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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 )
)
)
FORFEITURE ORDER
Adopted: May 4, 2011 Released: May 5, 2011
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 eleven thousand five hundred dollars ($11,500) to Daniel
D. Smith, licensee of Station KANR and owner of antenna structure
number 1033278 in Belle Plaine, Kansas ("Mr. Smith"), for willful and
repeated violation of sections 11.35(a), 17.47, 17.50, and 73.3526 of
the Commission's Rules ("Rules"). The noted violations involve Mr.
Smith's failure 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.
II. BACKGROUND
2. As discussed in detail in the Notice of Apparent Liability for
Forfeiture ("NAL") in this case, on March 31, 2010, during an
inspection of the main studio for Station KANR and antenna structure
number 1033278, agents from the Enforcement Bureau's Kansas City
Office ("Kansas City Office") observed that: (1) Station KANR's EAS
equipment was inoperable; (2) the station's public inspection file was
missing quarterly issues/programs lists after the fourth quarter of
2008; and (3) the paint on Station KANR's tower was severely faded and
chipped in many places. During the inspection, Mr. Smith admitted
that: (1) an operational EAS encoder/decoder unit had not been
operational since sometime between 2000 and 2006; (2) no
issues/programs lists had been filed in the public inspection file
since the fourth quarter of 2008; (3) the station did not have any
automated equipment to monitor the structure's lighting; (4) station
personnel were not visually monitoring the lighting on the structure
every 24 hours; and (4) Station KANR's tower was last painted in 1996.
Mr. Smith also stated that he had last observed the tower several days
before the inspection. Mr. Smith had no logs or records documenting
his observations or any failures in the lights.
3. In view of the record evidence, including Mr. Smith's admissions, the
NAL proposed a forfeiture of $25,000 against the licensee for
violation of sections 11.35(a), 17.47, 17.50, and 73.3526 of the
Rules. Mr. Smith submitted responses to the NAL requesting reduction
or cancellation of the proposed forfeiture based on his inability to
pay the forfeiture, his prompt actions to remedy the violations, and
his remorse.
III. DISCUSSION
4. 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 Forfeiture Policy
Statement. In examining Mr. Smith'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 have considered Mr. Smith's response
in light of these statutory factors and reduce the proposed forfeiture
to $11,500, based on his documented inability to pay.
5. Section 312(f)(1) of the Act defines willful as "the conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to section
312(f)(1) of the Act clarifies that this definition of willful applies
to both sections 312 and 503(b) of the Act and the Commission has so
interpreted the term in the section 503(b) context. The Commission may
also assess a forfeiture for violations that are merely repeated, and
not willful. "Repeated" means that the act was committed or omitted
more than once, or lasts more than one day.
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(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 EAS monitoring and transmitting functions are available
during the times a station is in operation. Mr. Smith does not deny
any of the facts stated in the NAL concerning the station's EAS
equipment and admits that the station's EAS equipment was not
functioning from at least 2006 through the time of the March 31, 2010
inspection. Thus, based on the evidence before us, we find that Mr.
Smith willfully and repeatedly violated section 11.35(a) of the Rules
by failing to maintain operational EAS equipment.
8. 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. Mr. Smith admits
that the station's automatic remote control light monitoring system
was out for repair and that the station failed to make observations of
its antenna structure once every 24 hours. Therefore, based on the
evidence before us, we find that Mr. Smith 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.
9. 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." Although Mr. Smith admits
that he last painted Station KANR's tower in 1996, he asserts that
only five feet on one of three sides of the 20 foot base was unpainted
at the time of the inspection, that the paint on the remainder of the
tower was clearly visible, and that the condition of the paint "does
not rise to the level of negligence to be actionable, and in the
alternative, certainly does not merit a fine of $10,000." However, he
also states that he does "not deny the paint on my tower has faded to
the point that in the interest of safety should be repainted." Agents'
notes and pictures from the March 31, 2010 inspection demonstrate,
however, that the tower's paint was severely faded and that bare metal
was showing in many places on the structure. Thus, based on the
evidence before us, we find that Mr. Smith willfully and repeatedly
violated section 17.50 of the Rules by failing to repaint the antenna
structure as necessary to maintain good visibility.
