**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+-----------------------------------+---+--------------------------------+
| In the Matter of                  | * | EB-07-AT-177                   |
|                                   | * |                                |
| Star Power Communications         | ) | NAL No.: 200732480013          |
| Corporation                       | * |                                |
|                                   | * | FRN: 0009886755                |
| Licensee of Radio Station         |   |                                |
| WIQR(AM)                          | * |                                |
|                                   | * |                                |
| Prattville, AL                    | ) |                                |
|                                   | * |                                |
| Facility ID: 8544                 | * |                                |
|                                   |   |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   | ) |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   |   |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   | ) |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   |   |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   | ) |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   |   |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   | ) |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   |   |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   | ) |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   |   |                                |
|                                   | * |                                |
|                                   | * |                                |
|                                   | ) |                                |
|                                   | * |                                |
|                                   | * |                                |
+-----------------------------------+---+--------------------------------+

## FORFEITURE ORDER

**Adopted:** November 5, 2008 **Released:** November 7, 2008

By the Regional Director, South Central Region, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of one thousand five hundred dollars
    (\$1,500) to Star Power Communications Corporation ("Star Power"),
    licensee of station WIQR(AM), in Prattville, Alabama, for willful
    and repeated violation of Sections 11.35(a) and 73.3526 of the
    Commission's Rules ("Rules").[^1] The noted violations involve Star
    Power's failure to maintain operational Emergency Alert System
    ("EAS") equipment, and failure to maintain and make available a
    complete public inspection file. We also admonish Star Power for its
    repeated violation of Section 73.1350(a) of the Rules.[^2]

    **II. BACKGROUND**

2.  On August 30, 2007, agents of the Commission's Atlanta Office of the
    Enforcement Bureau ("Atlanta Office") conducted an inspection of the
    AM directional station, WIQR, in Prattville, Alabama during normal
    business hours with the station's general manager. The agents found
    that the station's EAS encoder/decoder unit was not operational,
    because it was unplugged from a power source. The station's general
    manager stated that he was unaware that the EAS unit was unplugged
    and stated that the station's engineer must have unplugged it when
    the engineer was last there. When plugged back in, no one at the
    station was able to send an EAS test from the unit. The agents were
    unable to retrieve any electronically stored data from the unit. The
    station also had no EAS logs, and the last EAS printout was an alert
    from the National Weather Service dated May 2, 2007.

3.  During the inspection, the agents requested to inspect the station's
    public inspection file. The station provided a public inspection
    file that did not contain any quarterly issues programs lists for
    any quarter. The general manager and office manager stated that they
    were unaware of this requirement and admitted that the station had
    not been compiling quarterly issues programs lists.

4.  Finally, the agents observed one of the walls of the plastic fence
    surrounding one of the station's towers lying on the ground,
    allowing ready access to the base of the tower. The agents observed
    that tall grass had grown up through the downed portion of the
    fence. The general manager stated that he was going to replace the
    plastic fence with a wooden fence but that he hadn't had chance to
    do it.

5.  On October 19, 2007, the station's engineer contacted an agent from
    the Atlanta Office and provided additional information. He stated
    that he had not visited the station in several months. He also
    stated that the plastic fence around the tower was installed in 2004
    or 2005.

6.  On November 5, 2007, the Atlanta Office issued a *Notice of Apparent
    Liability for Forfeiture* to Star Power in the amount of nineteen
    thousand dollars (\$19,000) for the apparent willful and repeated
    violation of Sections 11.35(a), 73.3526(a) and 73.49[^3] of the
    Rules.[^4] Star Power submitted a response to the *NAL* requesting a
    reduction or cancellation of the proposed forfeiture.

