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 )
Daniel D. Smith )
File No.: EB-10-KC-0021
Licensee of Station KANR )
NAL/Acct. No. 201132560001
Belle Plaine, Kansas )
FRN: 0002288728
Facility ID #15410 )
Owner of Antenna Structure #1033278 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 8, 2010 Released: November 10, 2010
By the District Director, Kansas City Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Daniel D. Smith, licensee of station KANR and owner of antenna
structure number 1033278 in Belle Plaine, Kansas, apparently willfully
and repeatedly violated Sections 11.35(a), 17.47, 17.50, and 73.3526
of the Commission's Rules ("Rules") by failing to: (1) maintain
operational emergency alert system ("EAS") equipment; (2) make an
observation of antenna structure lighting at least once each 24-hour
period; (3) repaint the antenna structure as necessary to maintain
good visibility; and (4) maintain and make available a complete public
inspection file. We conclude that Mr. Smith is apparently liable for a
forfeiture in the amount of twenty-five thousand dollars ($25,000).
II. BACKGROUND
2. On March 31, 2010, agents from the Enforcement Bureau's Kansas City
Office ("Kansas City Office") inspected the main studio of radio
station KANR during regular business hours. The agents observed that
the station's EAS equipment was inoperable because the power cord was
disconnected. Mr. Smith stated that the EAS equipment became
inoperable sometime between the year 2000 and the year 2006 and had
remained inoperable since then. Mr. Smith said that he tried to hire a
contract engineer to fix the EAS but the engineer was too busy to
conduct the repairs. Station KANR had no logs documenting when the
last EAS test had been sent or when the EAS equipment became
inoperable. Agents from the Kansas City Office also observed that the
station's public inspection file was missing quarterly issues/programs
lists after the fourth quarter of 2008. Mr. Smith admitted that he had
not placed any issues/programs lists in the public inspection file
after the fourth quarter of 2008.
3. Also on March 31, 2010, the agents from the Kansas City Office
inspected the station KANR tower bearing antenna structure
registration number 1033278, which is registered to Mr. Smith. The
agents observed that the paint on the tower was severely faded and
areas of bare metal were showing. Mr. Smith stated that the tower was
last painted before it was erected in 1996. In addition, the agents
observed that all three flashing beacons on the structure were either
non-lighted or non-flashing and several of the side lamps on the
structure were inoperable. Mr. Smith admitted that the station did not
have any automated equipment to monitor the structure's lighting. He
also admitted that no station personnel were monitoring visually the
lighting on the structure every 24 hours as required by Section
17.47(a) of the Rules. Mr. Smith stated that he was aware that the
side lamps were inoperable but was unaware of the non-flashing
condition of the lights. He had no logs or records documenting his
observations or any failures in the lights. He stated that he last
observed the tower several days before the inspection.
III. DISCUSSION
4. Section 503(b) of the Communications Act of 1934, as amended, ("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
thereunder, 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.
5. 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.
6. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders, and attention signal
generating and receiving equipment are installed and operational so
that the monitoring and transmitting functions are available when the
station is in operation. On March 31, 2010, agents from the Kansas
City Office observed that station KANR's installed EAS equipment was
not operational when the station was in operation. Mr. Smith admitted
that an operational EAS encoder/decoder unit had not been available
since sometime between 2000 and 2006. Mr. Smith also admitted that
there was no documentation of the exact date the unit became
inoperative, and he was unable to produce any evidence that the EAS
unit had ever been operational or that required EAS weekly or monthly
tests had ever been sent. Thus, based on the evidence before us, we
find that Mr. Smith apparently willfully and repeatedly violated
Section 11.35(a) of the Rules by failing to maintain operational EAS
equipment while the station was in operation from at least 2006 until
March 31, 2010.
7. Section 17.47(a) of the Rules states that the owner of any antenna
structure that is registered with the Commission and has been assigned
lighting specifications "(1) [s]hall make an observation of the
antenna structure's lights at least once each 24 hours either visually
or by observing an automatic properly maintained indicator designed to
register any failure of such lights, to insure that all such lights
are functioning properly as required; or alternatively, (2) [s]hall
provide and properly maintain an automatic alarm system designed to
detect any failure of such lights and to provide indication of such
failure to the owner." Station KANR's antenna structure is 151 meters
above ground in height and must be painted and lit. At the time of
inspection, all three flashing beacons on the structure were either
not flashing or not lit and several side lamps were inoperable. Mr.
Smith was aware of the inoperable side lamps but was unaware of the
non-flashing or non-lit beacons. Mr. Smith stated that the last visual
tower light observation by any station personnel was made several days
prior to the inspection. The station maintains no operational
automated monitoring equipment. Therefore, based on the evidence
before us, we find that Mr. Smith apparently willfully and repeatedly
violated Section 17.47 of the Rules by failing to make a visual
observation of antenna structure lighting at least once each 24 hour
period on March 29 and March 30, 2010.
