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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
MAPA Broadcasting, L.L.C. ) File No. EB-01-OR-138
WSLA(AM) ) NAL/Acct. No. 200132620005
Slidell, Louisiana ) FRN 0005-0234-60
MEMORANDUM OPINION AND ORDER
Adopted: May 31, 2002 Released: June 4, 2002
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny a petition for reconsideration filed by MAPA
Broadcasting, L.L.C. (``MAPA''), licensee of Station WSLA(AM),
of a Forfeiture Order1 which issued a monetary forfeiture in
the amount of two thousand five hundred dollars ($2,500) to
MAPA for willful violations of Sections 11.35(a) and 73.49 of
the Commission's Rules (``Rules'').2 The noted violations
involved MAPA's failure to install operational Emergency Alert
System (``EAS'') equipment at WSLA(AM) and its failure to
enclose WSLA(AM)'s antenna tower within an effective locked
fence or other enclosure. For the reasons which follow, we
deny the petition for reconsideration.
2. On March 14, 2001, agents from the Commission's New
Orleans, Louisiana Field Office (``New Orleans Office'')
inspected WSLA(AM). During the inspection, the agents
determined that no EAS equipment was installed. In addition,
the agents observed that the gate to the fence surrounding
WSLA(AM)'s antenna tower was unlocked. The agents further
observed that, although WSLA(AM)'s antenna tower was grounded
at the base, the antenna included a ``skirt'' surrounding the
tower. The ``skirt'' had radio frequency potential and was
within reach from the ground near the base of the tower. The
agents also observed that the tower was located next to a
tract of houses and within one-half mile of a child care
3. On April 26, 2001, the New Orleans Office issued a
Notice of Violation (``NOV'') citing MAPA for violations of
Sections 11.35(a) and 73.49 of the Rules. On May 14 and May
21, 2001, MAPA submitted responses to the NOV stating that it
had ordered EAS equipment and locked the tower gate.
4. On July 24, 2001, the New Orleans Office issued a
Notice of Apparent Liability (``NAL'') to MAPA in the amount
of $15,000 for failure to install operational EAS equipment in
willful violation of Section 11.35(a) of the Rules and failure
to enclose the AM antenna tower within an effective locked
fence or other enclosure in willful violation of Section 73.49
of the Rules.3 In its response to the NAL, MAPA sought
reduction of the forfeiture amount.
5. In its Forfeiture Order, released December 19, 2001,
the Bureau concluded that MAPA violated Sections 11.35(a) and
73.49 of the Commission's Rules by failing to install
operational EAS equipment at WSLA(AM) and failing to enclose
WSLA(AM)'s antenna tower within an effective locked fence or
other enclosure. The Forfeiture Order found that the
violations were willful. In addition, the Forfeiture Order
stated that MAPA's use of a ``modified EBS [Emergency
Broadcast System] unit with an AM tuner'' capable of receiving
the EAS transmissions of a New Orleans AM station did not
comply with Section 11.35(a) of the Rules, and that the
licensee's claim that it was unclear as to the Commission's
EAS requirements did not warrant a reduction of the forfeiture
amount. Finally, the Forfeiture Order reduced the forfeiture
amount by nearly 85 percent, from $15,000 to $2,500, on the
basis of MAPA's inability to pay a larger amount. Following
the same proportions set out in the NAL, $1,325 of the
forfeiture is attributable to the EAS violation and $1,175 of
the forfeiture is attributable to the locked fence forfeiture.
6. MAPA filed a petition for reconsideration of the
Forfeiture Order on January 24, 2002. In this petition, MAPA
requests that we reconsider and remit the Forfeiture Order.
MAPA contends that only an admonishment is appropriate in this
case. MAPA states that the NOV in this case cited MAPA for
violating Sections 11.35(a) (failure to install operational
EAS equipment); 17.50 (failure to clean and paint antenna
structure); 73.49 (failure to enclose antenna structure within
an effective locked fence or other enclosure);
73.1820(a)(1)(iii) (failure to make appropriate entries in
station log). MAPA argues that it was unreasonable to add a
sanction for failure to comply with Section 73.1820(a)(1)(iii)
of the Rules, in addition to a sanction for violating Section
11.35(a) of the Rules. With respect to Section 17.50 of the
Rules, MAPA complains that the cleaning and painting of its
tower is not a proper basis for any forfeiture in this case.
7. Further, MAPA asserts that it has in place a fence that
locks appropriately and that this fence complies with
Commission requirements. MAPA states that at the time of the
inspection, the gate had been left open for yard maintenance,
despite a sign warning that the gate must be locked at all
times. MAPA argues that the fact that the gate was opened for
maintenance at the time of the inspection is not a violation
of Section 73.49 of the Rules. MAPA states that Section 73.49
of the Rules requires that ``ready access must be provided to
each antenna tower base for meter reading and maintenance
purposes at all times''.4 Moreover, MAPA contends that the
Commission has no evidence that the gate had been opened
except for maintenance on one occasion. In addition, MAPA
argues that its general manager was confused about the
licensee's EAS requirements, and that assessment of the base
forfeiture amount of $8,000 for the EAS violation and $7,000
for the ``alleged'' fencing violation is unwarranted in this
case. Further, MAPA asserts that all of the downward
adjustment criteria are applicable.5
8. In support of its argument regarding the downward
adjustment criteria, MAPA states that its failure to install
EAS equipment is a minor violation. It states that the second
criterion, good faith or voluntary disclosure, is also
applicable because in spite of its general manager's confusion
about the EAS requirements, it made a good faith effort to
comply by requesting information about its EAS obligations
during a Commission inspection in 1998, and by installing the
``modified EBS unit'' capable of receiving the EAS
transmissions of an AM station in New Orleans. In addition,
MAPA argues that it has a history of overall compliance. MAPA
states that its general manager has had 70 years of experience
in his broadcasting career. Finally, MAPA claims that in
reducing the forfeiture amount, the Forfeiture Order did not
demonstrate the basis for reducing the forfeiture amount to
$2,500 rather than a lower amount, or for retaining any
forfeiture amount at all.