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

```{=html}
<!-- -->
```
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'),[^5] Section 1.80 of the Rules,[^6] 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 Star Power'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.[^7]

8.  Section 11.35(a) of the Rules states that "EAS participants are
    responsible for ensuring that EAS Encoders, EAS Decoders and
    Attention Signal generating and receiving equipment used as part of
    the EAS are installed so that the monitoring transmitting functions
    are available during the times the stations and systems are in
    operation." On August 30, 2007, station WIQR's EAS encoder/decoder
    was not operational, because it was unplugged from the power source.
    The station's general manager stated that the station's engineer
    must have unplugged it. The engineer later stated that he had not
    visited the station in several months. Once plugged in, no one at
    the station could demonstrate that the unit was operational, and
    there was no evidence that an EAS test had been received or sent
    since May 2, 2007. In response to the *NAL*, Star Power states that
    it has corrected its failure to maintain operational EAS. However,
    corrective action taken to come into compliance with the Rules after
    an inspection is expected, and does not nullify or mitigate any
    prior forfeitures or violations.[^8] Thus, based on the evidence
    before us, we find that Star Power willfully[^9] and repeatedly[^10]
    violated Section 11.35(a) of the Rules by failing to maintain
    operational EAS equipment.

9.  Section 73.3526(a)(2) of the Rules requires broadcast stations to
    maintain for public inspection, a file containing materials listed
    in that section.[^11] Section 73.3526(c)(1) of the Rules states that
    the file shall be available for public inspection at any time during
    regular business hours.[^12] Section 73.3526(e)(12) of the Rules
    requires licensees to place in the public inspection file, for each
    calendar quarter, a list of programs that have provided the
    station's most significant treatment of community issues during the
    preceding three month period.[^13] This list is known as the radio
    issues/programs list. On August 30, 2007, in response to a request
    to inspect the station's public inspection file during normal
    business hours, the station was unable to make available any
    quarterly issues/programs lists. The station's general manager and
    office manager stated that they did not know the lists were required
    and admitted that they had not compiled the lists. In response to
    the *NAL*, Star Power states that it corrected its failure to
    maintain quarterly issues/programs lists, but, as stated above,
    corrective action is expected and does not warrant reduction or
    cancellation of a forfeiture. Thus, based on the evidence before us,
    we find that Star Power willfully and repeatedly violated Section
    73.3526 by failing to maintain a complete public inspection file and
    willfully violated Section 73.3526 by failing to make available a
    complete public inspection file.

10. Section 73.49 of the Rules states that "Antenna towers having radio
    frequency potential at the base...must be enclosed within effective
    locked fences or other enclosures." It is undisputed that on August
    30, 2007, one side of the plastic fencing around one of the
    station's towers was lying on the ground, allowing ready access to
    the base of the tower and that the fence had been down for more than
    one day. It is also undisputed that the terms of station WIQR's
    station authorization require it to operate with a directional
    pattern and the use of all of its antennas, which would have caused
    the tower in question to have had radio frequency potential at its
    base. Thus, if station WIQR had been operating as authorized, all of
    its antennas would have required base fences. In its response to the
    *NAL*, Star Power states that it corrected its fencing violation and
    erected a new fence around the tower in question. It also claims for
    the first time that the tower in question didn't have "current going
    to it since we were broadcasting omni-directional from the middle
    tower" and that's why they didn't think "time was of the essence"
    when replacing the plastic fencing. Star Power's general manager
    later submitted a statement, under penalty of perjury, that the
    station had been broadcasting in a non-directional mode from
    approximately July 4, 2007 until a few months ago.[^14] Because Star
    Power asserts that the station operated in an omni-directional mode
    from on or about July 4, 2007 until a few months before July 2008,
    the tower in question did not have radiofrequency potential during
    the inspection and we have no direct evidence to the contrary for
    the date of the inspection or for the prior dates in which the
    section of the fence was missing, we cancel the proposed forfeiture
    associated with the apparent violation of Section 73.49 of the
    Rules. However, because Star Power admits that it repeatedly
    operated its station in an omni-directional mode when it was
    required to operate in a directional mode, we admonish it for its
    repeated violation of Section 73.1350(a) of the Rules, which
    requires each licensee to maintain and operate its broadcast station
    "in accordance with the terms of the station authorization."[^15]

11. Finally, Star Power requests a reduction of the forfeiture based on
    its history of compliance with the Rules. We have reviewed the
    Commission's records and agree that Star Power has not been the
    subject of a prior enforcement action. Star Power also asserts that
    the proposed forfeiture would pose a financial hardship. The
    Commission has determined that, in general, an entity\'s gross
    revenues are the best indicator of its ability to pay a
    forfeiture.[^16] We have reviewed the financial documentation
    provided by Star Power and reduce the forfeiture to \$1,500 based on
    its history of compliance with the Rules and its documented
    inability to pay.

