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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Bethune-Cookman College, Inc. ) File Number EB-08-TP-0406
Licensee of station WRWS-LP ) NAL/Acct. No. 200932700004
Daytona Beach, FL 32114-3099 ) FRN: 000-95028-65
Facility ID Number: 134386 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 21, 2009
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 Bethune-Cookman College, Inc. ("Bethune-Cookman"), licensee of
station WRWS-LP, in Daytona Beach, Florida, apparently willfully and
repeatedly violated Section 301 of the Communications Act of 1934, as
amended ("Act"), and Section 11.35(a) of the Commission's Rules
("Rules") by operating an unlicensed radio transmitter and failing to
install the required Emergency Alert System ("EAS") equipment. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Bethune-Cookman is apparently liable
for a forfeiture in the amount of eighteen thousand dollars ($18,000).
II. BACKGROUND
2. On October 31, 2008, agents from the Commission's Tampa Office of the
Enforcement Bureau ("Tampa Office"), accompanied by the station's
general manager and chief engineer, conducted an inspection of low
power FM radio station WRWS-LP's main studio in Daytona Beach, Florida
during normal business hours. The agents observed that the station was
using a broadcast studio to transmitter link ("STL") transmitter. The
station's chief engineer stated that the station was operating an STL
on 950.000 MHz with 2.8 watts of output power. Neither the chief
engineer nor the general manager could produce a license for the STL
operation or any evidence that the station had ever had an STL
license. The agents also observed that the station did not have an
installed EAS decoder. The general manager stated that he was unaware
that non-commercial low power FM stations were required to have EAS
equipment. The chief engineer stated that he tried before, without
success, to convince the station management that an EAS decoder was
needed.
3. After the inspection of the main studio, the agents from the Tampa
Office inspected the station's transmitter site, also in Daytona
Beach, Florida. The agents observed an STL receiver in operation at
the transmitter site. Using direction finding techniques, the agents
confirmed the station was operating an STL from the main studio to the
transmitter site on 950.000 MHz. There were no other means by which to
transmit the station's programming from the main studio to the
transmitter site, besides the STL equipment.
III. DISCUSSION
4. 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.
5. Section 301 of the Act requires that no person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio within the United States except under and in
accordance with the Act and with a license. The Act specifically
defines within the United States as transmissions or communications
from one place within a Territory: to another place in the same
Territory; to another State, Territory or possession of the United
States; or to any place in a foreign country or to any vessel. Section
74.6 of the Rules states applicants for and licensees of low power
auxiliary stations authorized under subparts D, E, F, and H of this
part are subject to the application and procedural rules for wireless
telecommunications services contained in part 1, subpart F of this
chapter. Section 1.903 of the Rules, located in part 1, subpart F,
requires stations in the Wireless Radio Services to be used and
operated with a valid authorization granted by the Commission. During
the inspection on October 31, 2008, agents from the Tampa Office
observed that station WRWS-LP was operating an aural broadcast STL on
the frequency of 950.00 MHz. The station's general manager and chief
engineer admitted that the station was using 950.00 MHz to transmit
the station's programming from the main studio to the transmitter
site. When the agents requested to see the license for the STL link,
the general manager and chief engineer admitted that they did not have
an authorization for the operation. Later on this date, using
direction finding techniques, the agents confirmed that WRWS-LP was
operating the broadcast STL on 950.00 MHz from the main studio to the
transmitter site. The station operates all year, Monday to Friday from
3:00 am until 3:00 pm. In addition, between July 1 and December 31,
the station operates from 3:00 am Saturday until 3:00 am Sunday. At
the time of the inspection, there was no other means by which to
transmit programming from the main studio to the transmitter site.
6. Section 11.35(a) of the Rules requires Broadcast stations to be
responsible for ensuring that ... EAS Decoders ... used as part of the
EAS are installed so that the monitoring and transmitting functions
are available during the times the stations are in operation. Section
11.11(a) of the Rules states that as of January 1, 1997, low power FM
stations are required to have an EAS decoder. During an inspection on
October 31, 2008 when the station was in operation, station WRWS-LP
did not have an installed EAS decoder. The station's general manager
was not aware at the time of the inspection that the station was
required to have an installed EAS decoder. There was no evidence that
the station had ever installed an EAS decoder at the station, and the
station's license was granted February 12, 2008.
7. Based on the evidence before us, we find that Bethune-Cookman
apparently willfully and repeatedly violated Section 301 of the Act
and Section 11.35(a) of the Rules by operating a radio transmitter
without a license and by failing to install the required EAS decoder.
8. 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 operation without an instrument of
authorization is $10,000. The base forfeiture amount for not
installing the required EAS equipment is $8,000. 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, 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 to the
instant case, we conclude that Bethune-Cookman is apparently liable
for a $18,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications
Act of 1934, as amended, and Sections 0.111, 0.311, 0.314 and 1.80 of the
Commission's Rules, Bethune-Cookman College, Inc., is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of eighteen
thousand dollars ($18,000) for violations of Section 301 of the
Communications Act of 1934, as amended and Section 11.35(a) of the
Commission's Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Bethune-Cookman College, Inc., SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
11. 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. Bethune-Cookman also will send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Tampa Office,
2203 N. Lois Avenue, Suite 1215, Tampa, Florida, 33607 and must
include the NAL/Acct. No. referenced in the caption.
13. 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.
14. 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 Bethune-Cookman College, Inc. at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 11.35 (a).
47 U.S.C. S: 503(b).
The transmitter in use was an Armstrong XLINK STL transmitter, a device
designed to be used pursuant to Part 73 of the Rules.
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 U.S.C. S: 301.
47 C.F.R. S: 74.6.
Because the station began broadcasting on February 12, 2008, the STL
transmitter was in use more than 720 hours annually. See 47 C.F.R. S:
74.24(d).
47 C.F.R. S: 11.35(a).
47 C.F.R. S: 11.11(a).
We do not need to address whether this apparent violation was willful,
because we find that the apparent violation was repeated. However, "prior
knowledge or understanding of the law is unnecessary to a determination of
whether a violation existed [and] ... [t]he Commission also does not
consider ignorance of the law a mitigating factor." Profit Enterprises,
Inc., 8 FCC Rcd 2846, 2846 (1993), cancelled on other grounds, 12 FCC Rcd
14999 (1997); see also Southern California Broadcasting Company, 6 FCC Rcd
4387 (1991). Moreover, the station's chief engineer stated that he
previously tried to convince the station that a decoder was required.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
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, 47 U.S.C.
S: 301, S:11.35(a)
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission