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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No.: EB-11-TP-0018
Super W Media Group, Inc. ) NAL/Acct. No.: 201232700002
Licensee of Station WIPC AM 1280 kHz ) FRN: 0019751031
Lake Wales, Florida ) Facility ID No.: 59616
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: February 28, 2012 Released: February 28, 2012
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Super W Media Group, Inc. (Super W), licensee of Station
WIPC, in Lake Wales, Florida, apparently willfully and repeatedly
violated Section 73.1350(a) of the Commission's rules (Rules), by
failing to operate its station in accordance with the terms of its
station authorization. We conclude that Super W is apparently liable
for a monetary forfeiture in the amount of four thousand dollars
($4,000). We further direct Super W to submit a written statement,
signed under penalty of perjury, stating whether Station WIPC is now
in compliance with Section 73.1350(a) of the Rules.
II. BACKGROUND
2. Station WIPC is authorized to operate on 1280 kHz with a
non-directional antenna using 1000 watts during the day and a
directional antenna using 540 watts at night. On May 21 and June 15,
2011, in response to a complaint, agents from the Enforcement Bureau's
Tampa Office (Tampa Office) monitored the field strength of Station
WIPC's transmissions before and after sunset. On both days, the agent
observed no noticeable change in field strength.
3. On June 16, 2011, during regular business hours, agents from the Tampa
Office, accompanied by the station's owner/president, conducted an
inspection of Station WIPC's main studio and transmitter site in Lake
Wales, Florida. An agent confirmed that the station was operating with
full daytime power. The station's owner/president admitted that the
station's equipment, which automatically reduces power and changes the
antenna's directional pattern at night, malfunctioned about one or two
weeks before. He stated that he had been manually reducing power at
night, but claimed he forgot to do so the evening of June 15, 2011. He
did not say anything regarding changing the antenna's directional
pattern at night.
III. DISCUSSION
4. 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 monetary 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. Operation Inconsistent with Station Authorization
5. Section 73.1350(a) of the Rules states that licensees are "responsible
for maintaining and operating its broadcast station in a manner which
complies with . . . the terms of the station authorization." Station
WIPC is authorized to operate on 1280 kHz with a non-directional
antenna using 1000 watts during the day and a directional antenna
using 540 watts at night. On May 21 and June 15, 2011, agents from the
Tampa Office observed no significant change in signal strength for
Station WIPC's transmissions before and after sunset. If the station
had reduced power and antenna directional pattern, the agents estimate
the signal strength of Station WIPC's transmissions would have
decreased by approximately one-third, where the signal was measured
and observed. On June 16, 2011, Station WIPC's owner/president
admitted that the equipment, which automatically switches the station
to nighttime power and directional pattern, malfunctioned about one to
two weeks before the inspection. The owner/president stated that he
manually reduced power at night and forgot to do so on June 15, 2011.
Based on the evidence before us, we find that Super W apparently
willfully and repeatedly violated Section 73.1350(a) of the
Commission's rules by failing to change power/operating mode at night.
B. Proposed Forfeiture and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for exceeding power
limits is $4,000. 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 Super
W is apparently liable for a total forfeiture of $4,000.
7. We also direct Super W to submit a written statement signed under
penalty of perjury, pursuant to Section 1.16 of the Rules, by an
officer or director of Super W, stating the measures it has taken to
come into full compliance with Section 73.1350(a) of the Rules. This
statement must be provided to the Tampa Office at the address listed
in paragraph 12, below, within thirty (30) calendar days of the
release date of this NAL.
IV. ORDERING CLAUSES
8. 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, Super W Media Group,
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of four thousand dollars ($4,000) for violations of Section
73.1350(a) of the Commission's rules.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Super W Media Group, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. IT IS FURTHER ORDERED that Super W Media Group, Inc. SHALL SUBMIT a
statement as described in paragraph 7 to the Tampa Office within
thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order.
11. 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
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. 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. Super W Media Group,
Inc. shall send electronic notification on the date said payment is
made to SCR-Response@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, South
Central Region, Tampa Office, 4010 W Boy Scout Blvd, Suite 425, Tampa,
FL 33607, and include the NAL/Acct. number referenced in the caption.
Super W Media Group, Inc. also shall email the written response to
SCR-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 regular mail to Super W Media Group, Inc. at
630 Mountain Lake Cut-off Road, Lake Wales, FL 33859.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director,
Tampa Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 73.1350(a).
See File No. BZ-870629AA.
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).
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: 73.1350(a).
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.1350(a).
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-277
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Federal Communications Commission DA 12-277