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
)
)
Seventh-Day Adventist Community
Health Serv. of Greater NY )
File No. EB-08-NY-0146
Licensee of Station W32DF )
NAL/Acct. No. 200932380005
Hempstead, New York )
FRN: 0011503620
Facility ID # 155 )
)
)
FORFEITURE ORDER
Adopted: February 18, 2010 Released: February 22, 2010
By the Regional Director, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of fifteen thousand two hundred dollars ($15,200) to
Seventh-Day Adventist Community Health Serv. of Greater NY ("SDACH"),
licensee of Low-Power Television (LPTV) station W32DF in Hempstead,
New York, for willfully and repeatedly violating Sections 1.903(a),
1.903(b), and 11.35(a) of the Commission's Rules ("Rules) by operating
with an unauthorized antenna model and orientation, operating from an
unauthorized location, and failing to install required Emergency Alert
System (EAS) equipment. In this Order, we consider SDACH's arguments
that the forfeiture amount for operation at an unauthorized location
should be cancelled or reduced because it was the result of an
inadvertent error and that the forfeiture amounts for the other
violations should be cancelled or reduced in light of the SDACH's
history of compliance with the Commission's Rules.
II. BACKGROUND
2. On April 9, 2008, The FCC's Enforcement Bureau received a complaint
from a licensed New York area broadcaster alleging that Station W32DF
was operating with an unauthorized antenna model and orientation,
resulting in an unauthorized radiation pattern which was causing
harmful interference to its station. The complaint was referred to the
FCC's New York Office for further investigation.
3. When the agents inspected the station on April 24, 2008, SDACH was
authorized by its license, File No. BLTTL-20080201BPD, to operate LPTV
station W32DF, Hempstead, New York, on channel 32 located at a
transmitter site in Hicksville, New York. Specifically, Station
W32DF's construction permit, File No. BPTTL-20040910AAX (expired), and
the then-current station license to cover the construction permit,
authorized operation at antenna coordinates 40DEG 45' 27" north
latitude and 73DEG 32' 58" west longitude, with a Micro Communications
Inc. (MCI) Model 955314 directional antenna and major lobe directions
of 40DEG and 130DEG, consistent with SDACH's proposal in its
underlying application for construction permit. W32DF's application
for construction permit included a signed Engineering Statement
proposing use of the model 955314 antenna, and a map of the station's
predicted service contour, with major lobe directions at 40DEG and
130DEG, and a general pattern direction facing easterly at 85DEG. The
contour overlap and interference studies included in the application
were based on this proposed pattern. On its application for broadcast
station license to cover the construction permit, File No.
BLTTL-20080201BPD, filed February 1, 2008, SDACH certified in Section
II that "apart from changes already reported, no cause or circumstance
has arisen since the grant of the underlying construction permit which
would result in any statement or representation contained in the
construction permit application to be now incorrect." SDACH certified
in Section III and Exhibit 7 of the license application that W32DF was
constructed as authorized in the underlying construction permit except
for a change of ERP from 20 kW to 3 kW. SDACH did not report any
changes in the antenna model or orientation.
4. On April 24, 2008, agents from the Commission's New York Office
conducted an inspection of LPTV station W32DF's antenna and
transmitter site located at 34 Charlotte Ave, Hicksville, New York
11801, which is approximately 700 feet from the station's authorized
location. The station was observed to be broadcasting on television
channel 32 from a single-panel directional antenna mounted atop a
34-meter tower at coordinates 40DEG 45' 29.9" north latitude and
073DEG 32' 49.2" west longitude, approximately 0.225 km (737 ft.)
east-northeast of the authorized location. The agents observed that
there was no EAS decoder installed as required for a LPTV station. The
agents determined that the panel antenna was oriented at approximately
230DEG relative to true North. The agents then took calibrated field
strength measurements of the station's signal at various points around
the W32DF transmitter, which indicated extremely low readings in all
eastern directions, and the strongest readings to the southwest. By
far, the strongest signals measured were at 217DEG and 246DEG,
confirming an unauthorized radiation pattern consisting of a single
lobe direction of approximately 230DEG.
