**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-02-DT-1240       |
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| ) File No. EB-03-TP-231          | ) | ) FRN 0007006884             |
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| WSJM, Inc. )                     | * | NAL/Acct. No. 200332360005   |
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| ) NAL/Acct. No. 200332700030     | * | FRN 0007171432               |
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| Licensee of AM Radio Station     | ) |                              |
| WGMY, )                          | * |                              |
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| South Haven, Michigan ) FRN      |   |                              |
| 0007006884                       | * |                              |
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**FORFEITURE ORDER**

**Adopted: September 8, 2004 Released: September 10, 2004**

By the Chief, Enforcement Bureau:

# I. introduction {#i.-introduction .unnumbered}

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of twelve thousand eight hundred dollars
    (\$12,800) to WSJM, Inc. ("WSJM"), licensee of Station WGMY (AM),
    South Haven, Michigan, for willful violation of numerous sections of
    the Commission's Rules ("Rules"). The noted violations involve,
    respectively: 1) failure to maintain required records, in violation
    of Sections 73.1820(a)(1)(i), 73.1820(a)(1)(iii) and 73.1870(c)(3)
    of the Rules;[^1] 2) failure to make required measurements or
    conduct required monitoring regarding EAS monitoring sources, EAS
    tests, and observation of antenna structures' lights, in violation
    of Sections 11.52(d), 11.61(a)(2)(i)(A) and 17.47(a)(1);[^2] 3)
    failure to file required forms or information regarding the
    registration of two antenna structures, in violation of Section
    17.4(a);[^3] and 4) failure to exhibit red obstruction lighting from
    sunset to sunrise, in violation of Section 17.51(a).[^4]

    **II. BACKGROUND**

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2.  On September 23, 2002, the Commission's Detroit Office received
    information that the top flashing obstruction lights on each of two
    antenna structures and the side lights on one of the two antenna
    structures located at the corner of Wells and Dunkey Streets in
    South Haven, Michigan had not been operating for two months. The
    Detroit Office searched the Antenna Structure Registration database
    and did not find any registered structures in the area reported. The
    Detroit Office requested that the South Haven Police Department
    observe the antenna structure lights after sunset to determine if
    the complaint was still valid.

3.  On September 24, 2002, the South Haven Police Department confirmed
    the antenna structure light outages. An agent from the Detroit
    Office contacted the Federal Aviation Administration ("FAA"), which
    notified WSJM of the light outage report and issued a Notice to
    Airmen ("NOTAM").

4.  On November 20, 2002, agents from the Detroit Office conducted an
    inspection of WSJM's antenna structures. The agents determined that
    all required structure lighting was operational at that time, but
    found that no Antenna Structure Registration Numbers were posted. On
    November 21, 2002, agents from the Detroit Office conducted an
    additional inspection, and found numerous violations of the
    Commission's Rules. On December 5, 2002, the Detroit Office issued a
    Notice of Violation ("*NOV*") to WSJM for these rule violations. On
    December 16, 2002, the Detroit Office received a reply which
    indicated the corrective steps that WSJM had instituted in response
    to the *NOV*.

5.  On April 17, 2003, the Detroit Office issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") to WSJM, finding that the
    station willfully[^5] and repeatedly[^6] violated the Commission's
    Rules, and proposed a forfeiture in the amount of nineteen thousand
    dollars (\$19,000).[^7] In particular, the Detroit Office determined
    that WSJM had failed to maintain required records, in violation of
    Sections 73.1820(a)(1)(i), 73.1820(a)(1)(iii) and 73.1870(c)(3) of
    the Rules; that it had failed to make required measurements or
    conduct required monitoring regarding EAS monitoring sources, EAS
    tests, and observation of antenna structures' lights, in violation
    of Sections 11.52(d), 11.61(a)(2)(i)(A) and 17.47(a)(1); that it had
    failed to file required forms or information regarding the
    registration of two antenna structures, in violation of Section
    17.4(a); and that it had failed to exhibit red obstruction lighting
    from sunset to sunrise, in violation of Section 17.51(a).

