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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-FIELDSCR12-00000697
)
ERJ Media, LLC NAL/Acct. No.: 201232600009
)
Licensee of Station WOIR FRN: 0018302281
)
Miami, Florida Facility ID No.: 13776
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: April 6, 2012 Released: April 6, 2012
By the Resident Agent, Miami Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that ERJ Media, LLC (ERJ Media), licensee of Station WOIR, in Miami,
Florida, apparently willfully and repeatedly violated Section
73.1745(a) of the Commission's rules (Rules), by failing to operate
within authorized power limitations. We conclude that ERJ Media is
apparently liable for a forfeiture in the amount of four thousand
dollars ($4,000). In addition, we direct ERJ Media to submit, no later
than thirty (30) calendar days from the date of this NAL, a statement
signed under penalty of perjury that it is operating its station at
authorized power levels.
II. BACKGROUND
2. Station WOIR, an AM radio station, is authorized to operate on 1430
kHz with 5000 watts during the day and 500 watts at night. The license
for Station WOIR specifies the average sunset time for the month of
February to be 6:15 p.m. local time. On February 10 and 11, 2012, in
response to a complaint about the Station operating at night, an agent
from the Enforcement Bureau's Miami Office (Miami Office) monitored
the field strength of Station WOIR's transmissions before and after
sunset and observed no noticeable change in field strength on either
day. On February 13, 2012, an agent from the Miami Office observed
that the field strength measurements taken at night on February 10 and
11, 2012, were approximately the same value as the field strength
measurements of Station WOIR's transmissions taken during the day when
it was operating at a full daytime power of 5000 watts, thereby
confirming Station's WOIR's overpower operations at night. During an
inspection of Station WOIR on February 13, 2012, ERJ Media had no
explanation for the Station's overpower operations.
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. Operation at Power Levels not Authorized by Station License
4. Section 73.1745(a) of the Rules states that "[n]o broadcast station
shall operate at times, or with modes or power, other than those
specified and made a part of the license, unless otherwise provided in
this part." Station WOIR is licensed to operate with 5000 watts during
the day and with 500 watts at night. On February 10 and 11, 2012, an
agent observed Station WOIR operate its station with daytime power of
5000 watts after sunset. Based on the evidence before us, we find that
ERJ Media apparently willfully and repeatedly violated Section
73.1745(a) of the Rules by failing to operate within authorized power
limitations.
B. Proposed Forfeiture Amount and Reporting Requirement
5. 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 ERJ
Media is apparently liable for a forfeiture in the amount of $4,000.
6. We further order ERJ Media to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of ERJ Media, stating that it is operating Station
WOIR at its authorized power levels. This statement must be provided
to the Miami Office at the address listed in paragraph 11, below,
within thirty (30) calendar 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, ERJ Media, LLC is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violations of Section
73.1745(a) of the Rules.
8. 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,
ERJ Media, LLC 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 ERJ Media, LLC SHALL SUBMIT a written
statement, as described in paragraph 6, above, 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, South Central Region,
Miami Office, P.O. Box 520617, Miami, FL 33152. ERJ Media, LLC shall
also e-mail the written statement to SCR-Response@fcc.gov.
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
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 E-mail: ARINQUIRIES@fcc.gov. JHT Ventures will also
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Miami Office, P.O. Box 520617, Miami, FL 33152, and
include the NAL/Acct. No. referenced in the caption. ERJ Media also
shall email the written response to SCR-Response@fcc.gov.
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 ERJ Media LLC, 14100 SW 144th
Ave., Miami, FL 33186.
FEDERAL COMMUNICATIONS COMMISSION
Michael Mattern
Resident Agent
Miami Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 73.1745(a).
See License File No. BL-20010202ABA.
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: 73.1745(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,
73.1745(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 12-546
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Federal Communications Commission DA 12-546