10. 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 that 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 and in response to a
request for inspection, agents from the Kansas City Office observed
that the station's public inspection file was missing all
issues/programs lists after the fourth quarter of 2008. Mr. Smith
asserts that the station aired public affairs programming and that the
items of importance are marked on his desk calendar, but admits that
the station's public inspection file was missing issues/programs lists
after the fourth quarter of 2008. Therefore, based on the evidence
before us, we find that Mr. Smith 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 willfully violated section 73.3526 of the Rules by failing to make
available a complete public inspection file.
11. In the NAL Response, Mr. Smith states that, following the inspection,
he promptly corrected the EAS and public inspection file violations,
installed a working automatic light monitoring system, and hired a
painting contractor to repaint the tower as soon as possible, and that
he will "never again place myself in such an unfortunate and
embarrassing situation." 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. We therefore conclude
that a reduction or cancellation of the forfeiture is unwarranted in
this case.
12. Finally, Mr. Smith asserts that the forfeiture would pose a financial
hardship and requests reduction or cancellation of the forfeiture on
this basis. 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 Mr. Smith's submitted documentation and conclude that a
reduction of the forfeiture based on the licensee's inability to pay
is warranted. Thus, we conclude that Mr. Smith is liable for a
forfeiture in the amount of $11,500, an amount equal to 7.7 percent of
Station KANR's average gross revenues.
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, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's Rules, Daniel D.
Smith IS LIABLE FOR A MONETARY FORFEITURE in the amount of eleven
thousand five hundred dollars ($11,500) for violations of section
11.35(a), 17.47, 17.50, and 73.3526 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 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.
Mr. Smith shall 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 both
First Class and Certified Mail Return Receipt Requested to Daniel D.
Smith at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 11.35(a), 17.47, 17.50, 73.3526.
Daniel D. Smith, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
15874 (Enf. Bur., 2010).
During the inspection, Mr. Smith stated that he had 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 sometime
before March 29, 2010, but he could not recall the precise day. See NAL at
note 4.
See Letter from Daniel D. Smith, licensee of Station KANR, to Kansas City
Office, Enforcement Bureau, dated December 10, 2010 ("NAL Response");
Letter from Daniel D. Smith, licensee of Station KANR, to Kansas City
Office, Enforcement Bureau, dated December 10, 2010 ("Request for
Reduction").
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), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 312(f)(1).
H.R. Conf. Rep. No. 97-765, at 51 (1982) ("This provision [inserted in
section 312] defines the terms `willful' and `repeated' for purposes of
section 312, and for any other relevant section of the act (e.g., section
503) . . . . As defined[,] . . . `willful' means that the licensee knew
that he was doing the act in question, regardless of whether there was an
intent to violate the law. `Repeated' means more than once, or where the
act is continuous, for more than one day. Whether an act is considered to
be `continuous' would depend upon the circumstances in each case. The
definitions are intended primarily to clarify the language in sections 312
and 503, and are consistent with the Commission's application of those
terms . . . .").
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recon. denied, 7 FCC Rcd 3454 (1992)
("Southern California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
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).
See NAL at 15874-15875.
NAL Response at 1.
47 C.F.R. S: 17.47(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.
NAL Response at 1-2.
47 C.F.R. S: 17.50.
NAL Response at 2-3.
Id.
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).
47 C.F.R S: 73.3526(e)(12).
NAL Response at 1.
NAL Response at 1-3.
Request for Reduction at 1.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994)
(finding attempts to comply with licensing requirements following initial
violation are expected and do not warrant reduction or cancellation of
forfeiture); Rama Communications, Inc., Memorandum Opinion and Order, 24
FCC Rcd 4981 (Enf. Bur. 2009) (finding post-inspection correction of tower
painting, tower fencing, public inspection file and overpower operation
violations is expected and does not warrant reduction or cancellation of
forfeiture); Bethune-Cookman College, Inc.. Forfeiture Order, 24 FCC Rcd
4513 (South Central Region 2009) (finding installation of required EAS
decoder after an inspection is expected and does not warrant reduction or
cancellation of forfeiture); International Broadcasting Corporation, Order
on Review 25 FCC Rcd 1538 (2010) (finding post-inspection attempts to
paint and register antenna structure are expected and do not warrant
reduction or cancellation of forfeiture).
Request for Reduction at 1-2.
See PJB Communications of Virginia, Inc., Forfeiture Order, 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., Forfeiture Order, 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, Forfeiture
Order, 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, 0.204, 0.311, 0.314,
1.80(f)(4), 11.35(a), 17.47, 17.50, 73.3526.
47 U.S.C. S: 504(a).
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Federal Communications Commission DA 11-824
2
Federal Communications Commission DA 11-824