6.  WSJM filed a response to the *NAL* on May 19, 2003. In its response,
    WSJM does not dispute the *NAL*'s findings. Nevertheless, as
    detailed below, WSJM seeks a reduction of the proposed forfeiture,
    based on its arguments that: 1) it instituted prompt remedial action
    to correct the violations; 2) its failure to register each of its
    antenna structures resulted from a "single mistake of fact" by its
    chief engineer; 3) WSJM was only monitoring one EAS source because
    an antenna from one of its EAS monitors had become dislodged; and 4)
    the station has a history of overall compliance with the
    Commission's Rules.

#  discussion

7.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^8] Section 1.80 of the Rules,[^9] 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 WSJM'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.[^10]

8.  As stated above, WSJM does not dispute the *NAL*'s conclusion that
    WSJM violated the Commission's rules. Instead, WSJM seeks reduction
    of the proposed forfeiture, first on the basis that it took prompt
    action to correct all of the violations noted in the Detroit
    Office's *NAL.* For example, with regard to its proposed forfeiture
    for failure to comply with prescribed antenna structure lighting in
    violation of Section 17.51(a) of the Rules, WSJM concedes that the
    lights were out on two of its antenna structures "at some previous
    point," but insists that it took steps to repair the lights
    "immediately upon being notified of the outage," and that the lights
    were repaired and operational when the inspection occurred.[^11]
    WSJM's remedial actions, however, to correct promptly violations
    *after* they have been identified by a Commission agent are
    expected, and do not warrant a reduction in the forfeiture
    amount.[^12]

9.  WSJM also requests a reduction of the proposed forfeiture on the
    basis that its failure to register each of its two antenna
    structures in violation of Section 17.4(a) of the Rules stemmed from
    a "single mistake of fact" by its chief engineer. According to WSJM,
    its chief engineer mistakenly believed that the structures were less
    than 200 feet in height, and therefore, were below the threshold
    required to register the structures as obstructions. WSJM further
    argues that because the two structures are located at the same site
    and are part of a directional array, the Detroit Office should have
    levied a fine for only one antenna structure registration violation.
    It is well-established that WSJM, as a licensee, is accountable for
    its chief engineer's errors and ultimately, is responsible for
    compliance with the Commission's requirements.[^13] Nevertheless, we
    agree that, because the two antenna structures are located at the
    same site, it is appropriate to deal with WSJM's error as a single
    registration violation. Accordingly, we reduce the total forfeiture
    amount by three thousand dollars (\$3,000).

10. WSJM also argues that at the time of the Detroit Office's
    inspection, it was only monitoring one EAS source (instead of the
    requisite two sources) because an antenna for one of its EAS
    monitors had become dislodged without its knowledge. According to
    WSJM, the proposed forfeiture for violation of Section 11.52(d) of
    the Rules should be reduced because WSJM was unaware of the problem
    with the antenna, and reinstalled it immediately upon discovery of
    the violation. We disagree. As noted above, WSJM, as a licensee, is
    responsible for ensuring compliance with the Commission's
    Rules,[^14] including the requirement that the station monitor two
    EAS sources. Further, WSJM should have been receiving and logging
    EAS tests from both EAS sources and thus, should have been aware
    that it was not receiving the second source. That WSJM may have
    overlooked a dislodged antenna does not mitigate or excuse WSJM's
    violations, and thus we do not find that reduction of the proposed
    forfeiture amount is warranted on this basis.

11. Finally, WSJM contends that the proposed forfeiture should be
    reduced in light of its overall history of compliance with the
    Commission's Rules. After considering WSJM's record of compliance,
    we conclude that although WSJM willfully[^15] violated the
    Commission's Rules, a reduction of the remaining forfeiture amount
    (sixteen thousand dollars (\$16,000) as reduced) to twelve thousand
    eight hundred dollars (\$12,800) is appropriate.[^16]

#  ordering clauses

12. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^17]
    WSJM, Inc.. **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
    twelve thousand eight hundred dollars (\$12,800) for willfully
    violating Sections 11.52(d), 11.61(a)(2)(i)(A), 17.4(a),
    17.47(a)(1), 17.51(a), 73.1820(a)(1)(i), 73.1820(a)(1)(iii), and
    73.1870(c)(3) of the Commission's Rules.