8. Section 17.50 of the Rules states that "[a]ntenna structures requiring
painting under this part shall be cleaned or repainted as often as
necessary to maintain good visibility." At the time of inspection,
the paint on antenna structure number 1033278 was severely faded with
bare metal exposed in several areas on the tower. Due to the condition
of the paint, the tower is no longer clearly visible. The paint was in
such a condition that the deterioration had to have occurred over more
than one day. Mr. Smith stated that the tower had not been painted
since 1996, that he personally maintained the tower site, and that he
was aware of the paint condition. Thus, based on the evidence before
us, we find that Mr. Smith apparently willfully and repeatedly
violated Section 17.50 of the Rules by failing to repaint the antenna
structure as necessary to maintain good visibility.
9. 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
the material" set forth in this section. The public inspection file
must be maintained at the main studio of the station, and must be
available for public inspection at any time during regular business
hours. Section 73.3526(e)(12) of the Rules requires commercial AM
and FM broadcast stations to place a list of programs that have
provided the station's most significant treatment of community issues
during the preceding three month period in the station's public
inspection file. The issues/programs list for each calendar quarter is
to be filed by the tenth day of the succeeding calendar quarter. On
March 31, 2010, during normal business hours, agents from the Kansas
City Office requested to inspect station KANR's public inspection file
at the station's main studio. The agents observed that the station's
public inspection file was missing issues/programs list after the
fourth quarter of 2008. Mr. Smith stated that no issues/programs lists
had been filed since the fourth quarter of 2008. Therefore, based on
the evidence before us, we find that Mr. Smith apparently willfully
and repeatedly violated Section 73.3526(e)(12) of the Rules by failing
to maintain all required issues/programs lists in the station's public
inspection file and apparently willfully violated Section 73.3526 of
the Rules by failing to make available a complete public inspection
file.
10. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for: (1) failure to
maintain operational EAS equipment is $8,000; (2) failure to conduct
required monitoring is $2,000; (3) failure to repaint the antenna
structure is $10,000; and (4) violation of public file rules 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. In
this regard, we note that this licensee has a history of not
maintaining operational EAS equipment at this station. Accordingly, we
will upwardly adjust the forfeiture for failure to maintain
operational EAS equipment to $9,000. Because station KANR's public
inspection file contained a portion of the items required, we find a
downward adjustment of the base forfeiture for the public file
violation to $4,000 is warranted. Thus, applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Daniel Smith is apparently liable for a
forfeiture in the amount of $25,000. We direct Mr. Smith to submit a
sworn statement within thirty days of release of this NAL describing
the specific action(s) taken to correct each of the cited violations
and preclude recurrence, and specifying when the corrective actions
were taken. We caution Mr. Smith that future violations of our rules
may subject him to more severe enforcement penalties.
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, Daniel D. Smith is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty-five thousand dollars ($25,000) for violations of Sections
11.35(a), 17.47, 17.50 and 73.3526 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, Daniel D. Smith SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
13. IT IS FURTHER ORDERED that, within thirty days of the release date of
this Notice of Apparent Liability for Forfeiture, Daniel D. Smith
SHALL SUBMIT a sworn statement as described in paragraph 10 to the
Kansas City Office listed below.
14. 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. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Mr. Smith shall also send electronic notification
on the date said payment is made to SCR-Response@fcc.gov.
15. 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,
South Central Region, Kansas City Office, 520 N.E. Colbern Rd., 2nd
Floor, Lees Summit, MO 64086 and must include the NAL/Acct. No.
referenced in the caption. The statement should also be emailed to
SCR-Response@fcc.gov.
16. 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.
17. 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 Daniel D. Smith at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director,
Kansas City Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 11.35(a), 17.47, 17.50, 73.3526.
The Federal Aviation Administration ("FAA") issued a Notice to Airmen on
March 31, 2010 regarding the antenna structure at Mr. Smith's request
approximately two hours after the end of the inspection.
47 C.F.R. S: 17.47(a).
Mr. Smith observed the tower on March 29, 2010 during the daytime when the
lights were not exhibited, so he was unable to assess whether the lights
were operating properly. Mr. Smith said that he observed the exhibited
lights on the tower before March 29, 2010, but he could not recall the
precise day.
47 U.S.C. S: 503(b).
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, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (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:S: 11.11, 11.41.
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(a).
Antenna structures must be painted and lighted when they exceed 60.96
meters in height above ground. See 47 C.F.R. S: 17.21.
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(b).
47 C.F.R. S: 73.3526(c).
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.
47 U.S.C. S: 503(b)(2)(E).
On April 16, 1997, the Commission issued a Notice of Violation ("NOV") to
Mr. Smith for several violations found during an April 9, 1997 inspection
of FM Broadcast station KANR, including failure to maintain operational
EAS equipment in violation of Section 11.35(a) of the Rules. Daniel D.
Smith, Notice of Violation (Compliance & Information Bureau, rel. April
16, 1997).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35(a),
17.47, 17.50, 73.3526.
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 10-2156
2
Federal Communications Commission DA 10-2156