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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No.: EB-11-OR-0142
Debut Broadcasting Mississippi, Inc. ) NAL/Acct. No.: 201232620004
Former Licensee of Stations WLTM-FM ) FRN: 0016869919
and WNIX-AM
) Facility ID Nos.: 25229,
Greenville, Mississippi 66328
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 1, 2012 Released: August 1, 2012
By the District Director, New Orleans Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Debut Broadcasting Mississippi, Inc. (Debut Broadcasting), former
licensee of Stations WLTM-FM and WNIX-AM, in Greenville, Mississippi,
apparently willfully and repeatedly violated Sections 11.35 and
73.1745(a) of the Commission's rules (Rules) by failing to (1)
maintain operational emergency alert system (EAS) equipment, (2)
maintain EAS logs, and (3) operate in a mode and power authorized by
its license. We conclude that Debut Broadcasting is apparently liable
for a forfeiture in the amount of fifteen thousand dollars ($15,000).
II. BACKGROUND
2. Station WNIX-AM is authorized to operate at 1000 watts during the day
and with reduced power in a directional mode at night. On November 7
and 8, 2011, in response to a complaint of overpower nighttime
operations, agents from the Enforcement Bureau's New Orleans Office
(New Orleans Office) monitored the field strength of Station WNIX-AM's
transmissions before and after sunset. The agents observed no
noticeable change in field strength on either day. On November 9,
2011, agents conducted inspections of co-located Stations WLTM-FM and
WNIX-AM, accompanied by Debut Broadcasting's former and now Delta's
current operations manager. The agents observed that Station WNIX-AM
was operating with daytime power. The operations manager admitted that
Station WNIX-AM's equipment was not functioning properly and was not
capable of switching to nighttime mode and power. During the
inspection, the agents also observed that Stations WLTM-FM and WNIX-AM
were sharing EAS equipment with a third co-owned and co-located
station. The equipment that switched the EAS equipment to Stations
WLTM-FM and WNIX-AM, however, was malfunctioning, thereby leaving
Stations WLTM-FM and WNIX-AM with no operational EAS equipment. The
operations manager admitted that it had been "some time" since the
switching equipment worked and since Stations WLTM-FM and WNIX-AM had
operational EAS equipment. Neither station maintained any EAS logs
documenting when the EAS equipment was last operational.
III. DISCUSSION
3. Section 503(b) of the Communications Act of 1934, as amended (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. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission may
also assess a forfeiture for violations that are merely repeated, and
not willful. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
A. Failure to Maintain Operational Emergency Alert System and EAS logs
4. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source. The EAS enables
the President and state and local governments to provide immediate
communications and information to the general public. State and local
area plans identify local primary sources responsible for coordinating
carriage of common emergency messages from the sources such as the
National Weather Service or local emergency management officials.
Required monthly and weekly tests originate from EAS Local or State
Primary sources and must be retransmitted by the participating
station. As the nation's emergency warning system, the EAS is critical
to public safety, and we recognize the vital role that broadcasters
play in ensuring its success. The Commission takes seriously any
violations of the Rules implementing the EAS and expects full
compliance from its licensees.
5. 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. Section 11.35(b) of the Rules
states that "[i]f the EAS Encoder or EAS Decoder becomes defective,
... [e]ntries shall be made in the broadcast station log . . . showing
the date and time the equipment was removed and restored to service."
Section 11.51(l) of the Rules allows co-located and co-owned stations
to provide the EAS transmitting requirements for the combined stations
with one EAS encoder. On November 9, 2011, agents from the New Orleans
Office observed that the switching equipment which allowed Stations
WLTM-FM and WNIX-AM to share a third co-located and co-owned station's
EAS equipment was malfunctioning, thereby leaving Stations WLTM-FM and
WNIX-AM with no EAS functionality. Neither station maintained any EAS
logs and neither could document when its EAS equipment was last
operational. Based on the evidence before us, we find that Debut
Broadcasting apparently willfully and repeatedly violated Section
11.35 of the Rules by failing to maintain operational EAS equipment
and EAS logs.
B. Failure to Operate within Parameters of License
6. Section 73.1745(a) of the Rules states that "[n]o 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 WNIX-AM is required to reduce power and switch to
a directional mode at night. On November 7 and 8, 2011, agents from
the New Orleans Office monitored Station WNIX-AM and observed that the
measured field strength of its signals did not change after sunset. On
November 9, 2011, agents from the New Orleans Office observed that
Station WNIX-AM was operating in daytime mode with full power. The
agents also learned from the operations manager that Station WNIX-AM
was incapable of switching to nighttime mode and power. Thus, Station
WNIX-AM did not reduce its power nor switch its directional pattern at
night. Based on the evidence before us, we find that Debut
Broadcasting apparently willfully and repeatedly violated Section
73.1745(a) of the Rules by operating with daytime power and in daytime
mode at night.
C. Proposed Forfeiture Amount
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failure to maintain
directional pattern within prescribed parameters is $7,000 and for EAS
equipment not installed or operational 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, any 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 Debut Broadcasting is apparently liable
for a total forfeiture in the amount of $15,000, consisting of the
following: $8,000 for EAS violations and $7,000 for operating with
daytime power and in daytime mode at night.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Debut Broadcasting
Mississippi, Inc. 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 and 73.1745(a) of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Debut
Broadcasting Mississippi, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Debut Broadcasting Mississippi, Inc. shall
also send electronic notification on the date said payment is made to
SCR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
11. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
12. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, New Orleans Office, 2424 Edenborn Ave., Suite 460,
Metairie, LA 70001, and include the NAL/Acct. No. referenced in the
caption. Debut Broadcasting Mississippi, Inc. also shall email the
written response to SCR-Response@fcc.gov.
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 both Certified Mail, Return Receipt
Requested, and First Class Mail to Debut Broadcasting Mississippi,
Inc. at 1011 Cherry Ave., Suite B, Nashville, TN 37203.
FEDERAL COMMUNICATIONS COMMISSION
Walter Gernon
District Director
New Orleans
South Central Region
Enforcement Bureau
The assignment of Stations WNIX-AM and WLTM-FM from Debut Broadcasting to
Delta Radio Network, LLC (Delta) was consummated December 21, 2011. See
License File No. BAL-20110808ADB.
47 C.F.R. S:S: 11.35, 73.1745(a).
See License File No. BLH-20070525ADY.
On November 7 and 8, 2011, sunset in Greenville, Mississippi was at 5:08
p.m. and 5:07 p.m., respectively.
See 47 C.F.R. 11.51(l) (allowing co-owned and co-located stations to meet
EAS transmitting requirements with one EAS encoder).
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S:S: 11.11, 11.41.
47 C.F.R. S:S: 11.1, 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
sources. 47 C.F.R. S: 11.21.
47 C.F.R. S: 11.35(a).
47 C.F.R. S: 11.35(b).
47 C.F.R. S: 11.51(l).
47 C.F.R. S: 73.1745(a).
See License File No. BLH-20070525ADY.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. 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, 0.204, 0.311, 0.314, 1.80,
11.35, 73.1745(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
Federal Communications Commission DA 12-1222
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Federal Communications Commission DA 12-1222