**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+-------------------------------------+---+-----------------------------+
| In the Matter of                    | ) | File Number EB-02-AT-071    |
|                                     |   |                             |
| Atlantic Beach Radio, Inc.          | ) | NAL/Acct. No.200232480007   |
|                                     |   |                             |
| Licensee of Radio Station WMIR(AM), | ) | FRN 0006-1248-87            |
|                                     |   |                             |
| Atlantic Beach, SC                  | ) |                             |
|                                     |   |                             |
|                                     | ) |                             |
+-------------------------------------+---+-----------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released:** June 24, 2002

By the Enforcement Bureau, Atlanta Office:

**I.** **INTRODUCTION**

1.  In this *Notice of Apparent Liability for Forfeiture*, we find that
    Atlantic Beach Radio, Inc. ("Atlantic"), licensee of Radio Station
    WMIR(AM), Atlantic Beach, South Carolina, willfully and repeatedly
    violated Sections 11.35 and 73.1745 of the Commission\'s Rules
    ("Rules"),[^1] by failing to maintain operational Emergency Alert
    System ("EAS") equipment and by operating with excessive power at
    night in violation of the terms of station authorization. We find
    Atlantic Beach Radio, Inc. apparently liable for forfeiture in the
    amount of twelve thousand dollars (\$12,000).

**II. BACKGROUND**

2.  On May 6 and 7, 2002, an agent of the FCC Enforcement Bureau's
    Atlanta Office ("Atlanta Office") monitored WMIR(AM)'s signal from
    before sunset, through sundown, and into the nighttime hours. The
    agent conducted field strength measurements of the station's signal
    during this time period and determined that WMIR(AM) failed to
    reduce power to its licensed nighttime power of 11 watts at sunset,
    8:15 p.m. eastern daylight savings time and remained on daytime
    power (6.5 kilowatts) throughout nighttime hours.

3.  On May 8, 2002, the agent inspected the EAS system of WMIR(AM). The
    inspection was conducted with Mr. Reggie Dyson, Station Manager. Mr.
    Dyson showed the agent a Gorman Redlich EAS encoder/decoder in the
    studio, however the equipment was not hooked up and there were no
    receivers connected to the unit. There were no EAS logs to
    demonstrate that the EAS unit had recently been taken out of service
    for repairs or any other evidence that the EAS unit had ever been
    installed and operational. Mr. Dyson said that the station had been
    sharing an EAS unit with the station WKVC(FM), North Myrtle Beach,
    SC, with studios located in the same building. Mr. Dyson had no logs
    to corroborate his statements.

4.  Still on May 8, 2002, during the same inspection, the agent notified
    Mr. Dyson that he observed that the station did not reduce power on
    the evenings of May 6 and 7, 2002. Mr. Dyson stated that the
    transmitter was on a timer and that the transmitter should have
    powered down to nighttime power automatically. Mr. Dyson stated that
    the station engineer was out of town, however, he would make sure he
    was notified and get instructions on how to reduce the station's
    power.

5.  Still on the evening of May 8, 2002, the agent conducted field
    strength measurements and determined that, although the station had
    reduced power at local sunset, the station's power level far
    exceeded the 11 watts nighttime power that the station was
    authorized.

6.  During the week of May 15 through 21, 2002, the agent held telephone
    conversations with WMIR(AM)'s station engineer. The engineer stated
    that WMIR(AM) shared a Sage EAS unit with another station, WKVC(FM),
    located in the same building. He said that the Sage unit was removed
    from the WKVC(FM) studio about a month prior to the agent's
    inspection and the unconnected Gorman Redlich EAS unit the agent
    found in WMIR(AM)'s studio was purchased at that time.

7.  During the same telephone conversations, the engineer stated that he
    discovered that the automatic control unit used to power down the
    station at sunset had been damaged resulting in the station's
    failure to reduce power on the evenings of May 6 and 7, 2002 and
    remaining on full daytime power. He also stated that the failure to
    fully reduce power on the evening of May 8, 2002 was due to operator
    error.

**III**. **DISCUSSION**

8.  Section 11.35 of the Rules requires that broadcast stations maintain
    operational EAS encoders, decoders and attention signal generating
    equipment and receiving equipment so that monitoring and
    transmitting functions are available during times the stations are
    in operation. On May 8, 2002, the Gorman Redlich EAS unit at the
    WMIR(AM)'s studio was not operational and there were no EAS logs to
    demonstrate that the station had ever had operational EAS equipment
    or that the EAS equipment had been taken out of service for
    repair.[^2] Atlantic admitted that the station had purchased, but
    not installed, EAS equipment about one month prior to the
    inspection.

9.  Section 11.51(j) of the Rules states that "\[b\]roadcast stations,
    and cable systems and wireless cable systems that are co-owned and
    co-located with a combined studio or control facility, (such as an
    AM and FM licensed to the same entity and at the same location or a
    cable headend serving more than one system) may provide the EAS
    transmitting requirements contained in this section for the combined
    stations or cable systems or wireless cable systems with one EAS
    Encoder." Although the station manager and engineer stated that
    WMIR(AM) had shared a Sage EAS unit with WKVC(FM) up to a month
    prior to inspection, Commission records indicate that the stations
    are [not]{.underline} co-owned and are [not]{.underline} licensed to
    the same community. Moreover, there was no evidence that the
    stations had a combined studio or control facility and there were no
    logs to demonstrate that WMIR(AM) had ever sent or received an EAS
    test or alert.

10. Section 73.1745 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." WMIR(AM) failed to reduce power to nighttime power
    and remained on full daytime power on the evenings of May 6 and
    7, 2002. Still, on May 8, 2002, after being verbally warned about
    the failure to reduce power the previous two evenings, the station
    reduced power to an intermediate power level, but it never fully
    reduced power to the licensed power of 11 watts. Although the
    failure to reduce power on two evenings was reportedly due to
    equipment failure and then on the third evening operator error, it
    is still the responsibility of licensees to ensure proper station
    operation. It is also the licensee responsibility to establish
    monitoring procedures, routinely inspect any automatic transmission
    control equipment, train operating personnel to properly make
    transmitter adjustments and maintain pertinent station logs.[^3]

11. Based on the evidence before us, we find that Atlantic Beach Radio,
    Inc. willfully[^4] violated Sections 11.35 and 73.1745 of the Rules
    by failing to maintain operational EAS equipment and by operating
    with excessive power during nighttime hours in violation of the
    terms of station authorization. These violations are repeated[^5] in
    that they occurred on more than one day.

12. Pursuant to Section 1.80(b)(4) of the Rules,[^6] the base forfeiture
    amount for failure to maintain operational EAS equipment is \$8,000,
    and for operation with excessive power is \$4,000. In assessing the
    monetary forfeiture amount, we must also take into account the
    statutory factors set forth in Section 503(b)(2)(D) of the
    Communications Act of 1934, as amended ("Act"), which include 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] Considering the entire record and applying the
    factors listed above, this case warrants a \$12,000 forfeiture.

**IV. ORDERING CLAUSES**

13. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act,[^8] and Sections 0.111, 0.311 and 1.80 of the Rules,[^9]
    Atlantic Beach Radio, Inc. is hereby NOTIFIED of its APPARENT
    LIABILITY FOR A FORFEITURE in the amount of twelve thousand dollars
    (\$12,000) for willful and repeated violation of Sections 11.35 and
    73.1745 of the Rules, by failing to maintain operational EAS
    equipment and failing to reduce power to nighttime power in
    violation of the terms of station authorization.

14. 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*, Atlantic Beach Radio, Inc. SHALL PAY
    the full amount of the proposed forfeiture or SHALL FILE a written
    statement seeking reduction or cancellation of the proposed
    forfeiture.

15. Payment of the forfeiture may be made by mailing a check or similar
    instrument, payable to the order of the Federal Communications
    Commission, to the Forfeiture Collection Section, Finance Branch,
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL/Acct. No. and FRN
    referenced above. Requests for payment of the full amount of this
    *Notice of Apparent Liability* under an installment plan should be
    sent to: Chief, Credit and Debt Management Center, 445 12th Street,
    S.W., Washington, D.C. 20554.[^10]

16. The response, if any, must be mailed to Federal Communications
    Commission, Office of the Secretary, 445 12^th^ Street SW,
    Washington DC 20554, Attn: Enforcement Bureau-Technical & Public
    Safety Division and MUST INCLUDE THE NAL/Acct. No. referenced above.

17. 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.

18. IT IS FURTHER ORDERED THAT a copy of this *Notice Of Apparent
    Liability* shall be sent by regular mail and Certified Mail Return
    Receipt Requested to Atlantic Beach Radio, Inc., c/o Putbrese,
    Hunsaker & Trent, P.O. Box 217, Sterling, VA 20167.

FEDERAL COMMUNICATIONS COMMISSION

Fred L. Broce

###  District Director

Atlanta Office

[^1]: 47 C.F.R §§ 11.35 and 73.1745.

[^2]: *See* 47 C.F.R. §§ 11.35(a)-(b).

[^3]: *See* 47 C.F.R. §§ 73.1350 and 73.1400.

[^4]: 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', 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
    ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^5]: The term "repeated" means the commission or omission of an act
    more than once or, if such commission or omission is continuous, for
    more than one day. 47 U.S.C. § 312(f)(2).

[^6]: 47 C.F.R. § 1.80(b)(4).

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 47 U.S.C. § 503(b).

[^9]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^10]: *See* 47 C.F.R. § 1.1914.