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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Debut Broadcasting Mississippi, Inc. Licensee of Station
WNLA-AM Indianola, MS Owner of Antenna Structure No.: 1042309 Indianola,
MS ) ) ) ) ) ) ) ))) File No.: EB-11-OR-0141 NAL/Acct. No.: 201232620002
FRN: 0016290595 Facility ID No.: 59971
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: June 12, 2012 Released: June 12, 2012
By the District Director, New Orleans Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Debut Broadcasting Mississippi, Inc. (Debut
Broadcasting), licensee of Station WNLA-AM and owner of antenna
structure number 1042309 (the Antenna Structure) in Indianola,
Mississippi, apparently willfully and repeatedly violated Section
303(q) of the Communications Act of 1934, as amended (Act) and
Sections 17.48, 17.51, and 73.1745 of the Commission's rules (Rules)^
by failing to: (1) notify the Federal Aviation Administration (FAA)
immediately of a known lighting outage; (2) exhibit required antenna
structure lighting; and (3) operate its station within authorized
power limitations. We conclude that Debut Broadcasting is apparently
liable for a forfeiture in the amount of fourteen thousand dollars
($14,000). In addition, we direct Debut Broadcasting 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 Station
WNLA-AM in compliance with the terms of its station authorization and
the Antenna Structure's lighting requirements.
II. BACKGROUND
2. Station WNLA-AM is authorized to operate with 500 watts during the day
and increasingly reduced power at night.^ On November 7, 2011, in
response to a complaint, agents from the Enforcement Bureau's New
Orleans Office (New Orleans Office) took field strength measurements
of Station WNLA-AM's transmissions from approximately the same
location at 5:08 p.m., 6:30 p.m., and 7:05 p.m., local time. The
agents observed no change in field strength at those times. The agents
also observed that the lights on the Antenna Structure were not
exhibited after sunset.^
3. On November 8, 2011, agents from the New Orleans Office measured the
field strength of Station WNLA-AM's transmissions before and after
sunset from the same location used the previous night and observed no
change in field strength.^ The agents again observed that the lights
on the Antenna Structure were not exhibited after sunset.^
4. On November 9, 2011, an agent from the New Orleans Office determined
that Debut Broadcasting had not contacted the FAA and that a Notice to
Airmen (NOTAM) regarding the Antenna Structure's light outage had not
been issued.^ That same day, agents from the New Orleans Office
inspected Station WNLA-AM's main studio. During the inspection,
station personnel admitted to the agents that they knew the lights on
the Antenna Structure were out. The agents also measured the field
strength of the Station's transmissions with the transmitter in
daytime and nighttime modes from the same location as the previous
measurements on November 7 and 8, 2011. The measured field strength of
Station WNLA-AM's transmissions on November 7 and 8, 2011 were
approximately the same value as the field strength measurement taken
when the transmitter was in daytime mode, and more than three times
the value of nighttime mode, thus indicating that Station WNLA-AM was
operating overpower at night.
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 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. Failure to Exhibit Required Obstruction Lighting on the Antenna
Structure and to Notify the FAA of a Lighting Outage
6. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission.^ Section 17.51(a) of the Rules requires all red
obstruction lighting to be exhibited from sunset to sunrise unless
otherwise specified.^ Section 17.48 of the Rules requires antenna
structure owners to notify the FAA immediately of any known
extinguishment of any top steady burning light or any flashing
obstruction light, regardless of its position, not corrected within 30
minutes.^ The Antenna Structure is 97.5 meters above ground in overall
height and, thus, is required to be painted and lit.^ On November 7
and 8, 2011, agents from the New Orleans Office observed that no
lighting on the Antenna Structure was exhibited after sunset. During
the inspection on November 9, 2011, station personnel admitted to the
agents that they were aware of the lighting outage. On November 9,
2011, an agent confirmed that Debut Broadcasting had not notified the
FAA of this outage. Therefore, based on the evidence before us, we
find that Debut Broadcasting apparently willfully and repeatedly
violated Section 303(q) of the Act, and Sections 17.48 and 17.51 of
the Rules by failing to exhibit required red obstruction lighting on
the Antenna Structure after sunset and failing to notify the FAA
immediately of a known prolonged outage.
A. Failure to Operate with Authorized Power Limitations
7. Section 73.1745(a) of the Rules requires that no broadcast station
shall operate at times, or with modes or power, other than those
specified and made a part of the license.^ Station WNLA-AM is
authorized to operate with 500 watts during the day and increasingly
reduced power at night.^ On November 7 and 8, 2011, agents from the
New Orleans Office monitored Station WNLA-AM and observed no change in
the measured field strength, indicating that Station WNLA-AM was
operating with its daytime power of 500 watts at night. Based on the
evidence before us, we find that Debut Broadcasting apparently
willfully and repeatedly violated Section 73.1745 of the Rules by
failing to operate within authorized power limits.
