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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File No. EB-08-NF-0101
CRS Radio Holding Inc. )
Licensee of Radio Station WFBX(AM) ) 201132640002
Spring Lake, North Carolina ) FRN 0004202685
Facility ID: 19875 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: June 1, 2011 Released: June 2, 2011
By Resident Agent, Norfolk Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that CRS Radio Holding Inc. ("CRS"), licensee of Station WFBX
(AM), in Spring Lake North Carolina, apparently willfully violated
section 11.35 of the Commission's rules ("Rules") by failing to ensure
that emergency alert system ("EAS") equipment was operational. We
conclude that CRS is apparently liable for a forfeiture in the amount
of eight thousand dollars ($8,000) and direct the company to submit a
statement signed under penalty of perjury by an officer or director
stating that Station WFBX(AM) currently has operational EAS equipment
installed as required pursuant to section 11.35.
2. On October 28, 2008, in response to a complaint that the station had
been without operational EAS equipment for more than a year, an agent
from the Enforcement Bureau's Norfolk Office ("Norfolk Office")
inspected Station WFBX's main studio in Fayetteville, North Carolina.
Station WFBX's main studio was co-located with the main studio for
co-owned Station WFAY. The agent observed that Station WFBX did not
have any EAS equipment located in the room which contained the
station's control equipment. Moreover, the EAS equipment for Station
WFAY was not operational, because it was turned off and was not
connected to an antenna. None of the staff at Station WFBX could
produce any EAS logs or other evidence that any weekly or monthly EAS
tests had been sent or received. Staff members for Station WFAY and
Station WFBX stated that both stations had been without EAS equipment
since the stations relocated to the current main studio. Stations WFBX
and WFAY notified the Commission in letters dated May 14, 2008 that
their studio locations had changed to the current main studio in
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. 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 section
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.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
4. Section 11.35 of the Rules states that "Broadcast stations... are
responsible for ensuring that EAS Encoders, EAS Decoders and Attention
Signal generating and receiving equipment used as part of the EAS are
installed so that the monitoring and transmitting functions are
available during the times the stations and systems are in
operation..." On October 28, 2008, an agent from the Norfolk Office
observed that Station WFBX did not have any operational EAS equipment
installed when the station was in operation. The station also did not
have any EAS logs indicating when EAS equipment was installed or
removed or any records that any EAS tests had been sent or received.
Staff members from Stations WFAY and WFBX said that both stations had
been without operational EAS equipment since the studios relocated to
their current location. Station WFBX relocated to the current main
studio before May 14, 2008. Because CRS consciously operated Station
WFBX without EAS equipment for more than one day, we find the apparent
violations to be willful and repeated. Based on the evidence before
us, we find that CRS apparently willfully and repeatedly violated
section 11.35 of the Rules by failing to install operational EAS
equipment while the station was in operation.
5. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for EAS equipment not
installed or not operational is $8,000. 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 CRS is apparently liable for a total forfeiture of $8,000.
6. We direct CRS Radio to submit a statement signed under penalty of
perjury by an officer or director of CRS Radio stating that it
currently has operational EAS equipment installed for Station WFBX(AM)
as required pursuant to section 11.35 of the Rules. This statement
must be provided to the Norfolk Office at the address listed in
paragraph 11 within thirty days of the release date of this Notice of
Apparent Liability for Forfeiture and Order.
IV. ORDERING CLAUSES
7. 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, CRS Radio Holding
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of eight thousand dollars ($8,000) for violation of section
11.35 of the Rules.
8. 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, CRS Radio
Holding Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. IT IS FURTHER ORDERED that, within fifteen days of the release date of
this Notice of Apparent Liability for Forfeiture and Order, CRS Radio
Holding Inc. SHALL SUBMIT a sworn statement as described in paragraph
6 to the Norfolk Office listed below.
10. 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
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made, CRS
will send electronic notification on the date said payment is made to
11. 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. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Norfolk Office; 1457 Mount Pleasant Road Suite 113;
Chesapeake VA 23322 and include the NAL/Acct. No. referenced in the
caption. CRS also shall email the written response to
12. 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.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to CRS Radio Holding Inc C/O
Putbrese Hunsaker & Trent, P.C.; 200 South Church Street; Woodstock,
FEDERAL COMMUNICATIONS COMMISSION
Joseph P Husnay, Resident Agent
South Central Region
At the time of the inspection, WCIE-AM, INC. was listed as the licensee
for Station WFBX. See file number BL-20040831ACQ. After the inspection,
the name of the licensee for Station WFBX was changed to CRS Radio Holding
Inc. The change was administrative; ownership of Station WFBX did not
change. CRS Radio Holding Inc. is currently listed as the licensee for
Station WFBX. See file number BL-20040831ACQ.
47 C.F.R. S: 11.35.
See 47 C.F.R. S: 11.35 (requiring EAS participants to log when EAS
equipment is removed for repair and restored to service and to keep
records when EAS tests are failed to be received).
See Letters from Todd A. Steiner, Counsel for CRS Radio Holding Inc., to
Marlene H. Dortch, Secretary, Federal Communications Commission, dated May
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 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., Application for Review of 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).
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: 11.35.
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,
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11-978
Federal Communications Commission DA 11-978