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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
)
)
FORFEITURE ORDER
Adopted: June 6, 2012 Released: June 6, 2012
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of three thousand five hundred dollars ($3,500) to Super W
Media Group, Inc. (Super W or the Licensee), licensee of Station WIPC,
in Lake Wales, Florida, for willful and repeated violation of Section
73.1350(a) of the Commission's rules (Rules). The noted violations
involved Super W's failure to operate its Station in accordance with
the terms of its station authorization.
II. BACKGROUND
2. On February 28, 2012, the Enforcement Bureau's Tampa Office (Tampa
Office) issued a Notice of Apparent Liability for Forfeiture and Order
(NAL) to Super W for its failure to change power/operating mode at
night in accordance with the terms of its station authorization. The
NAL proposed a $4,000 forfeiture and ordered 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. Super W submitted a response to the NAL, in which it questions
the validity of some of the findings in the NAL and requests
cancellation of the proposed $4,000 forfeiture based on its "financial
hardship" claim. Super W also reports that it is now in compliance
with Section 73.1350(a), stating that the "automation equipment used
to transition WIPC from daytime to nighttime operations has been
repaired and is functioning properly at the present time."
III. DISCUSSION
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act), Section 1.80 of the Rules, and the Forfeiture Policy Statement.
In examining Super W's response, Section 503(b)(2)(E) of the Act
requires that the Commission take into account the nature,
circumstances, extent, and gravity of the violation 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. As discussed below, we have considered Super W's response in
light of these statutory factors, and find that a reduction of the
forfeiture is justified.
4. 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." As
discussed in the NAL, 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 as required, 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.
5. In its NAL Response, Super W states: "Super W does not concede that
the Station's nighttime operation was out of compliance at any time
other than on the evening of June 15, 2011. However, Super W has no
evidence to refute the field agents' allegations about May 21." Given
that Super W has conceded to violating Section 73.1350(a) of the Rules
on June 15, 2011, and cannot otherwise provide a basis to dispute our
finding with respect to the May 21st violation, we affirm our findings
in the NAL. In addition, we note that Super W does not dispute the
NAL's factual recitation that the Station's owner/president admitted
on June 16, 2011 that the equipment, which automatically switches the
station to nighttime power and directional pattern, malfunctioned
about one to two weeks before the inspection. This undisputed
admission also confirms that the violation occurred for more than one
day. Accordingly, we conclude that Super W willfully and repeatedly
violated Section 73.1350(a) of the Rules by failing to operate its
Station in accordance with the terms of its station authorization.
6. In spite of the violation, Super W, in its NAL Response, nonetheless
requests cancellation of the forfeiture due to "financial hardship."
With regard to an individual's or entity's inability to pay claim, the
Commission has determined that, in general, gross revenues are the
best indicator of an ability to pay a forfeiture. Nevertheless, we
recognize that, in some cases, other financial indicators, such as net
losses, may also be relevant. If gross revenues are sufficiently
great, however, the mere fact that a business is operating at a loss
does not by itself mean that it cannot afford to pay a forfeiture.
Although Super W asserts that it cannot pay the proposed forfeiture
due to an "aggregate net operating loss over" the past three calendar
years, based on our review of Super W's submitted documentation and
the relevant precedent, we conclude that the Licensee's gross revenues
can support paying a reduced forfeiture. Accordingly, we reduce the
forfeiture from $4,000 to $3,500 based solely on the financial
information that Super W submitted.
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(f)(4) of the Commission's rules, Super W Media
Group, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of three
thousand five hundred dollars ($3,500) for violations of Section
73.1350(a) of the Commission's rules.
8. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days of the
release of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
enforcement pursuant to Section 504(a) of the Act. Payment of the
forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must
include the NAL/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. 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. Please contact the Financial Operations Group Help Desk
with any questions regarding payment procedures at 1-877-480-3201 or
E-mail: ARINQUIRIES@fcc.gov. Super W shall also send electronic
notification to SCR-Response@fcc.gov on the date said payment is
made.
9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Super W
Media Group, Inc. at 630 Mountain Lake Cut-off Road, Lake Wales, FL
33859, and to its counsel, Donald E. Martin, at P.O. Box 8433, Falls
Church, VA 22041.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S: 73.1350(a).
Super W Media Group, Inc., Notice of Apparent Liability for Forfeiture and
Order, 27 FCC Rcd 2076 (Enf. Bur. 2012) (NAL). A comprehensive recitation
of the facts and history of this case can be found in the NAL and is
incorporated herein by reference.
Id.
Letter from Donald E. Martin, P.C., Attorney for Super W Media Group,
Inc., to FCC Enforcement Bureau, Tampa District Office, at 2 (filed March
29, 2012, in EB-11-TP-0018) (NAL Response).
Id.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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), recons. denied, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 73.1350(a).
NAL, 27 FCC Rcd at 2077.
Id.
Id.
NAL Response at 2.
NAL, 27 FCC Rcd at 2077
To the extent Super W is arguing that the repairs it has since made to its
equipment should serve as a basis for cancellation of the forfeiture, we
disagree. The fact that Super W has since repaired its automation
equipment and is operating its Station consistent with its authorization
does not warrant reduction of the proposed forfeiture, as such corrective
action is expected. See International Broadcasting Corporation, Order on
Review, 25 FCC Rcd 1538 (2010); Seawest Yacht Brokers, Forfeiture Order, 9
FCC Rcd 6099 (1994).
NAL Response at 2.
See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
See Forfeiture Policy Statement, 12 FCC Rcd at 17106. See also PJB
Communications of Virginia Inc., Memorandum Opinion and Order, 7 FCC Rcd
2088, 2089 (1992).
NAL Response at 2.
This amount falls within the percentage of gross revenues that the Bureau
has found to be appropriate and not excessive.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4), 73.1350(a).
47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 12-889
4
Federal Communications Commission DA 12-889