Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Oak Harbor Communications, Inc. ) Station KJTT(AM) ) NAL/Acct. No. 915ST0002 Oak Harbor, Washington ) FORFEITURE ORDER Adopted: March 31, 1999 Released: April 6, 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") for monetary forfeiture issued on November 18, 1998, to AM Station KJTT, Oak Harbor Washington and its licensee, Oak Harbor Communications, Inc. (hereafter referred to jointly as "KJTT"), and the December 15, 1998 response thereto filed by Duane J. Polich of P-N-P Broadcasting on behalf of KJTT. The NAL proposed imposition of a forfeiture against KJTT in the amount of $19,000, 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 repeated violation of Sections 11.51, 11.52, 17.50, 73.1213, and 73.1400 of the Rules, 47 C.F.R.  11.51, 11.52, 17.50, 73.1213, and 73.1400. For the reasons stated below, we affirm the $19,000 forfeiture amount. BACKGROUND 2. On January 22, 1998, following up on a report that KJTT's tower lights were not operating, agents of the Bureau's Seattle, Washington Field Office inspected KJTT's transmitting and studio facilities. During the inspection, in addition to verifying that the lights were not functioning, the agents found that the paint on the antenna structure was significantly chipped and faded, in violation of Sections 17.50 and 73.1213 of the Rules. The operator on duty during the inspection, Mr. Polich, admitted that the tower lights had been extinguished since November 1997, and further admitted that he had failed to notify the Federal Aviation Administration ("FAA") of the outage. The agents also found that KJTT was operating without the remote control and metering equipment required for the operator on duty to perform his required duties, in violation of Section 73.1400 of the Rules. Furthermore, KJTT had not installed Emergency Alert System ("EAS") equipment, in violation of Sections 11.51 and 11.52 of the Rules. Mr. Polich was verbally notified of the violations described above and was informed of the liability for forfeiture if the violations were not corrected in a timely manner. Mr. Polich told the agents that he intended to bring the station and equipment into compliance with the Rules. 3. On February 5, 1998, Mr. Polich notified the Seattle Field Office that KJTT's antenna structure lighting had been repaired as of January 30, 1998. 4. On August 28, 1998, KJTT's facilities were re-inspected to determine whether the violations found previously had been corrected. Although KJTT had seven months between the time of the January and August inspections to bring the station into compliance with the Rules, it failed to do so. As of August 28, 1998, the station still did not have the required remote control and metering equipment in place, nor had it installed EAS equipment or re-painted the tower. Due to the continuing nature of these violations, the District Director of the Bureau's Seattle Field Office issued the subject NAL on November 18, 1998 in the amount of $19,000 for KJTT's repeated and willful violation of Sections 11.51, 11.52, 17.50, 73.1213, and 73.1400 of the Rules. 5. KJTT's response to the NAL does not specifically address each of the violations found at the station. Instead, the response states that the station provides the only local radio service to Oak Harbor, Whidbey Naval Air Station, and North Whidbey Island; that the current staff of the station is "committed to the concept of community radio and providing a service to the community;" and generally describes KJTT's financial problems, which are alleged to have been a continuing issue for several years. The response also requested additional time to submit further information with respect to the financial affairs of the station. Although an extension of time to do so was granted to Mr. Polich by telephone call in late December, 1998, no additional information or response has been received by the Bureau. 6. The only violation directly discussed in KJTT's response is its failure to maintain the required painting of KJTT's antenna structure pursuant to Sections 17.50 and 73.1213 of the Rules. In this regard, the response states that the failure to repaint the tower was "a matter of cost and available personnel." Mr. Polich further claims to have contacted the local FAA office and the planning liaison at Whidbey Naval Air Station to determine whether the structure should be subject to the painting requirement, as KJTT contends that its antenna structure does not exceed the height and slope parameters specified in the Rules for structures that are subject to the painting and lighting requirements. According to KJTT's response, the planning liaison at the Naval Air Station "has given a preliminary indication that such painting is not necessary." DISCUSSION 7. As the NAL explicitly states, the forfeiture amount in this case was assessed in accordance with Section 503 of the Act, Section 1.80 of the Rules, 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. pending ("Policy Statement"). In that regard, the Seattle Field Office issued the NAL in the amount of $19,000. See 47 C.F.R.  1.80(b)(4) and Policy Statement at 17113. In examining KJTT'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. 