**Before the**

## Federal Communications Commission {#federal-communications-commission .unnumbered}

## Washington, D.C. 20554 {#washington-d.c.-20554 .unnumbered}

**In the Matter of** )

> ) File No. EB-02-DT-1240

WSJM, Inc. )

Radio Station WGMY ) NAL/Acct. No. 200332360005

South Haven, Michigan )

) FRN: 0007 1714 32

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Released: April 17, 2003

By the District Director, Detroit Office, Enforcement Bureau:

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

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that WSJM, Inc., ("WSJM"), licensee of radio station WGMY,
    South Haven, Michigan, has apparently violated 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
    ("Rules")[^1]. Respectively, these sections require that the station
    monitor two EAS sources specified in the State EAS Plan; conduct
    tests of the EAS header and EOM codes at least once a week at random
    days and times; register the two antenna structures; observe the
    antenna structure's lights at least once each 24 hours either
    visually or by observing an automatic indicator to insure that all
    lights are functioning properly; exhibit all red obstruction
    lighting from sunset to sunrise; make log entries concerning any
    observed or otherwise known extinguishment or improper functioning
    of a tower light; make entries of each test and activation of the
    Emergency Alert System (EAS); and make log entries concerning the
    Chief operator's review of the station records at least once each
    week. We conclude that WSJM is apparently liable for a forfeiture in
    the amount of nineteen thousand dollars (\$19,000).

## BACKGROUND

2.  On September 23, 2002, the Detroit Office received information
    indicating that the two 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 were not operating for two months. A search of
    the Antenna Structure Registration database did not contain any
    registered structures in the area reported. A check of the AM
    broadcast band database showed that a two tower directional license
    was assigned to WSJM, Inc. The South Haven Police department was
    contacted and requested to observe the tower lights after sunset to
    determine if the complaint was still valid.

3.  On September 24, 2002, the Detroit Office received a telephonic
    report from the South Haven Police department confirming the tower
    light outages. An agent contacted the FAA, who subsequently notified
    WSJM, Inc. of the tower light outage report and then issued a Notice
    to Airmen (NOTAM).

4.  On November 20, 2002, agents from the Detroit Office conducted an
    inspection of WGMY's antenna structures. No Antenna Structure
    Registration Numbers were posted and all required structure lighting
    was operational. On November 21, 2002, the agents inspected WGMY
    with studios located at 510 Williams Street, South Haven, Michigan
    and at the main office located at 580 E. Napier, Benton Harbor,
    Michigan.

5.  As a result of the inspection of WGMY, the agents found several
    violations of FCC Rules, including failure to maintain a copy of the
    Emergency Alert System (EAS) Operating Handbook, failure to monitor
    two EAS sources specified in the State EAS Plan; failure to conduct
    tests of the EAS header and EOM codes at least once a week at random
    days and times for seven weeks during the period of September 1,
    2002 to November 2, 2002; failure to register the two antenna
    structures; failure to observe the antenna structure's lights at
    least once each 24 hours either visually or by observing an
    automatic indicator to insure that all lights are functioning
    properly from at least September 18, 2002 to September 24, 2002;
    failure to report the tower light outages and repairs to the Federal
    Aviation Administration from at least September 18, 2002 to November
    21, 2002; failure to exhibit all red obstruction lighting from
    sunset to sunrise from at least September 18, 2002 to September 24,
    2002; failure to make log entries concerning any observed or
    otherwise known extinguishment or improper functioning of a tower
    light from at least September 18, 2002 to September 24, 2002;
    failure to make entries of each test and activation of the Emergency
    Alert System (EAS) for four weeks for the local primary station and
    eleven weeks for the alternate local primary station during the
    period of September 1, 2002 to November 21, 2002; and failure to
    make log entries concerning the chief operator's review of the
    station records at least once each week.

6.  On December 5, 2002, the FCC's Detroit Office issued a Notice of
    Violation to WGMY for the FCC Rule violations.

7.  On December 16, 2002, the FCC's Detroit Office received a reply
    dated December 13, 2002 indicating the corrective steps instituted
    by WSJM, Inc.

```{=html}
<!-- -->
```
II. **DISCUSSION**

```{=html}
<!-- -->
```
8.  Section 11.52(d) requires that the station monitor two EAS sources
    specified in the State EAS Plan. Section 11.61(a)(2)(i)(A) requires
    that the station conduct tests of the EAS header and EOM codes at
    least once a week at random days and times. Section 17.4(a) requires
    that antenna structures that have been assigned painting or lighting
    requirements be registered with the Commission. Section 17.47(a)(1)
    requires that antenna structures which have been assigned lighting
    specifications shall make an observation of the antenna structure's
    lights at least once each 24 hours either visually or by observing
    an automatic properly maintained indicator designed to register any
    failure of such lights. Section 17.51(a) requires that all red
    obstruction lighting be exhibited from sunset to sunrise. Section
    73.1820(a)(1)(i) requires that log entries be made of any observed
    or otherwise known extinguishment or improper functioning of a tower
    light. Section 73.1820(a)(1)(iii) requires that log entries be made
    of each test and activation of the Emergency Alert System (EAS).
    Section 73.1870(c)(3) requires that the chief operator make log
    entries concerning the review of the station records at least once
    each week.

9.  Based on the evidence before us, we find that WSJM willfully[^2] and
    repeatedly[^3] violated Sections 73.1820(a)(1)(i),
    73.1820(a)(1)(iii) and 73.1870(c)(3) for failure to maintain
    required records; Sections 11.52(d), 11.61(a)(2)(i)(A), and
    17.47(a)(1) for failure to make required measurements or conduct
    required monitoring regarding EAS monitoring sources, EAS tests, and
    observation of the antenna structure's lights; Sections 17.4(a) for
    failure to file required forms or information regarding the
    registration of the two antenna structures; and Section 17.51(a) for
    failure to comply with prescribed lighting and/or marking. *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC
    Rcd 17087, 17113 (1997), *recon. denied*, 15 FCC Rcd 303(1999)
    ("*Forfeiture Policy Statement*")[^4], sets the base forfeiture
    amount at \$1,000 for failing to maintain required records, \$2,000
    for failure to make required measurements or conduct required
    monitoring, \$3,000 each (two towers) for failure to file required
    forms or information for the two antenna structures and \$10,000 for
    failure to comply with prescribed lighting and/or marking. In
    assessing the monetary forfeiture amount, we must take into account
    the statutory factors set forth in Section 503(b)(2)(D) of the
    Communications Act of 1934,[^5] 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. The record reveals that WSJM has a history of
    compliance. Applying the *Forfeiture Policy Statement* and the
    statutory factors to the instant case and applying the inflation
    adjustments, we believe that a nineteen thousand dollar (\$19,000)
    monetary forfeiture is warranted.

```{=html}
<!-- -->
```
III. **ORDERING CLAUSES**

```{=html}
<!-- -->
```
10. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act[^6] and Sections 0.111, 0.311 and 1.80 of the Rules[^7], WSJM,
    Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
    in the amount of nineteen thousand dollars (\$19,000) for willful
    and repeated violation of 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 Rules.

11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
    Commission\'s Rules, within thirty (30) days of the release date of
    this NOTICE OF APPARENT LIABILITY, WSJM, INC. SHALL PAY the full
    amount of the proposed forfeiture or SHALL FILE a written statement
    seeking reduction or cancellation of the proposed forfeiture.

12. 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. 200332360005,
    FRN: 0007 1714 32.

13. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Technical and Public Safety
    Division, 445 12th Street, S.W., Washington, D.C. 20554 and MUST
    INCLUDE the NAL/Acct. No. 200332360005, FRN: 0007 1714 32.

14. 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.

15. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Federal
    Communications Commission, Chief, Revenue and Receivables Operations
    Group, 445 12th Street, S.W., Washington, D.C. 20554.[^8]

16. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Technical and
    Public Safety Division, Enforcement Bureau, Federal Communications
    Commission, 445 12th Street S.W., Washington, D.C. 20554. Your
    certification should indicate whether you, including your parent
    entity and its subsidiaries, meet one of the definitions set forth
    in the list provided by the FCC's Office of Communications Business
    Opportunities (OCBO) set forth in Attachment A of this Notice of
    Apparent Liability. This information will be used for tracking
    purposes only. Your response or failure to respond to this question
    will have no effect on your rights and responsibilities pursuant to
    Section 503(b) of the Communications Act. If you have any questions
    regarding any of the information contained in Attachment A, please
    contact OCBO at (202) 418-0990.

17. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT LIABILITY shall
    be sent by Certified Mail, Return Receipt Requested, to WSJM, Inc.,
    P.O. Box 107, St. Joseph, Michigan 49085.

FEDERAL COMMUNICATIONS COMMISSION

James A. Bridgewater

District Director

Detroit Office

Attachment A -- FCC List of Small Entities, October 2002

[^1]: ^1^ 47 C.F.R. §§ 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).

[^2]: 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
    (1991).

[^3]: Section 312(f)(2), which also applies to Section 503(b), provides:
    \[t\]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.

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. §§ 0.111, and 0.311.

[^8]: See 47 C.F.R. § 1.1914.