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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-11-AT-0083
Walter M. Czura )
NAL/Acct. No.: 201232480002
Licensee of Station WNFO )
FRN No: 0009352337
Sun City Hilton Head, SC )
Facility ID # 70793
Facility ID # 70793 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: March 8, 2012 Released: March 8, 2012
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 Walter M. Czura, licensee of Station WNFO, Sun City
Hilton Head, South Carolina, apparently willfully and repeatedly
violated Sections 73.49, 11.35, and 73.3526 of the Commission's rules
(Rules) by failing to: (1) maintain an effective locked fence around
the base of an antenna tower; (2) install operational Emergency Alert
System (EAS) equipment; and (3) maintain and make available a complete
public inspection file. We conclude that Mr. Czura is apparently
liable for a forfeiture in the amount of twenty five thousand dollars
($25,000). In addition, we direct Mr. Czura to submit, no later than
thirty (30) calendar days from the date of this NAL, a statement
signed under penalty of perjury that Station WNFO's base fence has
been repaired, its EAS equipment is operational, and its public
inspection file is complete.
II. BACKGROUND
2. On July 27, 2011, in response to a complaint, agents from the
Enforcement Bureau's Atlanta Office (Atlanta Office) inspected the
antenna tower at the transmitter site of Station WNFO(AM), while the
station was in operation. The agents observed that a portion of the
fence surrounding the base of the antenna tower was collapsed,
allowing ready access to the base of the tower. Based on the condition
of the fence, the agents concluded that the fence had been in
disrepair for more than one day. The agents also observed that there
was no perimeter fence around the property.
3. That same day, the agents from the Atlanta Office continued the
inspection at Station WNFO's main studio. The only people present at
the main studio were representatives of another entity, who operated
Station WNFO(AM) pursuant to a local marketing agreement (LMA). The
agents observed that there were no EAS equipment or any EAS logs
located at the main studio. The LMA operator, identified by Mr. Czura
as being most familiar with the station's operations, was unfamiliar
with EAS requirements and said that she had never observed EAS
activity during her five years at the station. During regular business
hours on July 27, 2011, the agents from the Atlanta Office requested
to inspect Station WNFO's public inspection file. The public
inspection file produced was incomplete and was missing all
issues/programs lists, ownership reports, the most recent Public and
Broadcasting, and a copy of the LMA. The LMA operator was unfamiliar
with the public inspection file and said that she had never filed
anything in the file and that, to her knowledge, the licensee had
never been to the main studio to place anything in the file. At the
conclusion of the main studio inspection, the agents from the Atlanta
Office contacted Mr. Czura via telephone. Mr. Czura was also
unfamiliar with the public inspection file and suggested that the LMA
operator would have the required documents or that the documents might
be located in the transmitter building at the transmitter site. Mr.
Czura said that the EAS equipment was located in the transmitter
building, but he was unable to provide any further details regarding
EAS logs or EAS operations. Mr. Czura claimed to be unaware that a
section of the fence surrounding the base of the AM antenna tower had
collapsed, but said he would get the fence repaired.
4. The agents from the Atlanta Office then returned to Station WNFO's
transmitter site and inspected the transmitter building's facilities.
The agents found an EAS encoder/decoder (ENDEC) in the transmitter
building plugged into a power source, but the ENDEC was not connected
to any receivers or to the transmitter. There were no current EAS logs
at the transmitter site and the ENDEC internal memory showed no EAS
activity. The agents also searched for the public inspection file
documents but were unable to find anything.
5. On July 28, 2011, the agents from the Atlanta Office, accompanied by
an engineer often hired by the LMA operator to perform work on the
station, returned for a final inspection of the transmitter site. The
engineer confirmed that the EAS ENDEC was not connected to the
transmitter or to a receiver. The engineer demonstrated that the EAS
ENDEC was operational and could send a test, but, because it was not
connected to anything other than a power supply, the test was not
broadcast over the air.
6. On September 9, 2011, the Atlanta Office issued a Letter of Inquiry to
Mr. Czura regarding Station WNFO. Mr. Czura responded to the LOI on
September 30, 2011. Mr. Czura again stated that "some portion" of the
station's public inspection file may have been at the transmitter site
during the July 27, 2011 inspection, but provided no specifics or
evidence to support this claim. He also asserted that the LMA operator
was responsible for the public inspection file. Mr. Czura stated that
he observed the fence surrounding the antenna tower on July 20, 2011
and "found nothing amiss." Finally, Mr. Czura stated that "[a]n act of
vandalism occurred at the tower site after Mr. Czura's visit on July
20, 2011. The exact date is uncertain, but the EAS equipment in the
transmitter building is believed to have become disconnected at that
time. Mr. Czura normally tests the EAS system himself. A number of
items were discovered to be missing after the vandalism, and unfiled
tapes for the EAS logs appear to be among them. The EAS equipment is
currently under repair and will be operational by the end of next
week."