9. We are not persuaded that rescission of the forfeiture
amount is warranted in this case. Although MAPA correctly
points out that the NOV cited MAPA for violations of Sections
17.50 and 73.1820(a)(1)(iii) of the Rules, no forfeiture was
issued based on these violations. Since these violations did
not form the basis for the forfeiture assessed in this case,
they are of no relevance to a review of the Forfeiture Order.
We therefore do not address those other matters here.
10. With respect to MAPA's arguments concerning the
forfeiture assessed for violating Section 73.49 of the Rules,
there is no dispute that the gate to the fence was unlocked at
the time of the inspection. The fact that the gate was left
open for yard maintenance does not provide a basis for
rescission or reduction of the forfeiture below $1,175 as the
licensee is responsible for ensuring compliance with our
rules.6 Moreover, MAPA's failure to ensure that the gate to
the fence was locked posed a threat to public safety, in light
of the tower's proximity to a tract of houses and a child care
center. Further, because the violation was observed during an
inspection, evidence that the gate had been left opened on
prior occasions is not necessary to impose a forfeiture for
violating Section 73.49 of the Rules.
11. With respect to the EAS violation, we do not believe
that not having the required EAS equipment, and therefore, not
being able to participate in the EAS program, is a minor
violation. In addition, with respect to a reduction based on
good faith, given the extensive broadcast experience of MAPA's
general manager, we reject its argument that the forfeiture
amount should be further reduced below $1,325 because its
general manager was confused as to the Commission's EAS
requirements or because it made some other EAS related efforts
in the past.7 Further, the violations in this case were
discovered by inspection; therefore, the violation was not
12. Regarding the licensee's arguments concerning a
reduction of the forfeiture amount based on inability to pay,
the Forfeiture Order explained the basis upon which we reduced
the forfeiture amount to $2,500. Specifically, the Forfeiture
Order concluded that a reduction to $2,500 was appropriate in
light of the gross revenues indicated by MAPA's 1998, 1999,
and 2000 tax returns.8 MAPA has not persuaded us that it
cannot afford this amount.
13. Finally, MAPA argues that the forfeiture should be
reduced because it has no history of prior violations. Had
MAPA's history of compliance with the Commission's rules been
raised previously, we likely would have reduced the forfeiture
from $15,000 to about $12,000, prior to reducing the
forfeiture to $2,500 for inability to pay. Given that the
forfeiture still would have been $2,500, we find no basis for
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Communications Act of 1934, as amended (``the
Act''),9 and Section 1.106 of the Rules,10 MAPA's petition for
reconsideration of the Forfeiture Order in this proceeding IS
15. IT IS FURTHER ORDERED that, pursuant to Section 503(b)
of the Act11 and Section 1.80 of the Rules,12 MAPA
Broadcasting, L.L.C. shall pay the amount of two thousand five
hundred dollars ($2,500) for the above-stated violations
within 30 days of the release date of this Order. Payment may
be made by check or money order, drawn on a U.S. financial
institution, payable to the Federal Communications Commission.
The remittance should be marked ``NAL/Acct. No. 200132620005,
FRN 0005-0234-60" and mailed to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. If
the forfeiture is not paid within the period specified, the
case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act.13 Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 Twelfth
Street, S.W., Washington, D.C. 20554.14
16. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail, Return Receipt Requested, to
counsel for MAPA Broadcasting, L.L.C., Christopher D. Imlay,
Booth, Freret, Imlay & Tepper, P.C., 5101 Wisconsin Avenue,
N.W., Suite 307, Washington, D.C. 20016, and to MAPA Broadcasting
L.L.C., WSLA(AM), P.O. Box 1175, 38230 Coast Blvd., Slidell,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 MAPA Broadcasting, L.L.C., 16 FCC Rcd 22403 (EB 2001).
2 47 C.F.R. §§ 11.35(a) and 73.49.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132620005 (Enf. Bur., New Orleans Office, released July 24,
4 47 C.F.R. § 73.49.
5 See 47 C.F.R. § 1.80(b)(4) Note to Paragraph (b)(4):
Section II. Adjustment Criteria for Section 503 Forfeitures
(minor violation; good faith or voluntary disclosure; history of
overall compliance; and inability to pay).
6 Sitka Broadcasting Co., Inc., 70 FCC 2d 2375, 2378 (1979).
8 See generally, PJB Communications of Virginia, Inc., 7 FCC
Rcd 2088 (1992) (concluding that the forfeiture amount was not
excessive in comparison to gross revenues).
9 47 U.S.C. § 405.
10 47 C.F.R. § 1.106.
11 47 U.S.C. § 503(b).
12 47 C.F.R. § 1.80.
13 47 U.S.C. § 504(a).
14 47 C.F.R. § 1.1914.