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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-CF-0110
)
JMK Communications Inc. NAL/Acct. No.: 201232340001
)
Licensee of Station WPWC(AM) FRN No: 0007309503
)
Dumfries, Virginia Facility ID: 25995
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 17, 2012 Released: July 18, 2012
By the District Director, Columbia Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that JMK Communications Inc. (JMK), licensee of AM Station
WPWC, in Dumfries, Virginia (Station), apparently willfully and
repeatedly violated Section 73.49 of the Commission's rules (Rules)
by failing to enclose the Station's antenna structures within
effective locked fences or other enclosures. We conclude that JMK is
apparently liable for a forfeiture in the amount of seven thousand
dollars ($7,000). We further direct JMK to submit, no later than
thirty (30) calendar days from the release date of this NAL, a written
statement signed under penalty of perjury stating that the Station is
now in compliance with Section 73.49 of the Rules.
II. BACKGROUND
2. On September 2, 2011, in response to a complaint, an agent from the
Enforcement Bureau's Columbia Office inspected the Station's
four-tower array in Dumfries, Virginia. All four antenna structures
have radio frequency potential at their base. The agent observed that
one of the antenna structures had no fencing at all around the base of
the structure, while the other three antenna structures had only
partial fencing around their bases, thereby allowing unrestricted
access to all the structures. The level of deterioration observed by
the agent indicated that the fences had been in that condition for a
significant period of time. The agent also observed that there was no
perimeter fence around the property where the antenna structures were
located.
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. 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. The term "repeated" means the commission or omission
of such act more than once or for more than one day.
A. Failure to Enclose the Antenna Structure Within an Effective Locked
Fence
4. The evidence in this case is sufficient to establish that JMK violated
Section 73.49 of the Rules. Section 73.49 of the Rules requires that
antenna structures having radio frequency potential at the base must
be enclosed within effective locked fences or other enclosures. On
September 2, 2011, agents from the Columbia Office observed that one
of the Station's antenna structures had no fencing and the other three
antenna structures had only partial fencing. Based on the degree of
deterioration, agents concluded that the fences had been in disrepair
for an extended period of time. Agents also did not observe a
perimeter fence. Accordingly, based on the evidence before us, we find
that JMK apparently willfully and repeatedly violated Section 73.49 of
the Rules by failing to enclose the Station's antenna structures
within effective locked fences or other enclosures.
A. Proposed Forfeiture and Reporting Requirement
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failure to maintain
an effective AM tower fence is $7,000. 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, any 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 JMK is apparently liable for a forfeiture in the amount of
$7,000.
6. We direct JMK to submit a statement, pursuant to Section 1.16 of the
Rules signed under penalty of perjury by an officer or director of
JMK stating that it is now in compliance with Section 73.49 of the
Rules.
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(b),
0.311, 0.314 and 1.80 of the Commission's rules, JMK Communications
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of seven thousand dollars ($7,000) for violations of
Section 73.49 of the Rules.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules within thirty (30) days of the release date of this
Notice of Apparent Liability for Forfeiture and Order, JMK
Communications 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 JMK Communications Inc. SHALL SUBMIT a
written statement as described in paragraph 6 within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast Region,
Columbia Office, 9200 Farm House Lane, Columbia, Maryland 21046 and
include the NAL/Acct. No. referenced in the caption. JMK
Communications, Inc. shall also e-mail the written statement to
NER-Response@fcc.gov.
10. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. JMK shall also send electronic notification
on the date said payment is made to NER-Response@fcc.gov.
Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID)
and enter the letters "FORF" in block number 24A (payment type
code). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
11. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
12. 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, Northeast
Region, Columbia Office, 9200 Farm House Lane, Columbia, Maryland
21046 and include the NAL/Acct. No. referenced in the caption. JMK
Communications Inc. also shall e-mail the written response to
NER-Response@fcc.gov.
13. 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.
14. 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 first class mail, to JMK Communications Inc.,
4525 Wilshire Boulevard, Los Angeles, California 90010.
FEDERAL COMMUNICATIONS COMMISSION
Salomon Satche
District Director
Columbia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 73.49.
At the time of the inspection, the antenna structure registration numbers
were not posted at the base of the structures. The agent later determined
that the following registration numbers are associated with the Station's
antenna structures: 1022267, 1022268, 1022269, and 1022270.
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), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S: 73.49.
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).
See, e.g., Patrick H. Sickafus, Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 6818 (Enf. Bur. 2011) (proposing $7,000 base
forfeiture for failure to maintain effective locked fences surrounding two
antenna structures in a three-tower array) (forfeiture paid).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314, 1.80,
73.49.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 12-1149
Federal Communications Commission DA 12-1149