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.[^18] Payment of the
    forfeiture may be made by check or similar instrument, payable to
    the order of the Federal Communications Commission. The payment must
    include the NAL/Acct. No. and FCC Registration Number ("FRN")
    referenced above. Payment by check or money order may be mailed to
    Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. Payment by overnight mail may be sent to Bank One/LB
    73482, 525 West Monroe, 8^th^ Floor Mailroom, Chicago,
    Illinois 60661. Payment by wire transfer may be made to ABA Number
    071000013, receiving bank "Bank One," account number 1165259.
    Requests for full payment under an installment plan should be sent
    to: Chief, Revenue and Receivables Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^19]

14. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by Certified Mail Return Receipt Requested and by First Class Mail
    to Mr. Gayle Olson, President/General Manager, WSJM, Inc., P.O. Box
    107, St. Joseph, MI, 49085, and to WSJM, Inc.'s attorneys, David D.
    Oxenford, Esquire, and Paul A. Cicelski, Esquire, of Shaw Pittman
    LLP, 2300 N Street, N.W., Washington, D.C. 20037-1128.

    **FEDERAL COMMUNICATIONS COMMISSION**

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 1820(a)(1)(i ), 73.1820(a)(1)(iii) and 73.1870(c)(3).

[^2]: 47 C.F.R. §§ 11.52(d), 11.61(a)(2)(i)(A) and 17.47(a)(1).

[^3]: 47 C.F.R. § 17.4(a).

[^4]: 47 C.F.R. § 17.51(a).

[^5]: Section 312(f)(1) of the Act, 47 U.S.C. 312(f)(1), which applies
    to 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,
    4388 (1991).

[^6]: As provided by 47 U.S.C. § 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. 97^th^ 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).

[^7]: *See* *Notice of Apparent Liability for Forfeiture*, NAL/Acct.
    200332360005 (Enf. Bur., Detroit Office, released April 17, 2003).

[^8]: 47 U.S.C. § 503(b).

[^9]: 47 C.F.R. § 1.80.

[^10]: 47 U.S.C. § 503(b)(2)(D).

[^11]: Based on the record, WSJM was first notified of the light outages
    because an agent from the Commission's Detroit Office contacted the
    Federal Aviation Administration, which in turn notified WSJM of the
    outage report and issued a NOTAM. *See* ¶ 3, *supra*.

[^12]: *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).

[^13]: *See, e.g., Odino Joseph*, 18 FCC Rcd 16522, 16524 ¶ 8 (Enf. Bur.
    2003); *South Central Communications Corp.,* 18 FCC Rcd 700, 702-03
    ¶ 9 (Enf. Bur. 2003).

[^14]: *See* note 13, *supra*.

[^15]: While the *NAL* also concluded that WSJM's violations were
    "repeated," we need not address that finding in light of the willful
    nature of WSJM's admitted violations. *See, e.g., Southern
    Broadcasting Co.,* 6 FCC Rcd 4387, 4388 (1991) (in issuing a
    forfeiture pursuant to 47 U.S.C. § 503(b) of the Act, we are only
    required to find either a "willful" or "repeated" violation). *See
    also* note 5, *supra*.

[^16]: *See* *Max Media of* Montana, 18 FCC Rcd 21375, 21378 (Enf. Bur.
    2003) (finding that a licensee's history of compliance with
    Commission regulations warranted a reduction of the proposed
    forfeiture); *see also* *South Central Communications Corp.,* 18 FCC
    Rcd 700, 701, 703 ¶¶ 6, 9 (Enf. Bur. 2003).

[^17]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^18]: 47 U.S.C. § 504(a).

[^19]: *See* 47 C.F.R. § 1.1914.