******************************************************** 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 ) ) Buchanan Broadcasting Company, Inc.) Pearl, Mississippi ) NAL/Acct. No. 815OR0001 ) ) ) ) FORFEITURE ORDER Adopted: March 18, 1999 Released: March 22, 1999 By the Director, Legal Services Group Compliance and Information Bureau: 1. Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL"), issued on July 28, 1998, to Buchanan Broadcasting Company, Inc. ("Buchanan"), and the August 26, 1998, response thereto filed on behalf of Buchanan by its attorney. The NAL proposed imposition of a forfeiture against Buchanan, licensee of AM Station WJNT, Jackson, Mississippi , in the amount of $18,000 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 and/or repeated violations of Sections 73.1560(a)(1), 73.1745(a) and 73.49 of the Rules, 47 C.F.R.  73.1560(a)(1), 73.1745(a) and 73.49, and the terms of the WJNT authorization. For the reasons stated below, we reduce the monetary forfeiture issued in the amount of $18,000 to $10,000. BACKGROUND 2. On March 17, 1998, in response to a complaint concerning WJNT's operation, an agent from the Bureau's New Orleans Field Office began monitoring the station's signal to determine its relative output power. The field strength measurements showed that there was no substantial change in the WJNT's output power or directional mode of operations from the middle of the afternoon through the evening as required by Sections 73.1560(a)(1) and 73.1745(a) of the Rules pursuant to the terms of its authorization. On March 18, 1998, a second set of measurements of WJNT's signal again showed that there was no substantial change in the station's output power or directional mode of operations from the middle of the afternoon through the evening. 3. On March 19, 1998, an agent from the Bureau's New Orleans Filed Office conducted an inspection of WJNT's facilities in Pearl, Mississippi. During the inspection the agent found several violations of the Commission's rules including inaccurate station logs (Section 73.1820(a)(1)(iii) of the Rules), ineffective transmission system monitoring capability (Section 73.1400(a)(ii) of the Rules), lack of effective fencing around antennas (Section 73.49 of the Rules), failure to reduce to nighttime power (Section 73.1560(a)(1) of the Rules), and failure to change to directional mode of operation at night (Section 73.1745(a) of the Rules). See 47 C.F.R.  73.1820(a)(1)(iii), 73.1400(a)(ii), 73.49, 73.1560(a)(1) and 73.1745(a). On March 27, 1998, the New Orleans Field Office issued a Notice of Violation ("NOV") to Buchanan for these violations. 4. On April 8, 1998, the New Orleans Field Office received Buchanan's response to the NOV. The response stated that the violations concerning the station logs and the transmission monitoring system had been corrected and that the station was now in compliance (Sections 73.1820(a)(1)(iii) and 73.1400(a)(ii) of the Rules). The response further stated that the antenna fences would be repaired as soon as "the ground dried out sufficiently to allow a repair crew to get to the area." Furthermore, Buchanan stated that it had purchased a low-power transmitter to operate during nighttime in compliance with both the output power and the field strength limits set forth in the station authorization. 5. The NAL was issued on July 28, 1998, by the District Director of the Bureau's New Orleans Field Office for the fencing, nighttime power, and directional mode of operation violations (Sections 73.49, 73.1560(a)(1) and 73.1745(a) of the Rules respectively) due to the willful and/or repeated nature of the violations. DISCUSSION 6. The Bureau's New Orleans Field Office issued the forfeiture pursuant to Section 503 of the Act and Section 1.80 of the Rules. In assessing the forfeiture amount, the New Orleans Field 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) ("Policy Statement"), recon. pending. 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. 47 U.S.C.  503(b)(2)(D). 7. Buchanan's response to the NAL was received by the Bureau on August 26, 1998. The response requests that the forfeiture amount be rescinded or substantially reduced. The response first claims that two of the violations, over-powered operation and failure to maintain directional pattern, are actually only one violation and therefore, only one monetary fine should be imposed. AM radio stations, however, are required by the Commission to maintain both their authorized power output pursuant to Section 73.1560(a)(1) of the Rules and their prescribed directional pattern pursuant to Section 73.1745(a) of the Rules as specified in their license. These violations can be committed independent of each other. Therefore, these are two separate violations for which a licensee can be fined. 8. The second argument offered by the Buchanan addresses the fencing violation. Buchanan asserts that the "extreme flooding" of the area which led to the fence damage also "rendered access by a repair crew impossible." Furthermore, respondent states that the flooding which prevented it from repairing the damage "also served to protect the towers from trespass." This, according to Buchanan, in theory, kept it within the letter of the law because "the purpose of the fencing rules - to prevent unauthorized access to potentially dangerous tower facilities - was preserved through the very conditions which led to the damaged fences." Nevertheless, the FCC agent, while inspecting the station on March 19, 1998, was able to access both the fencing area and the towers. His investigation directly contradicts both of Buchanan's assertions. If the FCC agent was able to gain access to the area, then the repair crew should have also been able to access the location, and an unauthorized individual could have also been able to access the location as well. Buchanan further states that this violation can hardly be deemed willful as it was neither conscious nor deliberate, and that the circumstances leading to the damage was, in fact, "reasonably unforeseeable." Buchanan's intentions or the foreseeableness of the flooding, notwithstanding, it is clear that these violations were willful under the Act because Buchanan failed to repair the fence as required. 9. Lastly, Buchanan submits its three most recent tax returns to support its claim of inability to pay the forfeiture and to establish its status as a small business. In PBJ Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992), the Commission stated that "[i]n general, a licensee's gross revenues are the best indicator of its ability to pay a forfeiture." In considering Buchanan's complete financial status, we find that its gross revenues are insufficient to enable Buchanan to pay the forfeiture of $18,000. We therefore reduce the forfeiture to $10,000. 10. ACCORDINGLY, IT IS ORDERED that, pursuant to 47 U.S.C.  503(b) , 47 C.F.R.  1.80, and the Policy Statement, Buchanan Broadcasting Company, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of $10,000 for willful and repeated violations of 47 C.F.R.  73.1560(a)(1), 73.1745(a), 73.49, and the terms of the WJNT station authorization. 11. IT IS FURTHER ORDERED that, pursuant to 47 C.F.R.  1.80(f), Buchanan Broadcasting Company, Inc. shall, within 30 days of the release of this Forfeiture Order, pay the amount of $10,000. Payment of the forfeiture shall be made in U.S. dollars, by check, credit card or money order drawn on a U.S. financial institution payable to the Federal Communications Commission. The remittance should be marked NAL/Acct. No. 815OR0001, and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 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 certified mail, return receipt requested, to Buchanan Broadcasting Company, Inc. and its counsel. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau