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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Pittman Broadcasting Services, LLC Licensee of Station
KVOL-AM, Lafayette, LA ) ) ) ) ) ) ) File No.: EB-FIELDSCR-12-00002104
NAL/Acct. No.: 201332620002 FRN: 0004330825 Facility ID No.: 9415
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: May 30, 2013 Released: May 30, 2013
By the Deputy Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Pittman Broadcasting Services, LLC (Pittman), licensee of
Station KVOL-AM (Station) in Lafayette, Louisiana, apparently
willfully and repeatedly violated Sections 11.35(a) and 73.1745(a) of
the Commission's rules (Rules),^ by failing to (1) maintain
operational Emergency Alert System (EAS) equipment and logs, and (2)
operate its Station within authorized power limitations. We conclude
that Pittman is apparently liable for a forfeiture in the amount of
fifteen thousand dollars ($15,000). In addition, no later than thirty
(30) calendar days from the release date of this NAL, Pittman must
submit a statement signed under penalty of perjury stating that
Station KVOL-AM is in full compliance with the Commission's EAS
requirements and is operating consistent with its license.
II. BACKGROUND
2. Station KVOL-AM's license authorizes it to operate with 5 kilowatts
during the day and 1.08 kilowatts in a directional pattern at night.^
On April 25 and April 26, 2012, in response to a complaint, an agent
from the Enforcement Bureau's New Orleans Office (New Orleans Office)
measured the field strength of Station KVOL-AM's transmissions during
the day and at night and observed no change in field strength between
day and night.^
3. On April 27, 2012, an agent from the New Orleans Office, accompanied
by the Station's production director and later the general manager,
inspected Station KVOL-AM's main studio in Lafayette, Louisiana, and
observed that the Station's EAS equipment was not connected to a power
source or any transmitting or receiving equipment. The Station's
general manager and production director admitted that the Station had
been without operational EAS since the Station changed main studio
locations during the summer of 2011. The Station also did not have any
EAS logs, documenting when the last EAS tests were transmitted or
received.
4. On May 1, 2012, an agent from the New Orleans Office, accompanied by
the Station's contract engineer, inspected Station KVOL-AM's
transmitter site. The agent made field strength measurements with the
transmitter in daytime mode and nighttime mode from approximately the
same location as on April 25 and April 26, 2012.^ The measured field
strengths of Station KVOL-AM's transmissions on April 25 and 26, 2012,
were approximately the same value as the field strength measurement
taken when the transmitter was in full-power daytime mode and more
than two times the value of nighttime mode, thereby confirming Station
KVOL-AM's overpower operations at night. The Station's contract
engineer also admitted that the Station had been without operational
EAS equipment since the main studio was moved in the summer of 2011,
and that the Station was unable to monitor and control its
transmission system.
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 Maintain Operational EAS Equipment and Logs
6. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source.^ The EAS enables
the President and state and local governments to provide immediate
communications and information to the general public.^ State and local
area plans identify local primary sources responsible for coordinating
carriage of common emergency messages from the sources such as the
National Weather Service or local emergency management officials.^
Required monthly and weekly tests originate from EAS Local or State
Primary sources and must be retransmitted by the participating
station. As the nation's emergency warning system, the EAS is critical
to public safety, and we recognize the vital role that broadcasters
play in ensuring its success. The Commission takes seriously any
violations of the Rules implementing the EAS and expects full
compliance from its licensees.
7. Section 11.35(a) of the Rules states that EAS Participants are
responsible for ensuring that EAS Encoders, EAS Decoders, and
Attention Signal generating and receiving equipment used as part of
the EAS are installed so that the monitoring and transmitting
functions are available during the times the stations and systems are
in operation.^ Section 11.35(a) also requires EAS participants to
record in station logs the reasons why any EAS tests were not
received.^ On April 27, 2012, an agent from the New Orleans Office
observed that Station KVOL-AM did not have operational EAS equipment
when the Station was on the air, and did not have any EAS logs that
documented when the equipment was last operational. The Station's
general manager, production director, and contract engineer all
confirmed that the Station had been without operational EAS equipment
since the summer of 2011. Station KVOL-AM, however, maintained no logs
or records explaining why the Station failed to receive any EAS tests
since the summer of 2011.^ Therefore, based on the evidence before us,
we find that Pittman apparently willfully and repeatedly violated
Section 11.35(a) of the Rules by failing to maintain operational EAS
equipment and logs.
B. Failure to Operate within Parameters of License
8. 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 . . . ."^ On April 25 and
April 26, 2012, an agent from the New Orleans Office observed Station
KVOL-AM operate with daytime power at night. Based on the evidence
before us, we find that Pittman apparently willfully and repeatedly
violated Section 73.1745(a) of the Rules by failing to operate its
Station within authorized power limits.
C. 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 failing to have
operational EAS equipment is $8,000, 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.^ In doing so, we find that Pittman's prior overpower
operations^ warrants an upward adjustment of $2,000.^ Furthermore, we
find that Pittman's failure to maintain any EAS logs warrants an
upward adjustment of $1,000.^ Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Pittman is apparently liable for a
total forfeiture of $15,000, consisting of the following: $9,000 for
failing to maintain operational EAS equipment and logs, and $6,000 for
the Station's overpower operations.
10. We direct Pittman to submit a written statement, pursuant to Section
1.16 of the Rules,^ signed under penalty of perjury by an officer or
director of Pittman, stating that (1) the Station is currently
reducing transmitter power and operating in a directional pattern at
night as required by its license, and (2) the EAS monitoring and
transmitting functions are available when the Station is in operation.
This statement must be provided to the New Orleans Office at the
address listed in paragraph 13, below, 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, Pittman Broadcasting
Services, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of fifteen thousand dollars ($15,000) for
violations of Sections 11.35(a) and 73.1745(a) of the Commission's
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,
Pittman Broadcasting Services, LLC 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 Pittman Broadcasting Services, LLC SHALL
SUBMIT a statement as described in paragraph 10, above, 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. Pittman Broadcasting
Services, LLC shall also e-mail the written statement to
SCR-Response@fcc.gov.
14. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Pittman Broadcasting Services, LLC will also
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ 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). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
15. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 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 by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
16. 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, New Orleans Office, 2424 Edenborn Avenue, Suite 460,
Metairie, LA 70001, and include the NAL/Acct. No. referenced in the
caption. Pittman Broadcasting Services, LLC also shall e-mail the
written response to SCR-Response@fcc.gov.
17. 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 principles (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.
18. 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 Pittman Broadcasting
Services, LLC at 307 S. Jefferson Avenue, Covington, LA 70433.
FEDERAL COMMUNICATIONS COMMISSION
Loyd Perry
Deputy Regional Director
South Central Region
Enforcement Bureau
^ 47 C.F.R. SS 11.35(a), 73.1745(a).
^ See License File No. BR-20120131ALZ.
^ On April 25, 2012, the field strength was measured at 110 mV/m at 3:45
P.M. and 8:20 P.M. On April 26, 2012, the field strength was measured at
100 mV/m at 4:23 P.M. and 7:23 P.M.
^ The measured field strength was 92 mV/m in daytime mode and 43 mV/m in
nighttime mode. If the Station switched from daytime to nighttime mode on
April 25 and 26, 2012, the agents should have observed a corresponding
decrease in field strength.
^ 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., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388, para. 5 (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, P 9.
^ 47 C.F.R. SS 11.11, 11.41.
^ 47 C.F.R. SS 11.1, 11.21.
^ 47 C.F.R. S 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
sources. 47 C.F.R. S 11.21.
^ 47 C.F.R S 11.35(a). See also 47 C.F.R. S 73.1820(a)(1)(iiii) (requiring
licensees to create an entry for each test and activation of the EAS in
the station log or in a special EAS log). If Station KVOL-AM had
operational EAS equipment prior to the summer of 2011, it failed to log
any successful EAS tests.
^ 47 C.F.R. S 11.35(a). See also 47 C.F.R. S 11.35(b) (requiring licensees
to record when defective EAS equipment is removed from service).
^ For example, Station KVOL-AM could have noted in its station log that it
failed to receive EAS tests after the summer of 2011 because its EAS
equipment was not installed.
^ 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).
^ See Pittman Broadcasting Services, LLC, Forfeiture Order, 23 FCC Rcd
2742 (Enf. Bur. 2008) (violated Section 73.1745(a) of the Rules by
operating overpower at night) (forfeiture paid).
^ See, e.g., Donald D. Coss, Notice of Apparent Liability for Forfeiture,
25 FCC Rcd 16924 (Enf. Bur. 2010) (upwardly adjusting forfeiture due to
prior violation of rule at issue); CBS Radio East Inc., Notice of Apparent
Liability for Forfeiture, 24 FCC Rcd 1293 (Enf. Bur. 2009) (upwardly
adjusting forfeiture due to prior violation of rule at issue); Union
Broadcasting, Inc., Forfeiture Order, 19 FCC Rcd 18588 (Enf. Bur. 2004)
(upholding upward adjustment due to prior Notice of Violation citing
multiple violations of the rule at issue).
^ See Iglesia Cristiana Ebenezer of Greenville, Texas, Notice of Apparent
Liability for Forfeiture and Order, DA 13-1004, 2013 WL 1881507 (Enf. Bur.
May 6, 2013) (imposing $1,000 upward adjustment for failure to maintain
EAS logs).
^ 47 C.F.R. S 1.16.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204(b), 0.311, 0.314, 1.80,
11.35(a), 73.1745(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
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Federal Communications Commission DA 13-1244
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Federal Communications Commission DA 13-1244