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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
John F. Warmath ) File Number: EB-10-AT-0124
Licensee of Station WIRJ(AM) ) NAL/Acct. No.: 201132480002
Humboldt, TN ) FRN: 0014425979
Facility ID # 15796 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: May 17, 2011 Released: May 17, 2011
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that John F. Warmath ("Mr. Warmath"), licensee of station
WIRJ(AM), Humboldt, TN, apparently willfully and repeatedly violated
sections 73.49, 11.35, and 73.3526 of the Commission's Rules ("Rules")
by failing to maintain: (1) an enclosed fence around the base of the
station's AM antenna; (2) Emergency Alert System ("EAS") equipment;
and (3) a public inspection file. We conclude that Mr. Warmath is
apparently liable for a forfeiture in the amount of twenty-five
thousand dollars ($25,000).
II. BACKGROUND
2. On October 7, 2010, in response to a complaint, agents of the
Enforcement Bureau's Atlanta Office ("Atlanta Office"), accompanied by
the station's acting chief operator, inspected radio station WIRJ(AM)
in Humboldt, TN. The agents found that there was no EAS equipment
installed at the station. Both Mr. Warmath, via telephone, and the
acting chief operator admitted that the EAS equipment had been missing
for more than 60 days. The agents also observed that there was no
fence surrounding the base of the station's antenna structure and no
perimeter property fence. Neither Mr. Warmath nor the acting chief
operator knew when the base fence was removed, but the acting chief
operator estimated that the fence had been removed about a year prior
to the inspection. In addition, the agents found that Station WIRJ(AM)
had no public inspection file. Mr. Warmath and the acting chief
operator stated that they had not filed any documents in the public
inspection file in over two years, and that they were unaware of any
other person maintaining a public inspection file for Station WIRJ(AM)
during that period.
III. DISCUSSION
3. 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.
4. Section 73.49 states that "[a]ntenna towers having radio frequency
potential at the base ... must be enclosed within effective locked
fences or other enclosures." On October 7, 2010, Station WIRJ(AM)'s
antenna structure had radio frequency potential at the base. On that
date, agents from the Atlanta Office observed that there was no fence
surrounding the base of the antenna tower or the perimeter property
for Station WIRJ(AM). Although unaware of when the fence was removed,
Mr. Warmath and the station's acting chief operator admitted that the
fence had been missing for more than one day. Thus, based on the
evidence before us, we find that Mr. Warmath apparently willfully and
repeatedly violated section 73.49 of the Rules by failing to maintain
an AM antenna base fence.
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 during
the times the station is in operation. On October 7, 2010, agents from
the Atlanta Office observed that Station WIRJ(AM) had no EAS
equipment. Mr. Warmath and the acting chief operator admitted that the
equipment had been missing for more than 60 days. Accordingly, based
on the evidence before us, we find that Mr. Warmath apparently
willfully and repeatedly violated section 11.35 of the Rules by
failing to install EAS equipment.
7. Section 73.3526(a)(2) of the Rules states that, "Every permittee or
licensee of an AM, FM, TV or class A TV station in the commercial
broadcast services shall maintain a public inspection file containing
the material" set forth in that section. Section 73.3526(b) of the
Rules requires the public inspection file be maintained at the
station's main studio, and section 73.3526(c)(1) of the Rules requires
the file be available for public inspection at any time during regular
business hours. On October 7, 2010, in response to a request to
inspect the public inspection file during regular business hours,
Station WIRJ(AM) was unable to produce a public inspection file or any
of its required contents. Mr. Warmath admitted that no filings had
been made to the file for approximately two years. Based on the
evidence before us, we find that Mr. Warmath apparently willfully
violated section 73.3526 of the Rules by failing to make available a
public inspection file and apparently willfully and repeatedly
violated section 73.3526 of the Rules by failing to maintain a public
inspection file for Station WIRJ(AM).
8. Pursuant to the Forfeiture Policy Statement and section 1.80 of the
Rules, the base forfeiture amount for AM tower fencing violations is
$7,000, for EAS equipment that is not installed or operational is
$8,000, and for violation of the 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. Applying the Forfeiture Policy
Statement, section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Mr. Warmath is apparently liable for a
total forfeiture of $25,000, consisting of the following elements:
$7,000 for failure to maintain an AM antenna base fence, $8,000 for
failure to install EAS equipment, and $10,000 for failure to maintain
and make available a complete public inspection file.
9. We direct Mr. Warmath to submit a statement signed under penalty of
perjury that (1) Station WIRJ(AM) currently has installed operational
EAS equipment; (2) Station WIRJ(AM) has a complete public inspection
file in its main studio; and (3) there is an effective locked fence
around Station WIRJ(AM)'s antenna structure. If Station WIRJ(AM) has
not come into compliance with any of the above requirements, Mr.
Warmath shall submit an explanation for the delay and a timetable for
when compliance will be achieved. This statement must be provided to
the Atlanta Office at the address listed in paragraph 14 within
fifteen days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. We caution Mr. Warmath that licensees are
expected to comply with the Rules and further violations may result in
additional enforcement action.
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, 0.204,
0.311, 0.314 and 1.80 of the Commission's Rules, John F. Warmath is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for violations of
sections 73.49, 11.35, and 73.3526 of the Rules.
11. 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 and Order, John F. Warmath
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
12. IT IS FURTHER ORDERED that John F. Warmath SHALL SUBMIT a statement as
described in paragraph 9 to the Atlanta Office within fifteen days of
the release date of this Notice of Apparent Liability for Forfeiture
and Order.
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. 20554.8 If you have questions regarding payment
matters, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made, Mr.
Warmath will send electronic notification on the date said payment is
made to SCR-Response@fcc.gov.
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,
South Central Region, Atlanta Office, 3575 Koger Blvd., Suite 320,
Duluth, GA 30096 and must include the NAL/Acct. No. referenced in the
caption. The statement should also be mailed to SCR-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 and Order shall be sent by Certified Mail, Return
Receipt Requested, and regular mail, to John F. Warmath at 314 North
22nd Street, Humboldt, TN 38343.
FEDERAL COMMUNICATIONS COMMISSION
Douglas G. Miller
District Director
Atlanta Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.49, 73.3526, 11.35
A contract engineer for the station later estimated that the EAS had been
removed about a year prior to the inspection, because it had been damaged
by lightning.
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: 73.49.
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).
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)(1).
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).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.49, 11.35, 73.3526.
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-881
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Federal Communications Commission DA 11-881