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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-10-DT-0337
)
Birach Broadcasting Corporation NAL/Acct. No.: 201232360007
)
Licensee of Station WOAP(AM) FRN: 0003766847
)
Owosso, Michigan Facility ID No.: 41682
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: June 14, 2012 Released: June 14, 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 WOAP in Owosso, Michigan (Station), apparently willfully and
repeatedly violated Section 73.1745(a) of the Commission's rules
(Rules) by operating at times other than those specified in its
license. We conclude that Birach is apparently liable for forfeiture
in the amount of four thousand dollars ($4,000). We further direct
Birach 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 currently operating in compliance with Section 73.1745(a) of the
Rules.
II. BACKGROUND
2. On October 21, 2010, the Enforcement Bureau's Detroit Office (Detroit
Office) received a complaint from a licensed broadcast station that it
was receiving interference at night from Station WOAP. Specifically,
the complainant reported that, although Station WOAP does not have
authority to operate after sunset, the complainant heard the station
operating between 9 p.m. and 11 p.m. on October 19, 2010.
3. Station WOAP is authorized to operate during the daytime only.
Accordingly, during the month of October, the Station must cease
broadcasting at local sunset time, which is 6 p.m. Eastern Standard
Time. On October 26, 2010, an agent of the Detroit Office monitored
the Station and observed that the Station continued to operate after
local sunset time, albeit at reduced power.
4. On October 27, 2010, the agent spoke to the Station's Chief Operator,
who reported that he believed the Station had post-sunset authority
(PSSA). The Station's Chief Operator also reported to the agent that
the Station had a construction permit to build modified facilities
that would allow nighttime operation and that he therefore believed
operating the Station at nighttime at a low power would not cause any
interference.
5. According to Commission records, although Station WOAP was granted a
PSSA on February 28, 2007, the Commission suspended the Station's PSSA
on March 7, 2007. The agent also found that the Commission granted the
Station a construction permit to modify its facilities to operate with
50 kilowatts daytime and 4.5 kilowatts nighttime directional, but
Birach never constructed the modified facilities.
III. DISCUSSION
6. 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 Operate Station Within Terms Authorized by Station License
7. 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 WOAP is only authorized to operate during the
daytime and therefore must cease operating at local sunset time. On
October 26, 2010, an agent observed that the Station continued
operating after 6 p.m. EST, which is the local sunset time during the
month of October. Based on the evidence before us, we find that Birach
apparently willfully and repeatedly violated Section 73.1745(a) of the
Rules by failing to operate within the terms of the Station's
authorization.
A. Proposed Forfeiture and Reporting Requirement
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for exceeding the power
limit 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 Birach
is apparently liable for a total forfeiture in the amount of four
thousand dollars ($4,000).
9. We further order Birach to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of Birach stating that it is operating Station
WOAP in compliance with Section 73.1745(a) of the Rules. This
statement must be provided to the Detroit Office at the address listed
in paragraph 14, below, 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, Birach Broadcasting
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
violation of Section 73.1745(a) of the 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,
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.
12. IT IS FURTHER ORDERED that Birach Broadcasting Corporation SHALL
SUBMIT a written statement, as described in paragraph 9, above, within
thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order. Birach Broadcasting
Corporation shall also e-mail the written statement to
NER-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 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:
ARINQUIRIES@fcc.gov. Birach Broadcasting shall also send electronic
notification on the date said payment is made to NER-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, Northeast
Region, Detroit Office, 24897 Hathaway St, Farmington Hills, Michigan
48335, and include the NAL/Acct. No. referenced in the caption. Birach
Broadcasting Corporation also shall e-mail the written response to
NER-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 first class
mail, to Birach Broadcasting Corporation at 21700 Northwestern Hwy.,
Tower 14, Suite 1190,
Southfield, MI 48075.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
On April 11, 2012, Birach filed an application for authorization to assign
Station WOAP and Station WMJH(AM), Rockford, Michigan. See File No.
BAL-20120410ACE.
47 C.F.R. S: 73.1745.
See File No. BR-20040324ADX.
In October 2010, 6 p.m. EST was equivalent to 7 p.m. local Eastern
Daylight Time (EDT) in Owosso, Michigan. On October 26, 2010, the agent
monitored the Station beginning at 5:57 p.m. EDT. The agent observed that
the Station continued to operate after 7 p.m. EDT (at reduced power) and
was still operating when the agent heard the Station's call sign
identification at 8 p.m. EDT.
See File No. BL-19971024AG.
See Suspension Of Use Of Recently Recalculated Presunrise And Postsunset
Service Authorizations And Directions For Continued Presunrise And
Postsunset Operation During March 2007 By Am Stations In Areas With
Daylight Saving Time, Public Notice, 22 FCC Rcd 4567 (2007).
See Applications of 1090 Investments, LLC, Memorandum Opinion and Order,
23 FCC Rcd 16447 (MB 2008). 1090 Investments LLC is the Station's former
licensee.
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 [A]ct
(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 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." 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).
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Federal Communications Commission DA 12-927
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Federal Communications Commission DA 12-927