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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Halifax Christian Community Church, )
Inc. File Number EB-07-TP-064
)
Licensee of WFBO-LP NAL/Acct. No. 200832700014
)
Flagler Beach, Florida FRN: 0006871339
)
Facility ID # 133320
)
)
FORFEITURE ORDER
Adopted: June 26, 2008 Released: June 30, 2008
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eight thousand one hundred dollars ($8,100) to Halifax
Christian Community Church, Inc., ("Halifax"), licensee of low power
FM ("LPFM") radio station WFBO-LP, in Flagler Beach, Florida, for
willful violation of Section 73.845 of the Commission's Rules
("Rules") and willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended ("Act"). The noted violations
involve Halifax's operation of its station inconsistent with the terms
of its station authorization and its operation of an unlicensed radio
station.
II. BACKGROUND
2. On April 23, 2007, in response to a complaint that LPFM station
WFBO-LP was operating an unlicensed station on 93.5 MHz, agents from
the Commission's Tampa Office of the Enforcement Bureau ("Tampa
Office") monitored frequency 93.5 MHz in the Flagler Beach area, but
heard no station on that frequency. The agents continued scanning the
FM band and found a station on 92.7 MHz that was re-broadcasting the
signal of WFBO-LP, which is licensed to operate on 93.3 MHz in the
Flagler Beach, FL area. Agents from the Tampa Office used direction
finding techniques to locate the source of the transmission on 92.7
MHz to the European Village Resort, 101 Palm Harbor Parkway, Palm
Coast, FL. Field strength measurements on 92.7 MHz revealed that the
signal being broadcast exceeded the limits for operation under Part 15
of the Commission's Rules and therefore required a license. An agent
from the Tampa Office searched Commission databases and found no
evidence of a Commission authorization for a station to operate on
92.7 MHz from this location.
3. Still on April 23, 2007, agents from the Tampa Office found that the
source of the transmission on 92.7 MHz was emanating from station
WFBO-LP's new main studio located in the European Village Resort. The
agents interviewed the station's general manager and president, who
admitted that he was broadcasting on 92.7 MHz without a license. He
explained that, because WFBO-LP on 93.3 MHz was not heard very well on
93.3 MHz from his new studio location, he began operating on 92.7 MHz
in January 2007. The general manager/president stated that he knew the
signal on 92.7 MHz got out approximately 1,000 feet and that he could
not turn the transmitter any lower than a few watts. He voluntarily
unplugged the transmitter, which was not FCC certified, before the
agents departed the studio.
4. On October 19, 2007, agents from the Tampa Office inspected the new
main studio of station WFBO-LP located in Flagler Beach, FL after
receiving additional anonymous complaints concerning alleged
violations at the station. The agents were accompanied by the Director
of Station WFBO-LP Operations and observed that the station's
transmitter on 93.3 MHz was operating at 106 watts. The Director
contacted the station engineer who confirmed that 106 watts was the
actual transmitter power. The station engineer was aware that the
station was operating with this power level. The station engineer also
stated that the station had installed a Norwalk Electronics Phazor
antenna. The station is authorized to operate its transmitter with a
maximum of 36 watts and to operate with a Shively 6812B antenna.
5. On April 8, 2008, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture to Halifax in the amount of twenty four
thousand dollars ($24,000), for the apparent willful violation of
Section 73.845 of the Rules and the apparent willful and repeated
violation of Section 301 of the Act. Halifax submitted a response to
the NAL requesting a reduction or cancellation of the proposed
forfeiture.
III. DISCUSSION
6. The proposed forfeiture amounts in this case was assessed in
accordance with Section 503(b) of the Act, Section 1.80 of the Rules,
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement"). In examining Halifax's response,
Section 503(b) of the Act requires that the Commission take into
account 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.
7. 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. In particular, Section 301
of the Act states that "[n]o person shall use or operate any apparatus
for the transmission of energy or communications or signals by radio
(a) from one place in any State, Territory, or possession of the
United States or in the District of Columbia to another place in the
same State, Territory, possession, or District; . . . except under and
in accordance with this chapter and with a license in that behalf
granted under the provisions of this chapter." On April 23, 2007,
agents from the Tampa Office determined that Halifax was operating an
unlicensed radio transmitter on 92.7 MHz in Palm Coast, FL. Halifax's
general manager and president admitted to operating this unlicensed
transmitter on 92.7 MHz since January 2007.
8. In response to the NAL, Halifax does not deny that it operated an
unlicensed radio transmitter on 92.7 MHz. Nevertheless, it requests
cancellation or reduction of the proposed forfeiture, because it
attempted to operate the unlicensed transmitter on 92.7 with as little
power as possible and attempted to restrict the transmitter's usable
coverage area. Halifax also states that the complaint, which prompted
the inspection, was submitted by a former volunteer who wanted the
station shut down. We find that Halifax has raised no grounds to
cancel or reduce the forfeiture. Although Halifax may have attempted
to restrict the operation of its transmitter, it is undisputed that it
willfully and repeatedly operated an unlicensed radio transmitter.
Moreover, the fact that a complaint may have been submitted by a
disgruntled former volunteer does not negate the violation. Based on
the evidence before us, we find that Halifax willfully and repeatedly
violated Section 301 of the Act by operating an unlicensed radio
transmitter.
9. Section 73.845 of the Rules states that each LPFM licensee is
responsible for maintaining and operating its broadcast station in a
manner ... in accordance with the terms of the station authorization.
Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times, or with modes or power, other than those specified
and made a part of the license, unless otherwise provided in this
part. Station WFBO-LP is authorized to operate with 36 watts maximum
power and a Shively 6812B antenna. On October 19, 2007, agents from
the Tampa Office observed the station operating with 106 watts and a
Norwalk Electronics Phazor antenna. The station engineer was aware
that the station was operating with 106 watts and with a Phazor
antenna. In response to the NAL, Halifax does not deny that it was
operating overpower and with an unauthorized antenna, but states that
it has since changed frequencies and is no longer experiencing as much
interference. It asserts it no longer has a motive to operate
overpower. Halifax also states that with the move to the new frequency
it obtained a new antenna, which is authorized on its license. We find
that Halifax has provided no ground to reduce or cancel the
forfeiture. Although Halifax currently may be operating its station
consistent with its authorization, it is undisputed that Halifax
previously operated its station inconsistent with the terms of its
station authorization. Based on the evidence before us, we find that
Halifax willfully violated Section 73.845 of the Rules by operating
its station inconsistent with the terms of its station authorization
(overpower and with an unauthorized antenna).
10. Finally, Halifax states that payment of the forfeiture would pose an
undue financial hardship. The Commission has determined that, in
general, an entity's gross revenues are the best indicator of its
ability to pay a forfeiture. After examining the financial
documentation submitted by Halifax, we agree and reduce the forfeiture
to $8,100 based on its demonstrated inability to pay.
11. We have examined Halifax's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that a reduction of
the proposed forfeiture to $8,100 is warranted, based on demonstrated
inability to pay.
IV. ORDERING CLAUSES
12. 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(f)(4) of the Commission's Rules, Halifax Christian Community
Church, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
eight thousand one hundred dollars ($8,100) for violation of Section
73.845 of the Rules and Section 301 of the Act.
13. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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[s] 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.
Halifax will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Halifax Christian
Community Church, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S: 73.845.
47 U.S.C. S: 301.
Section 15.239 of the Rules provides that non-licensed broadcasting in the
88-108 MHz band is permitted only if the field strength of the
transmission does not exceed 250 mV/m at three meters. 47 C.F.R. S:
15.239. Measurements on April 23, 2007 showed that the field strength of
the station's signal exceeded the permissible level for a non-licensed
Part 15 transmitter by over 905 times.
Use of a non-certified transmitter violates Section 15.201(b) of the
Rules, 47 C.F.R. S: 15.201(b). Thus, even if the transmissions on 92.7 MHz
did not exceed Part 15 limits, Halifax's operation of its transmitter on
92.7 would not be considered a permissible unlicensed use.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832700014
(Enf. Bur., Tampa Office, April 8, 2008) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301.
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,' ... 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).
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
47 C.F.R. S: 73.1745(a).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
gross revenues).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4),
73.845.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1508
2
Federal Communications Commission DA 08-1508