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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-09-DT-0386
)
Birach Broadcasting Corporation NAL/Acct. No.: 201132360005
)
Licensee of Station WCXI(AM) FRN: 0003766847
)
Fenton, Michigan Facility ID #: 10475
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: June 1, 2012 Released: June 1, 2012
By the District Director, Detroit Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Birach Broadcasting Corporation (Birach), licensee of AM
Station WCXI in Fenton, Michigan (Station), apparently willfully and
repeatedly violated (1) Section 73.49 of the Commission's rules
(Rules) by failing to enclose the Station's antenna structure within
an effective locked fence; and (2) Sections 73.3526(e)(12) and
73.3526(c)(1) of the Rules by failing to maintain and make available
the issues/program lists in the Station's public inspection file. We
conclude that Birach is apparently liable for a forfeiture in the
amount of seventeen thousand dollars ($17,000). We further direct
Birach to submit, no later than thirty (30) calendar days from the
date of this NAL, a written statement signed under penalty of perjury
stating that the Station is now in compliance with Sections 73.49 and
73.3526 of the Rules.
II. BACKGROUND
2. On February 18, 2010, in response to a complaint, an agent from the
Enforcement Bureau's Detroit Office (Detroit Office) conducted an
inspection of the Station's main studio with the Station Manager. The
agent reviewed the materials in the Station's public inspection file
and found that the file did not contain any quarterly issues/programs
lists for the current license term, i.e., it was missing 24 quarters
of issues/programs lists. The agent had planned to inspect the
Station's two-tower antenna structure array on that day as well, but
access to the structures was blocked by snow.
3. On March 25, 2010, the agent returned to inspect the Station's
two-tower array and observed that the fence enclosing antenna
structure number 1049269 (Antenna Structure) was severely damaged.
Specifically, a portion of the fence had separated, resulting in a gap
that allowed unrestricted access to the Antenna Structure. Based on
the severity of the fence's deterioration and the amount of plant
growth surrounding the fence, the agent concluded that it was a
condition that had existed for a considerable period of time. The
agent also observed that there was no perimeter property fence
surrounding the property.
4. On May 20, 2010, the Detroit Office issued a letter of inquiry (LOI)
requesting information regarding, inter alia, the Station's missing
issues/programs lists and the Antenna Structure fencing. On June 9,
2010, the Detroit Office received a reply to the LOI, which included
declarations from the Station's owner, contract engineer, and manager.
In the LOI Response, Birach did not dispute that the fencing was in
need of repair and the Station's contract engineer reported that he
repaired the fencing around the Antenna Structure and properly secured
the gate. Birach also did not dispute that the issues/programs lists
were missing. The Station's manager reported that she had never been
instructed to maintain issues/programs lists in the public inspection
file. The Station's manager further stated that, after receipt of the
LOI, Birach's attorney provided her instructions on how to maintain
the issues/programs lists.
III. DISCUSSION
5. 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 Enclose the Antenna Structure within an Effective Locked
Fence
6. Section 73.49 of the Rules requires that antenna structures having
radio frequency potential at the base (e.g., series fed, folded
unipole, and insulated base antennas) must be enclosed within
effective locked fences or other enclosures. The agent's inspection of
the series fed Antenna Structure on March 25, 2010, revealed that the
gap in the fence allowed unrestricted access to the base of the
Antenna Structure. Further, the severity of the fence's deterioration
and the amount of plant growth surrounding the fence clearly indicated
that the fence had been in this condition for quite some time. Based
on the evidence before us, we find that Birach apparently willfully
and repeatedly violated Section 73.49 of the Rules.
A. Failure to Maintain and Make Available Issues/Programs Lists
7. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection a file containing materials listed in
that section. Section 73.3526(c)(1) of the Rules specifies that the
file shall be available for public inspection at any time during
regular business hours, and Section 73.3526(e)(12) of the Rules
specifically requires licensees to place in their public inspection
file each calendar quarter a list of programs that have provided the
station's most significant treatment of community issues during the
preceding three month period (known as the issues/programs list). The
issues/programs lists must include "a brief narrative describing what
issues were given significant treatment and the programming that
provided this treatment," including, but not limited to, the time,
date, duration, and title of each program in which the issue was
treated. Copies of the issues/programs list must be retained in the
public inspection file until final action has been taken on the
station's next license renewal application.
8. On February 18, 2010, an agent reviewed the Station's public
inspection file and found that it did not have any quarterly
issues/programs lists for the current license term. Accordingly, based
on the evidence before us, we find that Birach apparently willfully
and repeatedly violated Sections 73.3526(e)(12) and 73.3526(c)(1) of
the Rules by failing to maintain the issues/programs lists and make
them available in the Station's public inspection file.
A. Proposed Forfeiture and Reporting Requirement
9. 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 and the base forfeiture amount
for violation of public inspection 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 Birach is apparently liable for a total
forfeiture in the amount of $17,000.
10. We further direct Birach to submit a statement pursuant to Section
1.16 of the Rules signed under penalty of perjury by an officer or
director of Birach stating that (1) an effective locked fence has been
installed around the Antenna Structure, (2) the radio issues/program
lists have been compiled, and (3) the issues/program lists have been
and are continuing to be placed in the public inspection file by the
tenth day of the succeeding calendar quarter. This statement must be
provided to the Detroit Office at the address listed in paragraph 13
within thirty (30) calendar days of the release date of this NAL.
IV. ORDERING CLAUSES
11. 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, Birach Broadcasting
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of seventeen thousand dollars ($17,000) for
violations of Sections 73.49, 73.3526(c)(1) and 73.3526(e)(12) of the
Rules.
12. 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,
Birach Broadcasting Corporation SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
13. IT IS FURTHER ORDERED that Birach Broadcasting Corporation SHALL
SUBMIT a sworn statement, as described in paragraph 10, 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, Detroit Office, 24897 Hathaway Street, Farmington Hills,
Michigan 48335-1552. Birach Broadcast Corporation also shall email the
written response to NER-Response@fcc.gov .
14. 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. Regardless of the form of payment, 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. Birach Broadcasting Corporation shall also send
electronic notification on the date said payment is made to
NER-Response@fcc.gov.
15. 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, Detroit Office, 24897 Hathaway Street, Farmington Hills,
Michigan 48335 and include the NAL/Acct. No. referenced in the
caption. Birach Broadcasting Corporation also shall email the written
response to NER-Response@fcc.gov.
16. 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.
17. 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 Birach Broadcasting
Corporation at 21700 Northwestern Highway, Tower 14, Southfield,
Michigan 48075.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
47 C.F.R. S:S: 73.49 and 73.3526(e)(12).
The current license term began when the license renewal application was
granted on September 20, 2004. See File No. BR-20040525AAV.
See Letter of Inquiry from James Bridgewater, District Director, Detroit
Office, Northeast Region, Enforcement Bureau, to Birach Broadcasting
Corporation, dated May 20, 2010.
See Letter from Lauren A. Colby, Counsel for Birach Broadcasting
Corporation, to James Bridgewater, District Director, Detroit Office,
Northeast Region, Enforcement Bureau, dated June 9, 2010 (LOI Response).
The LOI Response contained three Declarations: (1) Declaration from Sima
Birach, the President and sole shareholder of Birach (Birach Declaration),
(2) Declaration from Ralph Haines, a contract engineer for Birach (Haines
Declaration), and (3) Brenda Charette, the Station's manager (Charette
Declaration).
See Birach Declaration at 1 and Haines Declaration at 2.
See Birach Declaration at 1 and Charette Declaration at 1.
Charette Declaration at 1.
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).
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: 73.49.
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(c)(1).
47 C.F.R. S: 73.3526(e)(12).
Id.
The license term for Station WCXI commenced on September 20, 2004, when
the FCC granted WCXI's license renewal application. See File No.
BR-20040525AAV.
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. 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,
73.49, 73.3526(c)(1), 73.3526(e)12.
See 47 C.F.R. S: 1.1914.
See 47 C.F.R. S:S: 1.80(f)(3), 1.16.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-846
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Federal Communications Commission DA 12-846