5. On May 1, 2008, an agent spoke by telephone to SDACH's consulting
engineer for W32DF, and advised him that the W32DF antenna was pointed
in the wrong direction and was the wrong type. The engineer stated
that the station did a recent installation and was hoping to get its
digital channel 20 on the air soon. He stated that the licensee did
not obtain the antenna authorized in its construction permit and that
the actual antenna as installed is a single panel antenna oriented at
approximately 220DEG to 230DEG as is specified in the station's
digital construction permit. He stated that he would have the station
turned off until he could file a change with the FCC for antenna type
and orientation that would produce the allowable contour and that he
would then turn the antenna to the authorized direction.
6. Also on May 1, 2008, the agent spoke by telephone to SDACH's director,
who stated that he was also the W32DF station manager. The agent
advised him of the interference complaint, the violations observed for
the wrong antenna type and orientation. The director stated that he
and the consulting engineer were both at the transmitter site
recently, where the engineer directed the installation of a new
transmitter and antenna by an antenna installation company. The agent
requested that the director fax to the New York Office all available
information regarding the exact model and directional orientation of
the antenna, and when and who installed it.
7. On May 5, 2008, the agent again spoke with SDACH's director, who
stated that the station was still on the air, and would be shut down
later in the day. The agent advised him that the antenna site is over
700 feet from the authorized site, and requires application to the FCC
to change the license to the correct coordinates. In response to
questions, the director also confirmed that W32DF did not have any EAS
equipment installed.
8. The New York Office received a fax from the director on SDACH
letterhead which included the specification sheet for the antenna
installed (SIRA model UTV-01/E UHF Panel Antenna), an estimated bill
for the antenna and an Elettronica transmitter, and a copy of the
W32DF station license. The specifications for the UTV-01/E antenna
show that it is a single panel directional antenna which produces a
narrow single lobe radiation pattern. The director also included in
the fax contact information for the antenna installation company.
9. On April 22, 2009, the New York Field Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $19,000 to
SDACH for operating with an unauthorized antenna model and
orientation, operating from an unauthorized location, and failing to
install required EAS equipment. In its response, SDACH does not
dispute the findings in the NAL, but requests that we cancel or reduce
the proposed forfeiture amount for operation at an unauthorized
location because it relied on the coordinates provided in its lease
with the tower owner. In addition, SDACH requests that we cancel or
reduce the proposed forfeiture in light of SDACH's history of
compliance with the Commission's Rules.
III. DISCUSSION
10. The proposed forfeiture amount 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 ("Forfeiture
Policy Statement"). In examining SDACH'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. We have considered SDACH's response to the NAL in light of
these statutory factors and have found that a reduction in the
forfeiture to $15,200 is warranted for the reasons discussed below.
11. Section 1.903(a) of the Rules provides that stations in the Wireless
Radio Service 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 1.903(b) provides
that the holding of an authorization does not create any rights beyond
the terms, conditions and period specified in the authorization.
SDACH's station license authorized SDACH to operate station W32DF at
antenna coordinates 40DEG 45' 27" north latitude and 73DEG 32' 58"
west longitude. At the time of the inspection on April 24, 2008,
Commission agents determined that the station was broadcasting from an
antenna that was not located at the authorized coordinates.
12. In its response to the NAL, SDACH does not dispute that the
coordinates were inaccurate, but explains that the coordinates
provided to the Commission in its applications were based on the
coordinates in its lease with the owner of the building where the
antenna was located. SDACH claims that the forfeiture therefore should
be cancelled because the error was inadvertent and did not cause any
harm. We disagree. Applicants and licensees are required to provide
accurate information to the Commission at all times. The construction
permit and license applications (FCC Forms 347 and 346) submitted by
SDACH specifically state in Section III (Engineering) that the
applicant must "[e]nsure that the specifications below are accurate."
The question requiring the applicant to provide the coordinates for
the antenna structure further specifies that the coordinates must be
provided using NAD27 (North American Datum 1927). SDACH had an
obligation to verify the accuracy of the coordinates it provided on
its application and it was not enough to rely on the coordinates in
the lease with the building owner. Moreover, as the Commission
previously has stated, "inadvertence...is at best, ignorance of the
law, which the Commission does not consider a mitigating
circumstance." Similarly, the absence of any harm from a rule
violation is not a mitigating factor.
