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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Monroe Area Broadcasters, Inc. ) File No. EB-02-AT-092
) NAL/Acct. No. 200232480009
Licensee of Station WRKQ(AM) ) FRN 0003-7200-59
Madisonville, Tennessee )
FORFEITURE ORDER
Adopted: April 3, 2003 Released: April 7, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of nine thousand dollars
($9,000) to Monroe Area Broadcasters, Inc. (``Monroe''),
licensee of Station WRKQ(AM), Madisonville, Tennessee, for
willful and repeated violation of Sections 73.44(b),
73.1201(a)(2) and 73.1745(a) of the Commission's Rules
(``Rules'').1 The noted violations involve Monroe's failure
to adequately attenuate WRKQ's transmission system emissions,
failure to identify WRKQ by call sign, and operation of WRKQ
at night with daytime power.
2. On June 27, 2002, the Commission's Atlanta, Georgia
Field Office (``Atlanta Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Monroe for a forfeiture
in the amount of nine thousand dollars ($9,000).2 Monroe
filed a response to the NAL on July 10, 2002.
II. BACKGROUND
3. On March 21, 2002, the Atlanta Office received two
complaints alleging that WRKQ was not reducing power at sunset
or identifying by call sign, and that WRKQ's transmitter had
spurious emissions which were interfering with the reception
of other stations, including the reception of WWV3 on 2.5 MHz.
WRKQ is licensed to operate on frequency 1250 kHz. Its second
harmonic of 2.5 MHz falls on WWV's authorized frequency of 2.5
MHz.
4. On May 14, 2002, an agent from the Atlanta Office
monitored WRKQ's signal. WRKQ's authorization specifies
daytime power of 500 watts and nighttime power of 84 watts.
Field strength measurements taken by the agent indicated that
WRKQ did not reduce power at sunset as required by the station
authorization. Rather, WRKQ remained at daytime power all
night. In addition, spectrum analyzer measurements of WRKQ's
second harmonic on 2.5 MHz revealed that it was attenuated 55
dB below the unmodulated carrier level. Section 73.44(b) of
the Rules requires attenuation of at least 70 dB for a 500
watt station. The agent also observed that the station failed
to identify by call sign between 7:00 and 10:00 p.m.
5. On May 15, 2002, the agent again monitored WRKQ's
signal. Field strength measurements taken by the agent
indicated that WRKQ did not reduce power at sunset as required
by the station authorization. Rather, WRKQ remained at
daytime power all night. In addition, spectrum analyzer
measurements of WRKQ's second harmonic on 2.5 MHz again
indicated that it was attenuated 55 dB below the unmodulated
carrier level.
6. On May 16, 2002, the agent inspected WRKQ. The agent
spoke with WRKQ's station manager, Delbert Smith, who admitted
that the station was operating with daytime power at night.
Mr. Smith stated that the station had received oral
authorization from an FCC employee to operate with daytime
power at night, but that he had never received any written
authorization to do so. The agent advised Mr. Smith that the
transmitter's second harmonic was not adequately attenuated
and that the station had failed to identify by call sign
during a three-hour period on May 14, 2002.
7. On June 27, 2002, the Atlanta Office issued an NAL for
a $9,000 forfeiture to Monroe for failure to adequately
attenuate WRKQ's transmission system emissions in willful and
repeated violation of Section 73.44(b) of the Rules, failure
to identify WRKQ by call sign in willful and repeated
violation of Section 73.1201(a)(2) of the Rules, and operation
of WRKQ at night with daytime power in willful and repeated
violation of Section 73.1745(a) of the Rules. Monroe filed a
response to the NAL on July 10, 2002. In its response, Monroe
states that the Commission has granted its application to
assign the license for WRKQ to Sloan Radio, Inc. (``Sloan''),
but that Sloan did not have its financing in place to complete
the purchase of the station.4 Monroe asserts that this
situation has kept it from performing some preventive
maintenance. In addition, Monroe states that Mr. Smith is
``leasing'' the station from Monroe, 5but that the station is
in poor financial condition and Mr. Smith is doing the best he
can to operate the station with limited financial resources.
Monroe also provides a letter from Mr. Smith. Mr. Smith
asserts that it would be unfair to impose a forfeiture for the
Section 73.44(b) violation because he was unaware of the
problem until informed of it by the FCC agent on May 16, 2002.
Further, Mr. Smith states that he was unaware that written
authorization from the FCC was required to operate the station
at daytime power 24 hours per day and that he thought that the
station had been identifying by call sign. Finally, Monroe
indicates that all of the violations have been corrected.
III. DISCUSSION
8. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),6 Section 1.80 of the Rules,7 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) (``Policy Statement''). In examining Monroe'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.8
9. Section 73.44(b) of the Rules requires that the
emissions of an AM station that are removed by more than 75
kHz from the carrier be attenuated at least 43 + 10 Log (Power
in watts) or 80 dB below the unmodulated carrier level,
whichever is the lesser attenuation.9 Thus, WRKQ's second
harmonic on 2.5 MHz should be attenuated at least 70 dB below
the unmodulated carrier level. On May 14 and 15, 2002, WRKQ's
second harmonic on 2.5 MHz was attenuated only 55 dB below the
unmodulated carrier level. Mr. Smith asserts that it is
unfair to impose a forfeiture for this violation because he
was unaware of the problem until informed of it by the FCC
agent on May 16, 2002. We disagree. As noted in the NAL, the
Atlanta Office issued a Notice of Violation to Monroe on June
4, 1998 for failing to attenuate its second harmonic emissions
in violation of Section 73.44(b). Moreover, licensees are
expected to know and comply with the Commission's rules.10
Section 73.44(a) of the Rules requires licensees to measure
their emissions to ensure compliance with Section 73.44(b).
