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

In the Matter of                 )
                                )            File Number: EB-02-
M.J. Phillips Communications,    )            BF-344
Inc.                             )
Radio Station WJJL               )            NAL/Acct.No. 
Niagara Falls, New York          )            200332280004
                                )
                                             FRN: 0004-9421-24


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                         Released:  January 28, 
                              2003


By the Resident Agent, Buffalo Office, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''),  we  find  that  M.J.  Phillips  Communications,   Inc 
(``Phillips''), licensee of  radio station  WJJL, Niagara  Falls, 
New  York,  apparently  violated  Sections  11.35(a),   11.52(d), 
17.4(a), and 73.1560(a)(1)1 of the Commission's Rules (``Rules'') 
by failing  to determine  cause  of any  failure to  receive  the 
required EAS tests  or activations and  make the appropriate  log 
entries, failing to monitor two EAS sources, failing to  register 
the antenna structure,  and failing to  maintain operating  power 
within 105 % of the authorized power.  We conclude that  Phillips 
is apparently  liable  for a  forfeiture  in the  amount  of  ten 
thousand dollars ($10,000).
          
                         II.  BACKGROUND

     2.   On   September   17   and   18,   2002,   the   Federal 
Communications  Commission's   (``FCC'')   Enforcement   Bureau's 
Buffalo Office  conducted an  inspection of  radio station  WJJL.  
The station studios are located in West Seneca, New York and  the 
transmitter is  located in  Niagara Falls,  New York.   An  agent 
conducted field strength measurements on the evening of September 
17 and during the inspection on September 18.  The field strength 
measurements indicated  the  station was  exceeding  the  daytime 
authorized  power  of  1000  watts  by  250%  and  exceeding  the 
authorized nighttime power of 55 watts by 900%.  According to the 
station log, no EAS  tests had been received  or sent since  July 
23, 2002.  The station had the capability to monitor only one EAS 
source.  There were no entries in the station log indicating  the 
failure to receive the required EAS tests or notifications.   The 
antenna structure located at 43 04' 52'' North Latitude and  70 
00' 58''  West Longitude  in  Niagara Falls,  New York,  was  not 
registered with the Commission.   The written designation of  the 
chief operator was not available. 

     3.   On September  23, 2002,  the  Buffalo Office  issued  a 
Notice  of  Violation  (``NOV'')  to  Phillips,  citing  Sections 
11.35(a), 11.52(d),  11.61(a)(1)(i), 11.61(a)(2)(i)(A),  17.4(c), 
73.1125(d)(1), 73.1560(a)(1), and 73.1870(b)(3)2.  On October  6, 
2002, Phillips submitted a written response.  The response stated 
that the  failure  to conduct  and  log required  EAS  tests  was 
inadvertent and the problem will not reoccur, the station was now 
monitoring two EAS sources, the station will submit proper  forms 
to register the  tower, and the  station provided a  copy of  the 
written chief operator designation.  The station's response  also 
stated that the  cause of the  overpower operation was  due to  a 
technical malfunction.

                         III.  DISCUSSION

     4.   Section  11.35(a)  of  the  rules  requires   broadcast 
stations to determine  the cause  of any failure  to transmit  or 
receive the  required  EAS  tests  or  activations  specified  in 
Sections 11.61(a)(1) and (2).  Appropriate entries shall be  made 
in  the  station  log  indicating  reasons  why  tests  were  not 
received.   According  to  the  station  log,  no  EAS  tests  or 
activations were  sent or  received from  July 23,  2002  through 
September 17, 2002.   There were  no entries in  the station  log 
indicating reasons why the tests were not received.

     5.   Section  11.52(d)  of  the  rules  required   broadcast 
stations to monitor two EAS sources.  At the time of  inspection, 
the EAS equipment was capable of monitoring only one EAS source.

     6.   Section 17.4 (a) of the rules requires the owner of any 
existing antenna  structure  that  requires  notice  of  proposed 
construction to  the  Federal  Administrative  Administration  to 
register  the   structure   with   the   Federal   Communications 
Commission.   According  to   Commission  records,  the   antenna 
structure located at 43 04' 52'' North Latitude and 70 00' 58'' 
West Longitude in Niagara Falls, New York, was not registered.

     7.   Section 73.1560(a)(1) of  the rules requires  broadcast 
stations to maintain their operating  power as near as  practical 
to the authorized input  power and may not  be more than 105%  of 
the authorized power.  Field  strength measurements conducted  on 
September 17 and 18, 2002 indicated the station's operating power 
exceeded the authorized daytime power  of 1000 watts by at  least 
250% and exceeded the authorized  nighttime power of 55 watts  by 
at least 900%.

