******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) NAL Acct. No. 815CG0002 Hoosier Broadcasting Corporation) Lebanon, Indiana ) FORFEITURE ORDER Adopted: February 22, 1999 Released: February 23, 1999 By the Director, Legal Services Group, Compliance and Information Bureau: I. Introduction 1. The Compliance and Information Bureau ("the Bureau") has before it the Notice of Apparent Liability ("NAL") issued on May 27, 1998, against Hoosier Broadcasting, Corp. ("Hoosier"), licensee of FM Station WWRE, Lebanon, Indiana, and the response filed thereto by Hoosier on June 26, 1998. The NAL proposed imposition of a forfeiture against Hoosier in the amount of $11,000 pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C.  503 (b), and Section 1.80 of the Commission's Rules ("the Rules"), 47 C.F.R.  1.80, for willful violation of Section 73.1350(a) of the Rules, 47 C.F.R.  73.1350(a). For the reasons noted below, the amount of the forfeiture will be reduced to $4,000. II. Background 2. In response to a complaint of interference from a FM Station WEDM, Indianapolis, Indiana, on May 5, 1998, FCC agents from the Bureau's Chicago District Office inspected WWRE's control point and transmitting site, located in Lebanon, Indiana. WEDM is licensed to operate on the frequency 91.1 MHz, in Indianapolis, Indiana. WWRE is licensed to operate on the same frequency in Lebanon, Indiana. The inspection revealed that Hoosier had violated Section 73.1350(a) of the Rules by operating with an antenna constructed at a greater height (53 meters) than was authorized by the station's construction permit authorization (25 meters). 3. On May 27, 1998, the District Director of the Bureau's Chicago Office issued an NAL in the amount of $11,000. The NAL assessed $4,000 attributable to the operation with the unauthorized antenna height, and $7,000 for causing interference to WEDM. III. Discussion and Conclusion 4. In its response to the NAL, Hoosier does not deny that it violated the terms of its authorization with respect to its operation with an unauthorized antenna height. Hoosier does argue, however, that the evidence of record is insufficient to establish that it caused the interference alleged, and, therefore, it should not be penalized for this violation. Hoosier also contends that the amount of the NAL is excessive given the fact that this had been its first week of regular operations, and considering its status as a small, non-commercial station, and current financial condition. Specifically, Hoosier seeks a reduction or waiver of the amount of the forfeiture for the violation of Section 73.1350(a) of the Rules as it believes that it qualifies as a small business entity under the Small Business Regulatory Enforcement Fairness Act ("SBREFA"). In support of its claim, Hoosier has attached a "Statement of Operations" as of May 31, 1998, prepared by its accountant. 5. The Bureau's Chicago District Office issued the forfeiture pursuant to Section 503 of the Act and Section 1.80 of the Rules. In assessing the forfeiture amount, the Chicago District Office followed the forfeiture standards established in Section 503 of the Act and The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate Guidelines, 12 FCC Rcd 17087 (1997), recon. pending ("Policy Statement"). 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. See, Section 503(b)(2)(D) of the Act, 47 U.S.C.  503(b)(2)(D). 6. We have reviewed the NAL, Hoosier's Response, and supporting documentation. We note that there are no disputes as to the facts relating to the violation of Section 73.1350(a). Hoosier admits that the station operated with an antenna height that exceeded that which was authorized. The only explanation provided is that this unauthorized operation was a temporary, stop-gap, measure which was implemented to provide its newly authorized service when it was faced with equipment problems. As such, the violation of Section 73.1350(a) was willful. 7. Hoosier does challenge, however, the finding in the NAL that it caused interference to WEDM and argues that the evidence failed to establish that it caused interference to WEDM. Based on the record before us, we agree. The determination that WWRE caused interference was predicted on the basis of the station's authorized effective radiated power ("ERP") of 300 watts, and use of a 2-bay vertically polarized antenna at approximately 50 meters. At an ERP of 300 watts, WWRE's signal strength would overlap the protected contours of WEDM. Hoosier asserts, however, that it had reduced its operating power to 89 watts when it replaced the circularly polarized antenna in order to continue operating within the prescribed parameters. There were no station logs to support Hoosier's claim that it did, in fact, lower its power. Further, because the transmitter was off the air at the time of our inspection of the transmitter, WWRE's transmission power could not be measured. Accordingly, we will not sustain that portion of the NAL which is based on Hoosier's interference with the signal of WEDM. See generally, Section 312(d) of the Act and Section 503 (b)(2)(D) of the Act. 8. We have reviewed Hoosier's contention that the NAL amount should be reduced because it qualifies as a small business under SBREFA. However, after examining the situation in its totality, we are not persuaded that a further reduction is warranted. Specifically, the base amount for exceeding the authorized antenna height is $5,000. See the note to Section 1.80(b)(4) of the Rules, 47 C.F.R.  1.80(b)(4). The record supports the fact that Hoosier willfully, and perhaps knowingly, violated Section 73.1350(a) of the Rules. Nevertheless, the Bureau's Chicago District Office, applying the Policy Statement and statutory factors, issued the NAL for an amount less than the base amount. Although we question whether Hoosier has sufficiently documented its claim that it should be considered a small business under SBREFA, we believe that any reduction that would result from Hoosier's qualification as a small business under SBREFA has already been factored into the NAL amount assessed for the violation of Section 73.1350(a) of the Rules. Accordingly, a further reduction of this portion of the original NAL amount is not warranted. 9. Applying the Policy Statement and the statutory factors to the instant case, as well as the factors examined above, we believe that a forfeiture in the amount of $4,000 is appropriate. IV. Ordering Clauses 10. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act and Section 1.80 of the Rules, that Hoosier IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for willful violation of Section 73.1350(a) of the Rules. 11. IT IS FURTHER ORDERED that, pursuant to Section 1.80(f) of the Rules, 47 C.F.R.  1.80(f), Hoosier shall, within thirty (30) days of the release of this Forfeiture Order, pay the amount of $4,000. Forfeitures shall be paid by check, money order or credit card drawn on a U.S. financial institution, with the appropriate documentation, made payable to the Federal Communications Commission. The remittance should be marked NAL/Acct. No. 815CG0002, and mailed to the following address. Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 Petitions for reconsideration pursuant to Section 1.106 of the Rules, 47 C.F.R.  1.106, or applications for review pursuant to Section 1.115 of the Rules, 47 C.F.R.  1.115, should be sent to: Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 ATTN: Mail Stop 1500E3-DLH Compliance and Information Bureau Forfeiture penalties not paid within 30 days will be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). 12. IT IS FURTHER ORDERED that, a copy of this Order shall be sent by certified mail, return-receipt requested, to Hoosier Broadcasting Corporation, 6264 La Pas Trail, Indianapolis, Indiana 46268 and its counsel of record. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau