FCC Record, Volume 27, No. 5, Pages 3728 to 4696, April 9 - April 27, 2012 Page: 4,169
ix, 3728-4696 p. ; 28 cm.View a full description of this book.
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A 17-67
with more than its authorized TPO during the inspection on February 26, 2010, when Randy Bennett, Ace's
principal owner and chief operator, was present.3
5. Although Ace admits that its Station was operating overpower, it argues that no forfeiture
should be imposed based on its theory that the overpower operation on various dates possibly could have
been caused by "tampering" on the part of an unknown third party." In support of its argument, Ace
explains that it regularly inspected its transmitter site at least once a month and found no problems, 'S and
that, therefore, the "alleged power findings.., by the agents on September 22 and 24, 2010 defies logic"; as
such, it suggests that the overpower operation was likely attributable to "tampering on the part of an
unrelated third party.""6 We find this explanation unpersuasive, especially since Ace provides no evidence
of any tampering by an unknown third party. Moreover, we find it implausible that an unrelated third party
would know when Ace would conduct inspections of its transmitter and ensure that the power levels were
properly set on those dates; and then, at the same time, know when the Commission would conduct
unannounced inspections and measurements and, in anticipation of such inspections, deliberately adjust the
transmitter to reflect overpower operations only during those dates. There is also no reason (and Ace
provides none) to question the accuracy of the agent's observations and the corresponding measurements
taken on October 28, 2009, and on February 7, February 26, September 22, and September 24, 2010. Based
on the evidence before us, we find that Ace not only violated Section 74.1235(e) of the Rules willfully and
repeatedly, but did so deliberately, given the further violations after the February 26, 2010 inspection, when
Ace's principal owner, Mr. Bennett, was present.
B. Operation with Unauthorized Antenna Equipment
6. We also affirm our finding in the NAL that Station W277AN operated its station with an
unauthorized antenna system. Section 73.1350 of the Rules states that each licensee is responsible for
maintaining and operating its broadcast station in a manner which complies with the technical rules set forth
elsewhere in this part and in accordance with the terms of the station authorization."7 In the NAL, we found
that although Station W277AN's license authorizes it to operate with only one antenna,"' the photographs
taken by agents on October 28, 2009, as well as direct observations by agents on February 7, 2010,
3 Ace asserts that during the inspection on February 26, 2010, an agent from the Tampa Office told it that he usually
gives "a first time offender" a "mulligan," and complains that the agents failed to disclose the previous measurements
that were taken on October 28, 2009, and February 7, 2010. See NAL Response at 4. Ace seems to suggest that these
facts (if true) mitigate the willfulness of the violation, but we disagree. Not only do the Bureau's agents deny Ace's
assertions, but even if the assertions were true, neither fact has any bearing on the willfulness of the violation.
Furthermore, independent of the October 28, 2009, and February 7, 2010, violation dates, the TPO violation was twice
violated in September 2010, and determined to have been repeated and willful.
14 See Affidavit of Randy Bennett Attachment A to NAL Response at 2.
15 See Affidavit of Randy Bennett Attachment F to NAL Response at 1-2. Ace included affidavits from two
individuals who state they observed the Station operating within tolerances on September 4, 2010. See Affidavit of
Michael David, Volunteer Board Member of Brevard Youth Education Broadcasting Corporation, Inc., dated March
28, 2011; Affidavit of Stacey Kile, Volunteer Board Member of Brevard Youth Education Broadcasting
Corporation, Inc., dated March 31, 2011. Although Ace asserts that it noted all repairs and issues in the transmitter
log, Ace provided agents from the Tampa Office a copy of its transmitter log on February 26, 2010, but there were no
entries in the log. Similarly, on September 22, 2010, agents from the Tampa Office again observed the Station's
transmitter log located at the transmitter site and still found no entries in the log, leaving Ace with no written
documentation of any measurements that it alleges were taken by the Station on the particular dates it said it did.
16 Affidavit of Randy Bennett Attachment F to NAL Response at 2.
17 47 C.F.R. 73.1350.
'* See License File Number BLFT-20070220AA0.4169
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 5, Pages 3728 to 4696, April 9 - April 27, 2012, book, April 2012; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc102307/m1/458/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.