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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Black Crow Radio, LLC File Number: EB-07-TP-247
)
Licensee of AM Broadcast Station WNDB NAL/Acct. No:200832700018
)
Daytona Beach, FL FRN: 0005816590
)
Facility ID 10342
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 24, 2008
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Black Crow Radio, LLC., ("Black Crow"), licensee of AM Broadcast
Station WNDB, in Daytona Beach, Florida, apparently willfully and
repeatedly violated Sections 11.35(a), 73.44(b), 73.49 and 73.3526 of
the Commission's Rules ("Rules") by failing to ensure that Emergency
Alert System ("EAS") equipment was installed so that the monitoring
and transmitting functions were available during the times the station
was in operation, failing to ensure that emissions removed by 60 kHz
to 75 kHz from the WNDB fundamental frequency of 1150 kHz are
attenuated 65 dB below the unmodulated carrier level, failing to
maintain effective locked fences around the bases of two antenna
towers, and failing to maintain and make available a complete public
inspection file. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Black Crow is
apparently liable for a forfeiture in the amount of twenty-three
thousand dollars ($23,000).
II. BACKGROUND
2. On February 26, 2008, in response to a complaint that AM station WNDB
was causing interference to stations on 1070 KHz and 1230 KHz and
general interference up and down the AM band, agents from the
Commission's Tampa Office of the Enforcement Bureau ("Tampa Office")
monitored station WNDB on its licensed frequency of 1150 KHz with a
standard car radio and readily observed that the station could be
heard up and down the AM band. The agents also heard station WNDB
intermittently on stations 1070 KHz and 1230 KHz. The agents measured
the spurious emissions with a calibrated spectrum analyzer and loop
antenna and determined that WNDB was attenuated 33 dB at +/- 60 KHz
referenced to the WNDB carrier on 1150 kHz.
3. Still on February 26, 2008, agents from the Tampa Office inspected the
main studio of station WNDB. The agents informed the station of the
harmful interference they were causing and advised that they would
need to correct the problem or shut down within three hours. During
normal business hours, the agents requested to inspect the station's
public inspection file. After a long delay, the station provided a
public inspection file, but was unable to produce any quarterly
issues/programs lists. The station was unable to produce any evidence
that the station had ever maintained any issues/programs lists. The
agents also inspected the EAS equipment, and found that the activity
stored in the memory of the EAS unit indicated that weekly EAS
transmissions were received, no monthly EAS tests were received, and
no weekly or monthly EAS tests had been sent. The station did not have
any paper print-outs for the EAS unit or any EAS logs, showing that
EAS tests had been sent, and had no explanation for why the tests had
not been sent. The inspection continued at the transmitter site where
the agents observed that the station's two AM antenna series fed
towers were not enclosed within effective locked fences. One tower
fence did not have a locking mechanism, and the other tower fence had
a broken locking mechanism. The property's perimeter fence gate was
open and lying down beside the driveway. The station's chief engineer
stated the perimeter fence gate had been pushed down for about two
weeks. The station's chief engineer also stated that the station would
fix the two base fences right away. Because the station's chief
engineer turned the station transmitter off and on and made some other
adjustments during the inspection, the agents took another brief
measurement after the inspection. The agents informed the chief
engineer that the spurious emission problem remained and reminded him
that the problem had to be fixed within 3 hours or the station would
have to cease transmitting.
4. On February 28, 2008, agents from the Tampa Office returned to the
Daytona Beach area and monitored AM Broadcast Station WNDB with a
standard car radio. They again observed that the station could be
heard up and down the AM band, but to a lesser degree than before. The
agents also heard station WNDB intermittently on stations 1070 KHz and
1230 KHz. The agents measured the spurious emissions with a calibrated
spectrum analyzer and loop antenna and determined that WNDB was
attenuated 41 dB at +/- 60 KHz referenced to the WNDB carrier on 1150
kHz. The agents also observed that the fences surrounding the
station's two AM towers were in the same condition as on February 26,
2008. The agents also observed that the perimeter property fence gate
still remained open and lying on the ground.
5. On August 6, 2008, the Tampa Office issued Black Crow a Letter of
Inquiry ("LOI") requesting additional information regarding the
station's EAS. According to Black Crow, the station's EAS normally
operates in automatic mode. However, "technical problems with the
power supply for the EAS resulted in the EAS unit receiving but not
sending EAS tests. The power supply voltage would drop, resulting in
the EAS unit rebooting and dropping out of automatic mode." The
station alleged it was unable to produce any EAS printouts or logs,
because the staff was under the mistaken impression that such records
were no longer required. Black Crow also stated that WNDB staff failed
to check the EAS equipment periodically to make sure the EAS and power
supply units were functioning properly. In response to a request for
documentation of all weekly and monthly tests sent for the most recent
six month period, Black Crow only provided EAS printouts for the month
of July 2008. Finally, Black Crow stated that it fired the chief
engineer on May 1, 2008, and that the EAS unit was repaired shortly
thereafter.