     8.   Based on  the  evidence  before us,  we  find  that  on 
September 17 and  18, 2002, Phillips  willfully3 and  repeatedly4 
violated Section 11.35(a),  11.52(d), 17.4(a), and  73.1560(a)(1) 
of the Rules  by failing  to determine  the cause  of failure  to 
transmit receive the required EAS  tests or activations and  make 
the appropriate log entries, failing to monitor two EAS  sources, 
failing  to  register  the  antenna  structure,  and  failing  to 
maintain  the  authorized  operating  power.   The   Commission's 
Forfeiture Policy Statement and Amendment of Section 1.80 of  the 
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087, 
17113 (1997), recon. denied,  15 FCC Rcd 303(1999)  (``Forfeiture 
Policy Statement'')5, sets the base forfeiture amount for failure 
to maintain  required  records at  $1,000,  failure to  make  the 
required measurements  or  conduct  the  required  monitoring  at 
$2,000,  failure to file required forms or information at  $3,000 
and exceeding power limits at $4,000.  In assessing the  monetary 
forfeiture amount,  we  must  take  into  account  the  statutory 
factors set forth in  Section 503(b)(2)(D) of the  Communications 
Act of 1934,  as amended, (``Act''),6  which include 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.  The record shows Phillips has a history  of 
prior violations,  and the  over-power violation  was  egregious.  
Applying  the  Forfeiture  Policy  Statement  and  the  statutory 
factors  to  the   instant  case  and   applying  the   inflation 
adjustments, we  believe that  a  ten thousand  dollar  ($10,000) 
forfeiture is warranted.

                      IV.  ORDERING CLAUSES

     9.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the  Act,7 and Sections  0.111, 0.311 and  1.80 of  the 
Rules,8 Phillips is hereby NOTIFIED of its APPARENT LIABILITY FOR 
A FORFEITURE in the amount of ten thousand dollars ($10,000)  for 
violating Sections 11.35(a), 11.52(d), 17.4(c), and  731560(a)(1) 
of the Rules.

     10.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Rules, within thirty days of the release date of this  NOTICE 
OF APPARENT LIABILITY, Phillips SHALL PAY the full amount of  the 
proposed forfeiture  or SHALL  FILE a  written statement  seeking 
reduction or cancellation of the proposed forfeiture.

     11.  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 should note the 
NAL/Acct. No. 200332280004, and FRN 0004-9421-24.

     12.  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. 200332280004.

     13.  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.  

     14.  Requests for payment of the full amount of this  Notice 
of Apparent Liability  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. 20554.9 

     15.  Under the Small Business Paperwork Relief Act of  2002, 
Pub L. No.  107-198, 116 Stat.  729 (June 28,  2002), the FCC  is 
engaged in  a two-year  tracking process  regarding the  size  of 
entities involved  in  forfeitures. If  you  qualify as  a  small 
entity and  if you  wish to  be  treated as  a small  entity  for 
tracking purposes, please  so certify  to us  within thirty  (30) 
days of this  NAL, either in  your response  to the NAL  or in  a 
separate filing to  be sent  to the Technical  and Public  Safety 
Division.   Your  certification  should  indicate  whether   you, 
including your parent  entity and its  subsidiaries, meet one  of 
the definitions  set forth  in  the list  provided by  the  FCC's 
Office of Communications Business Opportunities (OCBO) set  forth 
in Attachment  A  of this  Notice  of Apparent  Liability.   This 
information will  be  used  for  tracking  purposes  only.   Your 
response or  failure to  respond to  this question  will have  no 
effect on your  rights and responsibilities  pursuant to  Section 
503(b)  of  the  Communications  Act.   If  you  have   questions 
regarding any  of  the  information contained  in  Attachment  A, 
please contact OCBO at (202) 418-0990.

     16.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt 
Requested, to M.J. Phillips Communications, Inc., 920 Union Road, 
West Seneca, New York 14224.



                              FEDERAL COMMUNICATIONS COMMISSION




                              David A. Viglione
                              Resident Agent
                              Buffalo Office
_________________________

1 47 C.F.R.  11.35(a), 11.52(d), 17.4(a), and 73.1560(a)(1).
2 47 C.F.R.  11.61(a)(1)(i), 11.61(a)(2)(i)(A), 17.4(c), 
73.1125(d)(1), and 73.1870(b)(3).  The NOV cited Section 17.4(c), 
which was a typographical error since the text was for 
Sect.17.4(a), tower registration, the violation verbally advised 
during inspection and responded to by the licensee.

3 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to Section 503(b) of the Act, provides that ``[t]he term 
``willful'', when used with reference to commission or omission 
of any act, means that 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 Red 4387 (1991).

4 Section 312(f)(2), which also applies to Section 503(b), 
provides: [t]he term ``repeated'', when used with reference to 
the commission or omission of any act,  means the commission or 
omission of such act more than once or, if such commission or 
omission is continuous, for more than one day.

547 C.F.R.  1.80.

6 47 U.S.C.  503(b)(2)(D).

7 47 U.S.C.  503(b).

8 47 C.F.R.  0.111, and 0.311.

9 See 47 C.F.R.  1.1914.