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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
LSM Radio Partners, L.L.C. ) File Number: EB-08-MA-0188
Licensee of Station WWWK(FM) ) NAL/Acct. No.: 200932600001
Islamorada, Florida ) FRN: 0010245207
Facility ID # 34355 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 8, 2009
By the Resident Agent, Miami Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that LSM Radio Partners, L.L.C. ("LSM Radio"), licensee of station
WWWK(FM), in Islamorada, FL, apparently willfully and repeatedly
violated Sections 11.35(a) and 73.1125(a) of the Commission's Rules
("Rules") by failing to maintain an operational Emergency Alert System
("EAS") and failing to maintain a main studio for WWWK(FM) consistent
with the Rules. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that LSM Radio is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000).
II. BACKGROUND
2. On February 6, 2009, in response to a complaint alleging that radio
station WWWK(FM) did not have an EAS installed at its main studio, the
Commission's Miami Office of the Enforcement Bureau ("Miami Office")
issued a Letter of Inquiry ("LOI") to LSM Radio requesting information
regarding its EAS equipment. In a response dated March 4, 2009, LSM
Radio stated that the station did not have operational EAS equipment
installed in its main studio between May 15, 2007 and February 13,
2009. LSM Radio states that it repaired the station's EAS unit on
February 13, 2009.
3. On April 9, 2009, an agent from the Miami Office conducted a telephone
interview with the general manager ("GM") for LSM Radio. The GM stated
that station WWWK(FM) had terminated its local marketing agreement
("LMA") with Caribbean Broadcasting, Inc. and moved out of its
previous main studio location in Homestead, FL. The GM stated that
station WWWK(FM) would generate all programming from its transmitter
site in Rock Harbor, FL. The GM stated that the transmitter site would
serve as the main studio until LSM Radio enters into a new LMA and
finds a new studio location.
4. On July 7, 2009, agents from the Miami Office attempted to inspect the
main studio for station WWWK(FM) in Rock Harbor, FL during normal
business hours. The agents observed a locked fence surrounding the
perimeter of the studio building. There was no staff present at the
time of inspection and there was no telephone number posted on the
studio building. The agents called the station's contract engineer,
who later met them at the main studio, to conduct an inspection of the
station's EAS. The EAS was operational. The contract engineer would
not answer any questions regarding the regular staffing of the main
studio.
5. On August 3, 2009, an agent from the Miami Office attempted to inspect
the main studio for station WWWK(FM) in Rock Harbor, FL during normal
business hours. The agent observed a locked fence surrounding the
perimeter of the studio building, and there was no posted telephone
number for the station. There was no staff present at the time of
inspection.
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 are installed and operational so
that the monitoring and transmitting functions are available during
the times the station is in operation. LSM Radio admits that station
WWWK(FM) did not have operational EAS equipment between May 15, 2007
and February 13, 2009. The station was in operation during this
period.
8. Section 73.1125(a) of the Rules requires broadcast stations to
maintain a main studio. "A station must equip the main studio with
production and transmission facilities that meet applicable standards,
maintain continuous program transmission capability, and maintain a
meaningful management and staff presence." The Commission has defined
a minimally acceptable "meaningful presence" as full-time managerial
and full-time staff personnel. On July 7, 2009 and August 3, 2009,
during normal business hours, no management or staff employees of
station WWWK(FM) were present at the main studio in Rock Harbor, FL.
The perimeter fence was locked on both days.
9. Based on the evidence before us, we find that LSM Radio apparently
willfully and repeatedly violated Sections 11.35(a) and 73.1125(a) of
the Rules by failing to ensure that EAS equipment was operational when
the station was in operation between May 15, 2007 and February 13,
2009 and failing to maintain a full-time managerial and staff presence
at the station's main studio on July 7 and August 3, 2009.
10. 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 not having operational EAS equipment
installed and not maintaining a meaningful management and staff
presence are $8,000 and $7,000, respectively. 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 LSM Radio is apparently liable for a
$15,000 forfeiture.
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, 0.311,
0.314 and 1.80 of the Commission's Rules, LSM Radio Partners, L.L.C.
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 73.1125(a) of the Rules.
12. 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, LSM Radio Partners,
L.L.C. SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
13. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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 Federal Reserve Bank of New York, 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. If you have
questions, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made, LSM
Radio Partners, L.L.C. will send electronic notification on the date
said payment is made to SCR-Response@fcc.gov.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Miami Office,
P.O. Box 520617, Miami, FL 33152 and must include the NAL/Acct. No.
referenced in the caption.
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 shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to LSM Radio Partners, L.L.C. at its
address of record and to its counsel, David G. O'Neil, Rini Coran, PC,
1615 L Street, NW, Suite 1325, Washington, DC 20054.
FEDERAL COMMUNICATIONS COMMISSION
Michael Mattern
Resident Agent
Miami Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 11.35(a) and S: 73.1125(a).
47 U.S.C. S: 503(b).
See LOI Response at 4.
Id. at 5.
LSM Radio also stated that it would generate original programming for
WWWK(FM) from its transmitter site as of February 9, 2009 in its response
to the LOI. LOI Response at 4.
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."
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),
73.1125(a).
See 47 C.F.R. S: 1.1914
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission