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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-OR-385
)
Chatterbox, Inc. ) NAL/Acct. No.200332620011
Licensee of WQXB(FM) )
Grenada, Mississippi ) FRN 0008-1877-18
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 17, 2003
By the Enforcement Bureau, New Orleans Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Chatterbox, Inc. (``Chatterbox''),
licensee of FM broadcast station WQXB, Grenada, Mississippi,
apparently liable for a forfeiture in the amount of two
thousand dollars ($2,000) for willful and repeated violation
of Section 11.61 of the Commission's Rules (``Rules'').1
Specifically, we find Chatterbox apparently liable for
failing to conduct required Emergency Alert System (``EAS'')
tests.
II. BACKGROUND
2. On November 18, 2002, an agent from the FCC
Enforcement Bureau's New Orleans Office inspected FM
broadcast station WQXB in Grenada, Mississippi. During the
course of the inspection, no logs dated since 1999 could be
produced reflecting any EAS events or reasons for failure to
send and receive required tests of the EAS. The President
of Chatterbox stated that a computer used to control the
station's EAS system was broken, that the station had
conducted no EAS tests recently, and he could not remember
the last time the station conducted an EAS test.
III. DISCUSSION
3. Section 11.61 of the Rules states that EAS tests
must be made at regular intervals. Required Monthly Tests
originate from EAS Local or State Primary sources and must
be retransmitted within 60 minutes of receipt.2 Required
Weekly Tests must be conducted at least once a week at
random days and times.3 Chatterbox could provide no
evidence of EAS tests performed at station WQXB more recent
than log entries dated June, 1999. The licensee's
representative admitted that tests had not been conducted
and that equipment controlling the EAS unit had
malfunctioned. In addition, there were no entries in the
station's log to indicate any problem or malfunction of the
EAS equipment as required by Section 11.35(b) of the Rules.4
4. Based on the evidence before us, we find Chatterbox
willfully5 and repeatedly6 violated Section 11.61 of the
Rules by failing to conduct weekly and monthly EAS tests.
5. Section 1.80(b)(4) of the Rules7 sets forth the
base amounts for various violations of the Commission's
Rules. The Rules do not establish a base forfeiture amount
for violating the Commission's rules requiring EAS tests.
Therefore we must determine an appropriate forfeiture amount
for this violation.8 The requirement that broadcast
stations conduct EAS tests is similar in both nature and
severity to other required operational performance checks
identified in the Rules as required measurements or required
monitoring. Section 1.80(b)(4) of the Rules sets the base
amount at $2,000 for failure to make required measurements
or conduct required monitoring. Therefore, we will assess
the base forfeiture for failing to conduct EAS tests in the
amount of $2,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors
set forth in Section 503(b)(2)(D) of the Communications Act
of 1934, as amended (``Act''), which include 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.9 Considering the entire
record and applying the factors listed above, this case
warrants a $2,000 forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,10 and Sections 0.111, 0.311 and
1.80 of the Rules,11 Chatterbox, Inc., is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
two thousand dollars ($2,000) for willful and repeated
violation of Section 11.61 of the Rules by failing to
conduct required Weekly and Monthly EAS tests.
7. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Chatterbox, Inc., SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.12
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
10. 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.
11. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
12. IT IS FURTHER ORDERED THAT a copy of this NAL shall
be sent by regular mail and Certified Mail Return Receipt
Requested to Chatterbox, Inc., P.O. Box 946, Grenada,
Mississippi 38901.
FEDERAL COMMUNICATIONS COMMISSION
James C. Hawkins
District Director, New Orleans
Office
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. § 11.61.
2 See 47 C.F.R. § 11.61(a)(1)(v). See also, Amendment of
Part 11 of the Commission's Rules Regarding the Emergency
Alert System, EB Docket No. 01-66, Report and Order, FCC 02-
64 (Feb. 26, 2002); 67 Fed Reg (April 16, 2002) (effective
May 16, 2002, the required monthly EAS test must be
transmitted within 60 minutes of receipt.)
3 See 47 C.F.R. § 11.61(a)(2)(i)(A).
4 47 C.F.R. § 11.35(b).
5 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed
under Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or
omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any
intent to violate any provision of this Act . . . .'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387-88
(1991).
6 The 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
U.S.C. § 312(f)(2).
7 47 C.F.R. § 1.80(b)(4).
8 See The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement''), 12
FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
The Forfeiture Policy Statement states that ``...any
omission of a specified rule violation from
the...[forfeiture guidelines]...should not signal that the
Commission considers any unlisted violation as nonexistent
or unimportant...'' Forfeiture Policy Statement, 12 FCC Rcd
at 17099. The Commission retains the discretion, moreover,
to depart from the Forfeiture Policy Statement and issue
forfeitures on a case-by-case basis, under its general
forfeiture authority contained in Section 503 of the Act.
Id.
9 47 U.S.C. § 503(b)(2)(D).
10 47 U.S.C. § 503(b).
11 47 C.F.R. §§ 0.111, 0.311, 1.80.
12 See 47 C.F.R. § 1.1914.