12. We have examined Star Power's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that Star
    Power willfully and repeatedly violated Sections 11.35(a) and
    73.3526 of the Rules. However, we reduce the forfeiture for these
    violations to \$1,500 based on Star Power's history of compliance
    with the Rules and documented inability to pay.

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

```{=html}
<!-- -->
```
13. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311 and 1.80(f)(4) of the Commission's Rules, Star Power
    Communications Corporation **IS LIABLE FOR A MONETARY FORFEITURE**
    in the amount of one thousand five hundred dollars (\$1,500) for
    violation of Sections 11.35 and 73.3526 of the Rules.[^17]

14. **IT IS FURTHER ORDERED** that, the forfeiture in the amount of
    seven thousand dollars (\$7,000) for violation of Section 73.49 of
    the Rules proposed in the November 5, 2007 *Notice of Apparent
    Liability* issued to Star Power Communications Corporation **IS
    CANCELED**.

15. **IT IS FURTHER ORDERED** that, Star Power Communications
    Corporation **IS ADMONISHED** for its repeated violation of Section
    73.1350(a) of the Rules.

16. 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 must be made by check or similar instrument, payable to
    the order of the Federal Communications Commission. The payment must
    include the NAL/Account Number and FRN Number referenced above.
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 979088, St. Louis, MO
    63197-9000. Payment by overnight mail may be sent to U.S. Bank --
    Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
    Louis, MO 63101. Payment by wire transfer may be made to ABA Number
    021030004, receiving bank TREAS/NYC, and account number 27000001.
    For payment by credit card, an FCC Form 159 (Remittance Advice) must
    be submitted.  When completing the FCC Form 159, enter the
    NAL/Account number in block number 23A (call sign/other ID), and
    enter the letters "FORF" in block number 24A (payment type code).
    Requests for full payment under an installment plan should be sent
    to:  Chief Financial Officer \-- Financial Operations, 445 12th
    Street, S.W., Room 1-A625, Washington, D.C.  20554.   Please contact
    the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
    ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
    Star Power will also send electronic notification on the date said
    payment is made to SCR-Response@fcc.gov.

17. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to Star
    Power Communications Corporation at its address of record.

    FEDERAL COMMUNICATIONS COMMISSION

    Dennis P. Carlton

    Regional Director, South Central Region

    Enforcement Bureau

[^1]: 47 C.F.R. §§ 11.35(a), 73.3526.

[^2]: 47 C.F.R. § 73.1350(a).

[^3]: 47 C.F.R. § 73.49.

[^4]: *N**otice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200732480013 (Enf. Bur., Atlanta Office, November 5, 2007)
    ("*NAL*").

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(E).

[^8]: *See Seawest Yacht Brokers*, Forfeiture Order, 9 FCC Rcd 6099
    (1994).

[^9]: 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).

[^10]: 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).

[^11]: 47 C.F.R. § 73.3526(a)(2).

[^12]: 47 C.F.R. § 73.3526(c)(1).

[^13]: 47 C.F.R. § 73.3526(e)(12).

[^14]: Star Power's general manager stated that the station's former
    chief engineer told him that he had submitted a request for Special
    Temporary Authority to operate at variance with the station
    authorization on July 4, 2007. The general manager provided a copy
    of the signed request. The general manager also claims that,
    unbeknownst to him, the former chief engineer intentionally failed
    to submit the request in an attempt to sabotage the station. The
    Commission's Media Bureau does not have a record of an STA being
    filed prior to the date of the inspection.

[^15]: 47 C.F.R. § 73.1350(a).

[^16]: *See PJB Communications of Virginia, Inc*., 7 FCC Rcd 2088, 2089
    (1992) (forfeiture not deemed excessive where it represented
    approximately 2.02 percent of the violator's gross revenues); *Local
    Long Distance, Inc.,* 16 FCC Rcd 24385 (2000) (forfeiture not deemed
    excessive where it represented approximately 7.9 percent of the
    violator's gross revenues); *Hoosier Broadcasting Corporation,* 15
    FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    revenues).

[^17]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4), 11.35,
    73.3526.

[^18]: 47 U.S.C. § 504(a).