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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

                                       2

   Federal Communications Commission DA 11-881