C. Proposed Forfeiture Amount and Reporting Requirement
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to comply
with antenna structure prescribed lighting is $10,000, and 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 Debut Broadcasting is apparently liable
for a total forfeiture of $14,000, consisting of the following:
$10,000 for violation of antenna structure lighting requirements and
$4,000 for overpower operations.
9. We direct Debut Broadcasting to submit a written statement, pursuant
to Section 1.16 of the Rules,^ in addition to any statement it might
submit pursuant to paragraph 14, signed under penalty of perjury by an
officer or director of Debut Broadcasting stating that it is currently
reducing Station WNLA-AM's transmitter power at night as required and
that the lights on the Antenna Structure have been restored. If the
lights on the Antenna Structure have not been restored, Debut
Broadcasting's statement shall provide a timeframe for lighting
restoration, and Debut Broadcasting shall continue to notify the FAA
of the lighting outage to ensure an active NOTAM is in place. This
statement must be provided to the New Orleans Office at the address
listed in paragraph 12 within thirty (30) calendar days of the release
date of this NAL.
IV. ORDERING CLAUSES
10. 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, Debut Broadcasting
Mississippi, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of fourteen thousand dollars ($14,000) for
violations of Section 303(q) of the Act and Sections 17.48, 17.51, and
73.1745 of the Commission's rules.^
11. 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,
Debut Broadcasting Mississippi, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. IT IS FURTHER ORDERED that Debut Broadcasting Mississippi, Inc. SHALL
SUBMIT a statement as described supra in paragraph 9 to the New
Orleans Office 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, New Orleans Office, 2424
Edenborn Avenue, Suite 460, Metairie, LA 70001. Debut Broadcasting
Mississippi, Inc. shall also e-mail the written statement to
[1]SCR-Response@fcc.gov.
13. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the Account Number and FRN
referenced above. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must also be submitted. An FCC Form 159
may be obtained at [2]http://www.fcc.gov/Forms/Form159/159.pdf. When
completing the FCC Form 159, enter the Account Number in block number
23A (call sign/other ID) and enter the letters "FORF" in block number
24A (payment type code). Payment by check or money order must be made
payable to the order of the Federal Communications Commission. Such
payments 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. 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:
[3]ARINQUIRIES@fcc.gov. Debut Broadcasting Mississippi, Inc. will also
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
14. 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, New Orleans Office, 2424 Edenborn Avenue, Suite 460,
Metairie, LA 70001, and include the NAL/Acct. No. referenced in the
caption. Debut Broadcasting Mississippi, Inc. also shall email the
written response to SCR-Response@fcc.gov.
15. 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.
16. 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 Debut Broadcasting
Mississippi, Inc. at 1101 Cherry Avenue, Suite B, Nashville, TN 32703.
FEDERAL COMMUNICATIONS COMMISSION
Walter Gernon
District Director
New Orleans Office
South Central Region
Enforcement Bureau
^ 47 U.S.C. S 303(q); 47 C.F.R. SS 17.48, 17.51, 73.1745.
^ Station WNLA-AM operates at night pursuant to Post-Sunset Authority. In
the month of November, Station WNLA-AM must reduce power to 70 watts at
5:00 p.m. (Central Standard Time (CST)), 36 watts at 5:30 p.m. (CST), and
26 watts at 6:00 p.m. (CST). See Revised Parameter for Operation under
Post-Sunset Authority for Facility ID number 59971, dated February 28,
2007.
^ Local sunset was 5:06 p.m. on November 7, 2011.
^ Agents monitored the Station between 4:30 p.m. and 5:30 p.m., local
time.
^ Local sunset was 5:06 p.m. on November 8, 2011.
^ A NOTAM was issued by the FAA on November 9, 2011 at the agent's
request.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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 U.S.C. S 303(q).
^ 47 C.F.R. S 17.51(a).
^ 47 C.F.R. S 17.48.
^ See Antenna Structure Registration database for antenna structure number
1042309. See also 47 C.F.R. S 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted).
^ 47 C.F.R. S 73.1745(a).
^ See supra note 2.
^ 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. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.48, 17.51, 73.1745.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-920
5
Federal Communications Commission DA 12-920
References
Visible links
1. mailto:SCR-Response@fcc.gov
2. http://www.fcc.gov/Forms/Form159/159.pdf
3. mailto:ARINQUIRIES@fcc.gov