Click here for Adobe Acrobat version
Click here for Microsoft Word version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

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
Microsoft Word or Adobe Acrobat version.

*****************************************************************




                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                  )       File Number EB-02-OR-195
                                 )
Metro Birch Enterprises, Inc.     )      NAL/Acct.No. 200232620008
Licensee of AM Radio Station      )
KPBA                              )               FRN 0007-2843-67
Pine Bluff, Arkansas              )




         NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                     Released: July 22, 2002

By the Enforcement Bureau, New Orleans Office:

                      I.  INTRODUCTION

     1.  In this Notice of Apparent Liability for Forfeiture 
(``NAL''), we  find Metro  Birch Enterprises,  Inc. (``Metro 
Birch''),  licensee of  AM radio  station KPBA,  Pine Bluff, 
Arkansas, apparently  liable for a forfeiture  in the amount 
of   seventeen  thousand   dollars  ($17,000)   for  willful 
violation  of  Sections  73.49   and  73.3526(a)(2)  of  the 
Commission's  Rules  (``Rules'').1   Specifically,  we  find 
Metro  Birch apparently  liable  for failing  to provide  an 
effective locked  fence enclosing the base  of the station's 
antenna tower, and by failing to maintain all required items 
in the station's public inspection file.

                       II.  BACKGROUND

     2.  On May 21, 2002, an agent from the Commission's New 
Orleans Field Office inspected  station KPBA located in Pine 
Bluff,  Arkansas.  The  agent  observed  that the  station's 
antenna tower,  which had  radio frequency potential  at the 
base, was  not enclosed inside  a fence or  other protective 
enclosure.  Additionally,  the station's  public  inspection 
file consisted of only a few letters from the public.

                      III.  DISCUSSION

     3.  Section  73.49 of  the Rules requires  that antenna 
towers having radio frequency potential  at the base must be 
enclosed within effective locked fences or other enclosures.  
On May 21, 2002, KPBA's antenna tower had radio frequency at 
the  base and  was  not  enclosed by  any  fencing or  other 
enclosure. 

     4.   Section 73.3526(a)(2)  of  the  Rules states  that 
``[e]very permittee or licensee of an AM, FM, TV, or Class A 
TV  station  in  the  commercial  broadcast  services  shall 
maintain a  public inspection file containing  the material, 
relating  to that  station, described  in paragraphs  (e)(1) 
through (e)(10) and paragraph (e)(13) of this section.''  On 
May 21,  2002, KPBA's public inspection  file consisted only 
of  a few  letters from  the  public and  was missing  other 
documents including applications  filed with the Commission, 
the station's  contour map, ownership reports,  requests for 
time from political candidates,  the Public and Broadcasting 
Manual, and the issues and programs lists.

     5.  Based  on the evidence  before us, we find  that on 
May 21, 2002, Metro Birch willfully2 violated Sections 73.49 
and  73.3526(a)(2) of  the Rules  by failing  to provide  an 
effective locked  fence enclosing the base  of the station's 
antenna tower, and by failing to maintain all required items 
in the station's public inspection file.

     6.  Pursuant  to Section  1.80(b)(4) of the  Rules, the 
base forfeiture  amount for  AM tower fencing  violations is 
$7,000, and the base forfeiture  amount for violation of the 
public file  rules is $10,000.3 Section  503(b)(2)(D) of the 
Communications Act  of 1934, as amended  (``Act''), requires 
us  to 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.''4  Considering the entire  record and 
applying  the  statutory  factors listed  above,  this  case 
warrants a $17,000 forfeiture.

                    IV.  ORDERING CLAUSES

     7.   Accordingly,  IT  IS  ORDERED  THAT,  pursuant  to 
Section 503(b)  of the Act,5  and Sections 0.111,  0.311 and 
1.80 of the Rules,6 Metro  Birch Enterprises, Inc. is hereby 
NOTIFIED of its  APPARENT LIABILITY FOR A  FORFEITURE in the 
amount of  seventeen thousand dollars ($17,000)  for willful 
violation of Sections 73.49  and 73.3526(a)(2) of the Rules, 
by failing  to provide  an effective locked  fence enclosing 
the base of  the station's antenna tower, and  by failing to 
maintain  all   required  items  in  the   station's  public 
inspection file.

     8.   IT IS  FURTHER ORDERED  THAT, pursuant  to Section 
1.80 of the Rules, within thirty days of the release date of 
this NAL, Metro  Birch Enterprises, Inc. SHALL  PAY the full 
amount of  the proposed forfeiture  or SHALL FILE  a written 
statement seeking reduction or  cancellation of the proposed 
forfeiture.

     9.  Payment of the forfeiture  may be made by mailing a 
check or  similar instrument,  payable to  the order  of the 
Federal   Communications  Commission,   to  the   Forfeiture 
Collection Section,  Finance Branch,  Federal Communications 
Commission,  P.O. Box  73482, Chicago,  Illinois 60673-7482.  
The  payment   must  include  the  FRN   and  NAL/Acct.  No. 
referenced in the letterhead above.

     10. The  response, if  any, must  be mailed  to Federal 
Communications Commission, Office of the Secretary, 445 12th 
Street, SW, Washington, DC  20554, Attn: Enforcement Bureau-
Technical  & Public  Safety Division,  and MUST  INCLUDE THE 
NAL/Acct. No. and FRN referenced in the letterhead above.

     11.  The  Commission  will  not  consider  reducing  or 
canceling a forfeiture  in response to a  claim of inability 
to  pay  unless  the  petitioner submits:  (1)  federal  tax 
returns for the most recent three-year period; (2) financial 
statements   prepared   according  to   generally   accepted 
accounting practices (``GAAP''); or  (3) some other reliable 
and  objective documentation  that  accurately reflects  the 
petitioner's  current   financial  status.   Any   claim  of 
inability to  pay must  specifically identify the  basis for 
the  claim  by  reference  to  the  financial  documentation 
submitted.  

     12. Requests for payment of the full amount of this NAL 
under  an  installment  plan  should  be  sent  to:  Federal 
Communications  Commission, Chief,  Revenue and  Receivables 
Operations Group,  445 12th  Street, S.W.,  Washington, D.C. 
20554.7 

     13.   IT IS  FURTHER ORDERED  THAT a  copy of  this NAL 
shall  be sent  by regular  mail and  Certified Mail  Return 
Receipt Requested  to Metro  Birch Enterprises, Inc.  at 219 
West 5th Street, Pine Bluff, Arkansas, 71601.



                              FEDERAL         COMMUNICATIONS 
COMMISSION
                         



                              James C. Hawkins
                              District Director, New Orleans 
Office
                              Enforcement Bureau
_________________________

1 47 C.F.R  73.49, 73.3526(a)(2).

2 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies equally to Section 503(b) of the Act, provides that 
``[t]he term `willful,' when used with reference to the 
commission or omission of any act, means the conscious and 
deliberate commission or omission of such act, irrespective 
of any intent to violate any provision of this Act ....''  
See Southern California Broadcasting Co., 6 FCC Rcd 4387 
(1991).

3 47 C.F.R.  1.80(b)(4).

4 47 U.S.C.  503 (b)(2)(D).

5 47 U.S.C.  503(b).

6 47 C.F.R.  0.111, 0.311, 1.80.

7 See 47 C.F.R.  1.1914.