47 U.S.C.  503(b)(2)(D). 8. Section 73.1400 of the Rules, requires all broadcast station licensees to assure that their stations operate within the tolerances specified by the applicable technical Rules and in accordance with the terms of the station's license. In that regard, licensees of stations operating unattended with a remote control operated system must have remote control and metering equipment installed at the station to ensure compliance with Section 73.1350 of the Rules, 47 C.F.R.  73.1350. In addition, Sections 11.51 and 11.52 of the Rules require that all broadcast stations have operational EAS equipment installed as of January 1, 1997, and that all stations participate in weekly and monthly tests of equipment. "Licensees are expected to know and comply with the Commission's rules, and will not be excused for violations thereof, absent clear mitigating circumstances." See In the Matter of Liability of Sitka Broadcasting Co., Inc., 70 FCC 2d 2375, 2378 (1979), citing Lowndes County Broadcasting Co., 23 FCC 2d 91 (1970) and Emporium Broadcasting Co., 23 FCC 2d 868 (1970). KJTT has offered no evidence of clear mitigating circumstances that would excuse the violations of Sections 73.1400, 11.51 and 11.52 of the Rules noted in the NAL. 9. As noted in the NAL, the paint on the upper five sections of KJTT's antenna structure was faded and chipped, making the tower difficult to see. FCC records indicate that this antenna structure is subject to the painting and lighting requirements of the Rules because it fails a 100:1 slope to Oak Harbor Airport by 64 feet, and fails a 100:1 slope to Whidbey Island Naval Air Station by 161 feet. As KJTT's response explicitly states, the FAA has designated this tower for painting and lighting due to its proximity to a military base. Whether personnel at the military base believes the painting is necessary is of no consequence. Unless or until such time as the antenna structure is re-designated, the painting and lighting requirements of 47 C.F.R.  17.50 and 73.1213 are applicable to it, and KJTT's failure to repaint the structure constitutes a violation of those Rules. 10. With respect to KJTT's contention that, due to its dire financial condition, "justice would not be served" by imposing a forfeiture on it, we note that KJTT has submitted no evidence or documentary support which would allow the Commission to assess the validity of claims regarding its financial status. The NAL clearly states, at footnote two, that a claim of inability to pay should be supported by tax returns or other financial statements prepared under generally acceptable accounting procedures for the most recent three-year period. Undocumented statements of a licensee's size and financial condition do not meet the requirement of a particularized showing of financial hardship or inability to pay. See, e.g., PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992) (a licensee's gross revenues are generally the best indicator of its ability to pay a forfeiture); In re Application of Ellwood Beach Broadcasting, Ltd., 8 FCC Rcd 453, 454 (1993) (respondent's failure to submit any financial documents or other evidence deemed insufficient showing of inability to pay); In the Matter of Liability of Macau Traders, Inc., 13 FCC Rcd 228, 233 (1998) (no reduction of forfeiture warranted due to undue financial hardship where violator provided no documentary evidence upon which to evaluate its financial condition or ability to pay). 11. We have examined KJTT's response to the NAL pursuant to the statutory factors above, and in conjunction with the Policy Statement as well. As a result of our review, we conclude that KJTT has failed to provide a sufficient justification for reducing the forfeiture amount. Therefore, we affirm the forfeiture amount of $19,000. 12. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), Section 1.80 of the Rules, 47 C.F.R. 1.80, KJTT(AM)/Oak Harbor Communications, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of $19,000 for violations of Sections 11.51, 11.52, 17.50, 73.1213, and 73.1400 of the Rules, 47 C.F.R.  11.51, 11.52, 17.50, 73.1213, and 73.1400. 13. IT IS FURTHER ORDERED that, pursuant to Section 1.80(f) of the Rules, 47 C.F.R. 1.80(f), KJTT-AM/Oak Harbor Communications, Inc. shall, within thirty (30) days of the release of this Forfeiture Order, pay the amount of $19,000. Payment of the forfeiture shall be made by check or money order drawn on a U.S. financial institution payable to the Federal Communications Commission. Payment may also be made by credit card with the appropriate documentation. The remittance should be marked "NAL/Acct. No. 915ST0002," 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). 14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by certified mail, return-receipt requested, to KJTT(AM)/Oak Harbor Communications, Inc., P.O. Box 70, Oak Harbor, Washington 98277. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau