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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Beacon Broadcasting, Inc. ) File Number EB-09-PA-0273
Licensee of AM Station WGRP, FM ) NAL/Acct. No.
Station WEXC, and Aural Studio 201132400001
Transmitter Link WQGW238 )
FRN 0008-53-9157
Greenville, PA )
Facility ID # 25227 )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 29, 2010 Released: November 1, 2010
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Beacon Broadcasting, Inc. ("Beacon"), licensee of AM station
WGRP, FM station WEXC, and aural studio transmitter link ("STL")
WQGW238, in Greenville, Pennsylvania, apparently willfully and
repeatedly violated Sections 73.3526(e)(12), 73.1745(a) and 1.903(a)
of the Commission's Rules ("Rules") by failing to: (1) maintain radio
issues/programs lists in the station's public inspection file; (2)
operate its broadcast station in a manner which complies with the
terms of the station authorization; and (3) operate an STL for Station
WEXC on an authorized frequency. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Beacon is apparently liable for a forfeiture in the amount of eighteen
thousand dollars ($18,000).
II. BACKGROUND
2. On November 18, 2009 and November 19, 2009, an agent from the
Enforcement Bureau's Philadelphia Office ("Philadelphia Office")
conducted an inspection at the WGRP main studio in Greenville,
Pennsylvania with the station's General Manager. While at the main
studio, the agent reviewed the contents of the WGRP public inspection
file and found that it did not contain any radio issues/programs lists
since the grant of the latest WGRP renewal application on July 28,
2006. In Exhibit 11 of its renewal application, Beacon acknowledged
that the public inspection file did not contain the radio
issues/programs lists prior to September 14, 2005 because the former
station principals had not prepared them. Beacon also stated that
"[t]he public inspection file is complete and timely for all periods
after the consummation date of the transfer of control."
3. In addition, on November 18, 2009 at 10:13 p.m. and again on November
19, 2009 at 2:28 p.m., the agent conducted field strength measurements
of the WGRP signal on the frequency 940 kHz. The agent found that the
field strength of the station during the nighttime was 5.2 mV/m and
the field strength of the station during the daytime was 31.0 mV/m.
During the inspection on November 19, 2009, the agent observed that
WGRP was operating with an antenna input power of 957 Watts during the
daytime. Based on both the field strength measurements and the
observed daytime antenna input power, the agent calculated that WGRP
was operating with 26.9 Watts on November 18, 2009 at 10:13 p.m. The
license for WGRP, by contrast, requires operation with an antenna
input power of 2.2 Watts at nighttime.
4. Further, during the inspection on November 19, 2009, the agent found
that Beacon was operating a Nautel AM Transmitter (Model J1000) and
that Beacon had programmed the transmitter to automatically reduce
power to 28 Watts at nighttime. The FCC agent contacted a
representative from Nautel through the Technical Support Line on that
date to determine if the Nautel J1000 AM Transmitter is capable of
operating at WGRP's authorized nighttime power of 2.2 Watts. The
Nautel representative informed the FCC agent that the Nautel J1000 AM
Transmitter is only FCC certified to operate at power levels between
10 Watts and 1100 Watts. The representative also said that the Nautel
J1000 AM Transmitter is not capable of operating at 2 Watts without
experiencing audio distortion. The agent found that the minimum
operating power for the WGRP transmitter is also specified as 10 Watts
on the Technical Summary Page from the Nautel J1000 manual.
5. Beacon shares the WGRP main studio with co-owned FM broadcast station
WEXC. On November 19, 2009, the agent also inspected the STL for
station WEXC. The agent observed that Beacon was operating a Mosely
Associates STL (Model PCL505) on the frequency 951.500 MHz. The
service label on the rear of the STL specified that J Squared
Technical Service of Grants Pass, Oregon programmed the transmitter
with the frequency 951.500 MHz on February 22, 2001. Beacon's General
Manager showed the agent a copy of the license for station WPYK361,
which authorized operation of an STL on the frequency 951.500 MHz at
the WEXC main studio location. Commission records show, however, that
the license WPYK361 was cancelled on March 20, 2007 pursuant to a
request that Beacon filed on that same day. At the time of the
inspection, Beacon was only authorized to operate an STL for WEXC on
the frequency 948.000 MHz, under the license for station WQGW238.
III. DISCUSSION
6. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission there under, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
7. Section 73.3526(e)(12) of the Rules requires AM and FM broadcast
licensees to place in their public inspection file, for each calendar
quarter, a list of programs that have provided the station's most
significant treatment of community issues during the preceding three
month period. This list is known as the radio issues/programs list.
Copies of the radio issues/programs list must be maintained in the
station's public inspection file until final action has been taken on
the station's next renewal application. Therefore, Beacon was required
to maintain copies of all quarterly radio issues/program lists that it
prepared since July 28, 2006, the grant date of the latest WGRP
renewal application. Beacon did not maintain the radio issues/programs
lists in the WGRP public inspection file for the period between July
28, 2006 and November 19, 2009. We note that Beacon clearly understood
that it was required to maintain the radio issues/programs lists in
the public inspection file because it acknowledged in its most recent
renewal application that the public inspection file was missing
quarterly radio issues/programs lists prior to September 14, 2005. We
find that Beacon's failure to maintain the radio issues/programs lists
in the station's public inspection file was willful and repeated.
