcasters play in ensuring its success. The
       Commission takes seriously any violations of the Rules implementing
       the EAS and expects full compliance from its licensees.

   7. Section 11.35 of the Rules requires all broadcast stations to ensure
   EAS encoders, decoders and attention signal generating and receiving
   equipment are installed and operational so that monitoring and
   transmitting functions are available during the times the stations are in
   operation. On August 19, 2009, agents from the Atlanta Office observed
   that the station's EAS equipment was not installed such that its transmit
   and receive functions were fully operational. The only evidence of
   functional EAS equipment at the station was an old EAS log from 1997;
   there was no other evidence to demonstrate any EAS activity at the station
   after 1997. Moreover, station personnel were not familiar with EAS
   operations or how to send an EAS test. The station's general manager also
   admitted at the time of the inspection that the EAS equipment had not
   worked for at least a year. Based on the evidence before us, we find that
   Rodgson willfully and repeatedly violated Section 11.35(a) of the Rules by
   failing to ensure that EAS equipment was operational when the station was
   in operation.

    7. Section 73.49 of the Rules states that "antenna towers having radio
       frequency potential at the base...must be enclosed within effective
       locked fences or other enclosures." Rodgson's tower was energized
       during operating hours and therefore had radio frequency potential at
       its base. On August 19, 2009, agents from the Atlanta Office observed
       that the wooden fence surrounding the station's antenna structure was
       missing its lower planks and thus provided access to the tower base.
       The fence was in such a condition of disrepair at the time of the
       FCC's inspection so as to have been ineffective for more than one day
       and the station's general manager admitted that he had not visited the
       tower site in a long time. In addition, the gate for the fence was
       removed from its hinges and propped up against the gate opening. The
       gate's rusty chain, which may have previously served as a lock, did
       not appear to have been functional as a locking mechanism for quite
       some time. The agents also did not observe a fence around the
       perimeter of the property. Thus, based on the evidence before us, we
       find that Rodgson willfully and repeatedly violated Section 73.49 of
       the Rules by failing to maintain an effective locked fence or other
       enclosure at the base of the station's antenna tower.

    8. Section 73.3526 of the Rules states that "[e]very permittee or
       licensee of an AM, FM, TV or a Class A station in the commercial
       broadcast services shall maintain a public inspection file containing
       material outlined in this section."  The public inspection file shall
       be maintained at the main studio of the station and shall be available
       for public inspection at any time during regular business hours. On
       August 19, 2009, agents from the Atlanta Office asked to inspect the
       station's public inspection file at its main studio during normal
       business hours. The general manager stated that the station never had
       a public inspection file. The agents found no evidence of a public
       inspection file at the station and the station's staff was unable to
       produce any of the required documents. Thus, based on the evidence
       before us, we find that Rodgson willfully and repeatedly violated
       Section 73.3526 of the Rules by failing to maintain a public
       inspection file. We also find that Rodgson willfully violated Section
       73.3536 of the Rules by failing to make available a public inspection
       file.

    9. In its response to the NAL, Rodgson does not dispute that it violated
       the rules identified above. Rodgson instead describes the steps it
       took to correct the violations. The Commission has long held, however,
       that post-inspection corrective action taken to come into compliance
       with the Rules is expected, and such corrective action does not
       nullify or mitigate any prior forfeitures or violations. Rodgson also
       asserts that it did not intend to violate the rules, and, in the case
       of the public inspection file rules, was unaware of the requirements.
       A violation, however, may be "willful" if it is conscious and
       deliberate, irrespective of any intent to violate the rules. Finally,
       Rodgson requests reduction or cancellation of the proposed forfeiture,
       because it asserts the forfeiture amount would pose a financial
       hardship. It submits its three most recent years of tax returns to
       substantiate its claim. With regard to an individual's or entity's
       inability to pay, the Commission has determined that, in general,
       gross revenues are the best indicator of an ability to pay a
       forfeiture. We have reviewed Rodgson's documentation and conclude that
       a reduction of the proposed forfeiture is warranted. Accordingly,
       pursuant to the statutory factors above, and in conjunction with the
       Forfeiture Policy Statement, we reduce the forfeiture to $5,500, based
       on Rodgson's inability to pay the proposed forfeiture.

   IV. ORDERING CLAUSES

   10. 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, Rodgson, Inc. IS LIABLE FOR A
       MONETARY FORFEITURE in the amount of five thousand five hundred
       dollars ($5,500) for violations of Sections 11.35, 73.49 and 73.3526
       of the Rules.

   11. 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.
       Rodgson shall also send electronic notification to
       SCR-Response@fcc.gov  on the date said payment is made.

   12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail Return Receipt Requested to Rodgson, Inc. at
       its address of record and to its counsel, Larry D. Perry, 11464 Saga
       Lane, Knoxville, TN 37931-2819.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   47 C.F.R. S:S: 11.35, 73.49, 73.3526.

   At the time of the inspection, the station's EAS equipment was incapable
   of sending a test over the air.

   The only evidence of functional EAS equipment at the station was an old
   EAS log from 1997.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032480002
   (Enf. Bur., Atlanta Office, rel. January 11, 2010) ("NAL").

   47 U.S.C. S: 503(b).

   47 C.F.R. S: 1.80.

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
   FCC Rcd 303 (1999).

   47 U.S.C. S: 503(b)(2)(E).

   47 C.F.R. S:S: 11.11, 11.41. Rodgson states that it thought that it was
   not participating in the EAS network. However, it could not locate a
   non-participating national authorization letter from the Commission. See
   47 C.F.R. S: 11.41(b).

   47 C.F.R. S:S: 11.1, 11.21.

   47 C.F.R. S: 11.18.  State EAS plans contain guidelines that must be
   followed by broadcast and cable personnel, emergency officials and
   National Weather Service personnel to activate the EAS for state and local
   emergency alerts.  The state plans include the EAS header codes and
   messages to be transmitted by the primary state, local and relay EAS
   sources.

   47 C.F.R. S: 11.35.

   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', when used with reference to the
   commission or omission of any act, 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, 4388 P: 5 (1991), recon. denied, 7 FCC Rcd 3454 (1992).

   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 at 4388; Western Wireless Corporation, 18 FCC Rcd
   10319, 10328 n.56 (2003).

   47 C.F.R. S: 73.49.

   47 C.F.R. S: 73.3526.

   47 C.F.R. S:S: 73.3526(b)(1), 73.3526(c).

   See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994),
   International Broadcasting Corporation, Order on Review, 25 FCC Rcd 1538
   (2010), Rama Communications, Inc., Memorandum Opinion and Order, 24 FCC
   Rcd 4981 (Enf. Bur. 2009), Bethune-Cookman College, Inc.. Forfeiture
   Order, 24 FCC Rcd 4513 (South Central Region 2009).

   See supra note 13.

   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: 0.111, 0.311, 1.80(f)(4), 11.35,
   73.49, 73.3526.

   47 U.S.C. S: 504(a).

   Federal Communications Commission DA 10-2044

   2

   Federal Communications Commission DA 10-2044