In addition, Section 73.1590 of the Rules requires AM
licensees to make measurements for spurious and harmonic
emissions on an annual basis to demonstrate compliance with
the transmission system requirements of Section 73.44.11
Neither Monroe nor Mr. Smith offer any evidence that
measurements were taken to ensure that WRKQ was in compliance
with Section 73.44(b). Therefore, we conclude that Monroe
willfully12 and repeatedly13 violated Section 73.44(b) of the
Rules.14
10. Section 73.1201(a)(2) of the Rules requires broadcast
stations to identify by call sign hourly, as close to the hour
as possible, at a natural break in programming. WRKQ failed
to identify by call sign during a three-hour period from 7:00
to 10:00 p.m. on May 14, 2002. Although Mr. Smith states that
he thought the station was identifying by call sign, he offers
no evidence of what, if any, steps were taken to ensure that
WRKQ complied with the identification requirement. We
accordingly conclude that Monroe willfully and repeatedly
violated Section 73.1201(a)(2).
11. Section 73.1745(a) of the Rules provides that no
broadcast station shall operate at times, or with modes or
power, other than those specified in and made a part of the
license. The license for WRKQ specifies 500 watts daytime
power and 84 watts nighttime power. On May 14 and 15, 2002,
WRKQ did not reduce power at sunset as required in its station
authorization, but instead operated with daytime power all
night. Mr. Smith maintains that he received oral
authorization to operate WRKQ with daytime power all night and
that he was not aware that written authorization from the FCC
was required to operate the station at daytime power 24 hours
per day. However, the Media Bureau's Audio Services Division
has assured us that it does not grant oral authorizations for
AM stations to operate with daytime power at night.
Furthermore, Section 73.1745(a) clearly prohibits stations
from operating at power other than that specified in and made
part of the license and there is no dispute that Mr. Smith
knew at what power the station was operating. Accordingly, we
conclude that Monroe willfully and repeatedly violated Section
73.1745(a).
12. Monroe asserts that the station is in poor financial
condition. However, as stated in the NAL, 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; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's
current financial status. Monroe provided no financial
documentation with its response to the NAL and therefore we
have no basis upon which to evaluate its ability to pay the
forfeiture. Finally, although Monroe indicates that all of
the violations have been corrected, the Commission has
repeatedly stated that remedial actions taken to correct a
violation are not mitigating factors warranting reduction of a
forfeiture.15
13. We have examined Monroe's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Monroe willfully and repeatedly violated
Sections 73.44(b), 73.1201(a)(2) and 73.1745(a) of the Rules,
and we find no basis to rescind or reduce the $9,000
forfeiture proposed for these violations.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,16 Monroe Area Broadcasters, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of nine thousand dollars
($9,000) for willful and repeated violations of Sections
73.44(b), 73.1201(a)(2) and 73.1745(a) of the Rules.
15. 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.17 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232480009 and FRN
0003-7200-59. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.18
16. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to Monroe Area Broadcasters, Inc., P.O. Box 489,
Madisonville, Tennessee 37354.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 73.44(b), 73.1201(a)(2) and 73.1745(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480009 (Enf. Bur., Atlanta Office, released June 27, 2002).
3 WWV is licensed to the National Bureau of Standards and is
used for time synchronization.
4 The Commission staff granted Monroe's application to assign
the license for WRKQ to Sloan on February 26, 2002. File No.
BAL-20020107AAB. This assignment has not been consummated.
5 We take no view at this point whether there may have been an
unauthorized transfer of control of the station.
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 Failure of an AM station to attenuate its second harmonic
emissions as required by Section 73.44(b) can result in
interference to other stations.
10 Sitka Broadcasting Company, Inc., 70 FCC 2d 2375, 2378
(1979), citing Lowndes County Broadcasting Company, 23 FCC 2d 91
(1970) and Emporium Broadcasting Company, 23 FCC 2d 868 (1970).
11 47 C.F.R. § 73.1590.
12 Section 312(f)(1) of the Act, 47 U.S.C. § 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).
13 Section 312(f)(2) of the Act provides that ``[t]he term
`repeated,' ... 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. § 312(f)(2).
14 We note that Monroe, as licensee of WRKQ, is responsible
for the violations cited in the NAL notwithstanding that Mr.
Smith may be acting as Monroe's agent. In this regard, licensees
are responsible for the acts and omissions of their employees and
contractors. See Eure Family Limited Partnership, 17 FCC Rcd
21861 (2002); MTD, Inc., 6 FCC Rcd 34, 35 (1991); Wagenvoord
Broadcasting Co., 35 FCC 2d 361 (1972).
15 See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 U.S.C. § 504(a).
18 See 47 C.F.R. § 1.1914.