III. DISCUSSION
7. 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.
A. Failure to Maintain Antenna Tower Fencing
8. Section 73.49 of the Rules states that "[a]ntenna towers having radio
frequency potential at the base...must be enclosed within effective
locked fences or other enclosures." On July 27, 2011, when the station
was on the air and when the tower had radio frequency potential at the
base, agents from the Atlanta Office observed that a large section of
the fence surrounding the base of the WNFO(AM) antenna tower had
collapsed, allowing access to the base of the tower. Based on its
condition, the agents determined that the fence had been collapsed for
more than one day. Mr. Czura does not dispute that the fence
collapsed, but claims that the fence was intact on July 20, 2011.
Given the condition of the fence, however, we do not find Mr. Czura's
assertion that the fence was intact on July 20, 2011 plausible. In any
event, regardless of whether the fence was intact on July 20, 2011, it
is clear that the fence allowed access to the base of the tower and
was ineffective on more than one day. Accordingly, based on the
evidence before us, we find that Mr. Czura apparently willfully and
repeatedly violated Section 73.49 of the Rules by failing to maintain
an effective locked fence around an AM antenna tower.
B. Failure to Maintain Operational Readiness of Emergency Alert System
Equipment
9. 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 the 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 the 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 the 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.
10. 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 July 27, 2011, agents from
the Atlanta Office observed that the station's EAS equipment located
at the transmitter site was not connected to the transmitter or to any
receivers. Accordingly, the equipment was unable to receive or send
EAS tests over the air. The LMA operator for the station, who was the
only regular person staffing the station, acknowledged that she had
never witnessed any EAS activity at the station during her five years
at the station. Mr. Czura asserts vandals disconnected the EAS
equipment sometime after July 20, 2011 and removed the station's EAS
logs. However, when the agents arrived at the transmitter site on July
27, 2011, they found the outside door of the transmitter building
locked with a padlock. It is difficult to believe that vandals would
have disconnected, but otherwise left untouched, valuable EAS
equipment at the transmitter site, removed the station's EAS logs, and
then secured the transmitter site afterwards. Moreover, if the EAS
equipment was operational on July 20, 2011 and an EAS test was
transmitted, there should have been some record of the test in the
equipment's internal memory. Because Station WNFO did not maintain any
EAS logs and could not produce entries in the internal memory of the
EAS unit to demonstrate properly functioning EAS equipment during the
past 60 days, we do not find Mr. Czura's assertion that the station's
EAS equipment had been operational prior to July 20, 2011 reliable.
Accordingly, based on the evidence before us, we find that Mr. Czura
apparently willfully and repeatedly violated Section 11.35 of the
Rules by failing to install EAS equipment such that its monitoring and
transmitting functions were operational.
C. Failure to Maintain and Make Available the Public Inspection File
11. Section 73.3526 of the Rules states that "[e]very permittee or
licensee of an AM, FM, TV or a Class A station in the commercial
broadcast services shall maintain a public inspection file containing
the material" set forth in that section. Section 73.3526(e)(12) of
the Rules states that commercial AM and FM broadcast stations must
retain in the file "every three months a list of programs that have
provided the station's most significant treatment of community issues
during the preceding three month period. [ . . . ] The lists described
in this paragraph shall be retained in the public inspection file
until final action has been taken on the station's next license
renewal application." Sections 73.3526(e)(5) and (e)(8) of the Rules
states that a the most recent, complete ownership report and the most
recent version of the manual entitled "The Public and Broadcasting"
shall be placed in the public inspection file. Section 73.3526(e)(14)
of the Rules states that "a copy of every agreement or contract
involving time brokerage of the licensee's station ... shall be
retained as long as the contract or agreement is in force." The
public inspection file must be maintained at the main studio of the
station, and must be available for public inspection at any time
during regular business hours.
12. On July 27, 2011, in response to request made during regular business
hours, the LMA operator for Station WNFO, the person Mr. Czura stated
was responsible for the public inspection file, was unable to produce
a complete public inspection file. The LMA operator stated she was
unfamiliar with the public inspection file and had never placed
anything in the file. The file produced was missing all
issues/programs lists, ownership reports, a copy of the LMA contract,
and the current version of the Public and Broadcasting. Mr. Czura
asserts that the missing items may have been located at the
transmitter site, but the agents were unable to find the missing items
at the transmitter site on July 27, 2011, and Mr. Czura has not
produced any evidence to support his claim. Based on the evidence
before us, we find that Mr. Czura apparently willfully and repeatedly
violated Section 73.3526 of the Rules by failing to maintain a
complete public inspection file and apparently willfully violated
Section 73.3526 of the Rules by failing to make available a complete
public inspection file.
D. Proposed Forfeiture and Reporting Requirement
13. Pursuant to the Commission's 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 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, 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 Mr. Czura is apparently liable for a
total forfeiture of $25,000, consisting of the following: $7,000 for
failure to maintain an effective locked fence, $8,000 for failure to
install EAS equipment, and $10,000 for failure to maintain and make
available a complete public inspection file.
14. We direct Mr. Czura to submit a written statement, pursuant to Section
1.16 of the Rules, signed under penalty of perjury that the licensee
has: (1) repaired the locked fence around the base of the antenna
tower; (2) placed all of the required contents in Station WNFO's
public inspection file; and (3) properly installed Station WNFO's EAS
equipment. This statement must be provided to the Atlanta Office at
the address listed in paragraph 19 within thirty (30) calendar days of
the release date of this NAL.
IV. ORDERING CLAUSES
15. 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, Walter M. Czura is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty five thousand dollars ($25,000) for violations of
Sections 11.35(a), 73.49, and 73.3526 of the Rules.
16. 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,
Walter M. Czura SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
17. IT IS FURTHER ORDERED that Walter M. Czura SHALL SUBMIT a statement as
described in paragraph 14 to the Atlanta Office within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order.
18. 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. 20554.8 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. Walter Czura will send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
19. 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, Atlanta Office, 3575 Koger Blvd., Suite 320, Duluth,
GA 30096 and include the NAL/Acct. No. referenced in the caption.
Walter M. Czura also shall email the written response to,
SCR-Response@fcc.gov.
20. 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.
21. 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 Walter M. Czura at P.O. Box
6567, Hilton Head Island, SC 29938.
FEDERAL COMMUNICATIONS COMMISSION
Douglas G. Miller
District Director,
Atlanta Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.49, 11.35(a), 73.3526.
Many of the boards comprising the downed fence section were broken and
separated and were covered with weeds, leaves, and debris, indicating that
the fence had been collapsed for a long time.
The main studio was located about 8 miles from the transmitter site.
The agents contacted Mr. Czura via telephone and asked to meet with him,
but he was unavailable to meet with the agents in person and did not send
an alternate representative. Mr. Czura told the agents that the LMA
operator was the most familiar person with station operations, so the
agents continued the inspection of the main studio with the LMA operator.
The LMA operator never heard any EAS alerts or tests transmitted or
received and re-transmitted by Station WNFO.
The agents made a second request for Mr. Czura to accompany them during
the inspection, but he declined.
The transmitter building was a padlocked and unattended shed.
Mr. Czura provided the agents access to the key to the lock on the
transmitter building and gave them permission to inspect the building.
There was an old EAS log covering 2003 and 2004 in the transmitter
building.
Letter from Douglas G. Miller, District Director, Atlanta Office to Walter
M. Czura, dated September 9, 2011 (LOI).
Letter from Robert V. Mathison, Jr., Counsel for Walter M. Czura, to
Douglas G. Miller, District Director, Atlanta Office, dated September 30,
2011 (LOI Response).
LOI Response at 1-2.
LOI Response at 2.
LOI Response at 3.
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) (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).
Southern California Broadcasting Co., 6 FCC Rcd at 4388 para 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362 para 9.
47 C.F.R. S: 73.49.
We note that Mr. Czura states he had the fence repaired soon after agents
from the Atlanta Office contacted him, but corrective action taken after
an inspection is expected and does not warrant mitigation of a forfeiture.
See International Broadcasting Corporation, Order on Review, 25 FCC Rcd
1538 (2010); Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099
(1994).
47 C.F.R. S:S: 11.11, 11.19, 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: 11.21.
47 C.F.R. S: 11.35(a).
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(e)(12).
47 C.F.R. S:S: 73.3526(e)(5), (e)(8).
47 C.F.R. S: 73.3526(e)(14).
47 C.F.R. S: 73.3526(b).
47 C.F.R. S: 73.3526(c).
Even if the missing contents were located in the transmitter site, it is
undisputed that on July 27, 2011, Mr. Czura failed to make available a
complete public inspection file.
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 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,
11.35, 73.49, 73.3526.
8 See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-341
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Federal Communications Commission DA 12-341