III. DISCUSSION
6. Section 503(b) of the 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. The term "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
7. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders and attention signal generating
and receiving equipment is installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. During the February 26, 2008 inspection,
agents from the Tampa Office observed that the internal memory of the
EAS unit showed that none of the received weekly EAS tests had been
transmitted and that no monthly EAS tests had been received or
transmitted. The station did not have any paper print outs or EAS logs
of any EAS tests being sent. The station had no explanation for why
the weekly EAS tests had not been sent or why the monthly EAS tests
had not been received or sent. In response to the LOI, Black Crow
stated that its EAS unit was not reliable, because its power supply
was damaged, which caused the unit periodically to drop out of
automatic mode. Black Crow also stated that the station employees
failed to check the EAS and power supply periodically to ensure that
it was functioning properly. Black Crow's EAS unit was not fully
operational because it failed to receive and transmit monthly EAS
tests. Moreover, Black Crow failed to send weekly EAS tests. Black
Crow states that its EAS unit was repaired shortly after May 1, 2008,
but it was unable to provide any EAS print outs or logs that its EAS
unit was fully operational or that it had sent any EAS tests prior to
July 2008.
8. Section 73.44(a) of the Rules requires that "[t]he emissions of
stations in the AM service shall be attenuated in accordance with the
requirements specified in paragraph (b) of this section." Section
73.44(b) of the Rules requires that "[e]missions removed by 60 to 75
kHz (from the carrier) must be attenuated at least 65 dB below the
unmodulated carrier level." On February 26 and 28, 2008, agents from
the Tampa Office observed emissions removed by 60 kHz to 75 kHz from
WNDB's carrier that were attenuated by only 33 dB and 41 dB,
respectively. On February 26, 2008, agents from the Tampa Office twice
told the station to correct the spurious emissions problem or else
cease broadcasting.
9. Section 73.49 of the Rules requires antenna towers having radio
frequency potential at the base (series fed, folded unipole, and
insulated base antennas) to be enclosed within effective locked fences
or other enclosures. Individual tower fences need not be installed if
the towers are contained within a protective property fence. On
February 26 and 28, 2008, agents from the Tampa Office observed that
both AM antenna series fed towers were not enclosed within effective
locked fences and were the type of antennas which have radio frequency
potential at their base. One of the tower fences had no locking
mechanism, and the other had a broken locking mechanism. In addition,
the property's perimeter fence gate was open and lying on the ground.
The station was aware that the perimeter gate had been broken for
about two weeks prior to the inspection and was reminded of the base
fence problems on February 26, 2008.
10. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection, a file containing materials listed in
that section. Section 73.3526(c)(1) of the Rules states that the file
shall be available for public inspection at any time during regular
business hours. Section 73.3526(e)(12) of the Rules requires a list
of programs that have provided the station's most significant
treatment of community issues during the preceding three month period
("issues/programs list") to be placed in the public inspection file.
On February 26, 2008, in response to a request to inspect the
station's public inspection file during normal business hours, station
WNDB was unable to produce any issues/programs lists. There was no
evidence at the station that any issues/programs lists had ever been
maintained.
11. Based on the evidence before us, we find that Black Crow apparently
willfully and repeatedly violated Sections 11.35(a), 73.44(b), 73.49
and 73.3526 of the Rules by failing to maintain fully operational EAS
equipment, transmitting unauthorized emissions, failing to enclose
their antenna tower bases within effective fences, and failing to
maintain a complete public inspection file. We also find that Black
Crow apparently willfully violated Section 73.3526 of the Rules by
failing to make available a complete public inspection file.
12. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for failing to maintain operational EAS
equipment is $8,000, unauthorized emissions is $4,000, AM tower
fencing is $7,000 and violation of public file rules is $10,000.
Because the WNDB public inspection file was partially complete, we
conclude that a reduction in the base forfeiture amount for the public
file violation to $4,000 is appropriate. 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, and 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, we conclude that a $23,000
forfeiture is warranted.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's Rules, Black Crow Radio LLC is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty-three thousand dollars ($23,000) for violation of Sections
11.35(a), 73.44(b), 73.49 and 73.3526 of the Rules.
14. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Black Crow Radio LLC
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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 Number 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. For payment by
credit card, 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
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
16. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Tampa Office,
2203 N. Lois Ave., Suite 1215, Tampa Florida, 33607, within thirty
(30) days from the release date of this Notice of Apparent Liability
for Forfeiture and must include the NAL/Acct. No. referenced in the
caption.
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 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.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Black Crow Radio, LLC, at its address
of record and to its counsel, David G. O'Neil, Rini Coran PC, 1615 L
Street NW, Suite 1325, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 11.35 (a), 73.44(b), 73.49, 73.3526.
47 U.S.C. S: 503(b).
See 47 C.F.R. S: 73.1350(d) (if not in compliance with the technical rules
or the station authorization, and the condition is not listed in Section
73.1350(e) of the Rules, broadcast operation must be terminated within
three hours).
Section 312(f)(1) of the Act, 47 U.S.C. S: 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
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."
47 C.F.R. S: 11.35(a).
See Omni Communications Inc., Forfeiture Order, 23 FCC Rcd 9274 (South
Central Region, Enf. Bur. 2008).
47 C.F.R. S: 73.44(a).
47 C.F.R. S: 73.44(b).
47 C.F.R. S: 73.49.
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(c)(1).
47 C.F.R. S: 73.3526(e)(12).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35(a),
73.44(b), 73.49, 73.3526.
(...continued from previous page)
(continued....)
Federal Communications Commission
6
Federal Communications Commission