13. SDACH does not take issue with regard to the other violations found,
but asks that we consider reducing the forfeiture based on its overall
record of compliance with the Commission's Rules. We have reviewed our
records and find no other violations against the licensee. Under
similar circumstances, we have reduced proposed forfeitures, and find
that doing so in this case is appropriate. Consequently, we reduce
SDACH's s forfeiture amount from $19,000 to $15,200.
14. We have examined the 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 conclude that SDACH willfully
and repeatedly violated Sections 1.903(a), 1.903(b), and 11.35(a) of
the Rules. Considering the entire record and the factors listed above,
we find that reduction of the proposed forfeiture to $15,200 is
warranted.
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Seventh-Day Adventist
Community Health Serv. of Greater NY, IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $15,200 for willfully and repeatedly
violating Sections 1.903(a), 1.903(b), and 11.35(a).
16. 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.
Seventh-Day Adventist Community Health Serv. of Greater NY shall also
send electronic notification on the date said payment is made to
NER-Response@fcc.gov
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Seventh-Day
Adventist Community Health Serv. of Greater NY at its address of
record and to counsel for SDACH at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
47 C.F.R. S:S:1.903(a), 1.903(b), 11.35(a).
According to specifications, the MCI Model 955314 has 4 "bays" or vertical
levels, with each "bay" consisting of two panel antennas, oriented outward
at 90DEG relative to each other. This produces two relatively narrow
overlapping major lobe directions 90DEG apart, resulting in a "narrow
cardioid" radiation pattern with a general pattern direction at 45DEG. The
model 955314 is a standard antenna, antenna ID 20059, found in the FCC's
CDBS Public Access Antenna Database. The standard radiation pattern, or
Relative Field Polar Plot, for the model 955314 shows the major lobe
directions at 0DEG and 90DEG. W32DF's application for construction permit
specifies use of an MCI 955314 antenna with a 40DEG antenna rotation,
resulting in major lobe directions at 40DEG and 130DEG, with a general
pattern direction facing easterly at 85DEG.
The Construction Permit and Station License were originally issued with a
typographical error, stating the major lobe directions as 40DEG and
230DEG. This is inconsistent with the construction permit application and,
in fact, is not possible. With lobes at 90DEG apart for the MCI model
955314 and a 40DEG rotation, the resulting major lobe directions must be
at 40DEG and 130DEG. The error was corrected by Media Bureau's Video
Division on June 26, 2008, and corrected license was mailed to SDACH.
SDACH has a construction permit to operate a digital low power TV station
on Ch. 20 in Hempstead, NY (W20CQ-D, Facility ID # 168738).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932380005
(Enf. Bur., New York Office, rel. April 22, 2009).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
Intelsat North America LLC, 21 FCCR 9246 (EB 2006).
See Emery Telephone, Notice of Apparent Liability for Forfeiture, 13 FCC
Rcd 23854, 23859 P: 12 (1998), recon. dismissed in part and denied in
part, Memorandum Opinion and Order, 15 FCC Rcd 7181 (1999), citing
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). We also note
that we are not persuaded by SDACH's claim that the forfeiture should be
reduced because the inaccuracy was de minimis. It is indisputable that the
coordinates provided to the Commission were inaccurate. Our rules require
that applicants and licensees provide accurate information, without
exception, and failure to do so constitutes a violation our rules.
See Liberty Cable Co., Memorandum Opinion and Order, 16 FCC Rcd 16105
(2001); Pacific Western Broadcasters, Inc., Memorandum Opinion and Order,
50 FCC 2d 819 (1975); AGM-Nevada, LLC, Forfeiture Order, 18 FCC Rcd 1476
(Enf. Bur. 2003); Bureau D'Electronique Appliquee, Inc., Forfeiture Order,
20 FCC Rcd 17893 (SED Enf. Bur. 2005); Western Slope Communications, LLC,
Forfeiture Order, 23 FCC Rcd 8384 (WR Enf. Bur. 2008).
See e.g., Cayuga County Community College, Forfeiture Order, 2009 WL
1856467 (EB 2009).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 1.903(a),
1.903(b), 11.35(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-269
1
2
Federal Communications Commission DA 10-269