Accordingly, based on the evidence before us, we find that Beacon
apparently willfully and repeatedly violated Section 73.3526(e)(12) of
the Rules.
8. Section 73.1745(a) provides that "[n]o 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." The
license for station WGRP requires the station to operate with an
antenna input power of 2.2 Watts during the nighttime. The agent found
that Beacon was operating station WGRP with an antenna input power of
26.9 Watts on November 18, 2009 at 10:13 p.m. Moreover, Beacon
programmed the WGRP transmitter to automatically reduce to this
unauthorized power level at nighttime. Thus, we find that the
violation was willful. Beacon has operated its Nautel J1000 AM
Transmitter, which is not capable of operating at station WGRP's
authorized nighttime power level, since its purchase on November 30,
2005. We therefore find that the violation was also repeated.
Accordingly, based on the evidence before us, we find that Beacon
apparently willfully and repeatedly violated Section 73.1745(a) of the
Rules by failing to operate its broadcast station in a manner which
complies with the terms of the station authorization.
9. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Services must be used and operated only in accordance with the
rules applicable to their particular service and with a valid
authorization granted by the Commission. Section 1.947(a) of the Rules
specifies that all major modifications as defined in Section 1.929 of
the Rules require prior Commission approval. Section 1.929(a)(6) of
the Rules lists one of the major modifications as "any application or
amendment requesting to add a frequency or frequency block for which
the applicant is not currently authorized." On November 19, 2009, an
agent from the Philadelphia Office found that Beacon was operating the
WEXC STL on the unauthorized frequency 951.500 MHz. At the time of the
inspection, Beacon held a license for its STL under the call sign
WQGW238, authorizing operation on the frequency 948.000 MHz. Beacon
once held authorization to operate an STL on the frequency 951.500 MHz
under the license for station WPYK361. The Commission cancelled the
license for WPYK361 on March 20, 2007, however, pursuant to a request
that Beacon filed on that same day. Beacon affirmatively cancelled the
license authorizing operation of the STL on the frequency 951.500 MHz,
but nonetheless continued to operate on that frequency. We therefore
find that the violation was willful and repeated. Accordingly, based
on the evidence before us, we find that Beacon apparently willfully
and repeatedly violated Section 1.903(a) of the Rules by operating a
Studio Transmitter Link on an unauthorized frequency.
10. Pursuant to The Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation with
excessive power is $4,000 and for operation on an unauthorized
frequency is $4,000. The base forfeiture amount for violation of the
public file rule is $10,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
Beacon is apparently liable for a forfeiture in the amount of $18,000.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Beacon Broadcasting, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eighteen thousand dollars ($18,000) for violations of
Sections 73.3526(e)(12), 73.1745(a) and 1.903(a) of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Beacon Broadcasting, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
13. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Beacon Broadcasting, Inc. shall also send
electronic notification to NER-Response@fcc.gov on the date said
payment is made.
14. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
Northeast Region, Philadelphia Field Office, One Oxford Valley
Building, Suite 404, 2300 East Lincoln Highway, Langhorne,
Pennsylvania 19047 and must include the NAL/Acct. No. referenced in
the caption. The statement should also be emailed to
NER-Response@fcc.gov.
15. 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 ("GAAP"); 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.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Beacon Broadcasting, Inc. at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
District Director
Philadelphia Field Office
Northeast Region
Enforcement Bureau
47 C.F.R. S:S: 73.1745(a), 1.903(a), 73.3526(e)(12).
47 U.S.C. S: 503(b).
See File No. BR-20060323AHR (filed March 27, 2006).
Id. The transfer of control of Beacon Broadcasting Inc. from the former
principal shareholder, Michael Arch, to the current principal shareholder,
Harold F. Glunt, was consummated on September 14, 2005. See File No.
BTC-20050609AAH.
The antenna input power was based on the forward power reading from the
front panel display of the Nautel 1000 AM Broadcast Transmitter. The agent
did not determine the antenna input power using the reading from the
station's common point meter, because the common point meter had not been
recently calibrated and appeared to be providing erroneous readings. The
agent reported the problem to Beacon's General Manager.
See File No. BZ-20070216ABS.
See File No. 0002957991 (filed March 20, 2007).
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 (1991), recon. denied, 7 FCC Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S: 73.3526(e)(12).
47 C.F.R. S: 73.1745(a)
According to a representative of Nautel, Beacon Broadcasting purchased the
J1000 AM Transmitter (S/N B150) on November 30, 2005 for station WGRP.
47 C.F.R. S: 1.903(a). At issue here is Beacon's operation of its STL,
which is considered an aural broadcast auxiliary station. Section 74.6 of
the Rules provides that "[a]pplicants for and licensees of. . .aural
broadcast stations. . .are subject to the application and procedural rules
for wireless telecommunications services contained in part 1, subpart F of
this chapter." 47 C.F.R. S: 74.6. Part 1, subpart F includes Section
1.903(a) of the Rules.
47 C.F.R. S: 1.947(a).
47 C.F.R. S: 1.929(a)(6).
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 C.F.R. S:1.80.
Id.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
73.3526(e)(12), 73.1745(a), 1.903(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 10-2097
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Federal Communications Commission DA 10-2097