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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Cornbelt Broadcasting Co. ) File No. EB-02-
Licensee of WHOW(AM) and WHOW-FM ) NAL/Acct. No.
Clinton, Illinois ) FRN: 0003-7736-
MEMORANDUM OPINION AND ORDER
Adopted: March 31, 2003 Released:
April 2, 2003
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''),
we grant in part and deny in part the petition for
reconsideration filed on November 27, 2002, by Cornbelt
Broadcasting Co. (``Cornbelt''). Cornbelt seeks
reconsideration of the Forfeiture Order1 in which the Chief,
Enforcement Bureau (``Bureau''), found it liable for a
monetary forfeiture in the amount of $17,000 to, for
willfully and repeatedly violating Sections 11.35(a),
17.4(g), and 73.49 of the Commission's Rules (``Rules'').2
The noted violations involve Cornbelt's failure to have an
operational Emergency Alert System (``EAS'') decoder, post
the antenna structure registration (``ASR'') number, and
enclose its antenna structure within effective locked fences
or other enclosures. For the reasons discussed below, we
reduce the monetary forfeiture to $1,000.
2. Cornbelt is the licensee of radio stations
WHOW(AM) and WHOW-FM in Clinton, Illinois, and owns those
stations' antenna structures. On February 25, 2001, the
Bureau's Chicago, Illinois, District Office (``Chicago
Office'') received a complaint alleging that WHOW(AM) and
WHOW-FM were operating in violation of various Commission
rules. As a result of that complaint, an agent from the
Chicago Office inspected those stations on April 25, 2001.
During the inspection, the agent observed that the stations'
EAS decoder was inoperative and there were no log entries
indicating why the stations did not receive EAS tests.
Additionally, the agent observed that the ASR number was not
posted on or near the base of the antenna structure. The
agent also observed that the AM station antenna structure
was not enclosed by an effective, locked fence.
3. On May 7, 2001, the Chicago Office issued Official
Notices of Violation (``NOV'') to Cornbelt citing violation
of Sections 11.35(a), 17.4(g), and 73.49 of the Rules and
other violations. Cornbelt did not respond to the NOVs.
4. On February 27, 2002, a second agent from the
Chicago Office inspected stations WHOW(AM) and WHOW-FM. The
agent observed that the stations' EAS decoder was
inoperative and there were no log entries indicating why the
stations did not receive EAS tests; that the ASR number was
not posted on or near the base of the antenna structure; and
that the antenna structure was not enclosed by an effective,
5. On June 18, 2002, the District Director of the
Chicago Office issued a $17,000 Notice of Apparent Liability
for Forfeiture (``NAL'') to Cornbelt for willful and
repeated violation of Sections 11.35(a), 17.4(g), and 73.49
of the Rules.3 Cornbelt did not file a response to the
NAL. On October 31, 2002, the Bureau released a Forfeiture
Order affirming the forfeiture proposed by the NAL. On
November 27, 2002, Cornbelt filed a petition for
reconsideration of the Forfeiture Order. Cornbelt does not
dispute the violations but requests cancellation of the
forfeiture. Cornbelt argues that a history of overall
compliance mitigates the violations and that it is unable to
pay the forfeiture. To support its inability to pay claim,
Cornbelt submits financial statements for 1998, 1999, 2000
and 2001. In addition, Cornbelt states that stations
WHOW(AM) and WHOW-FM ``have been forced off the air . . .
The company . . . may not be able to secure the necessary
funds to make all equipment purchases and repairs in order
to recommence broadcast operations.''4 Cornbelt's petition
for reconsideration does not indicate whether it complied
with Sections 11.35(a), 17.4(g), and 73.49 of the Rules
while its radio stations were still operating and does not
indicate how it will achieve compliance in the event that
its stations resume operation.
6. Cornbelt does not have a history of overall
compliance. The Commission originally detected Cornbelt's
violations of Sections 11.35(a), 17.4(g), and 73.49 of the
Rules on April 25, 2001, and issued NOVs for those
violations on May 7, 2001. These violations continued at
least until February 27, 2002. Given this extended period
of noncompliance and the recurrence of the violations after
the issuance of NOVs, we cannot find that Cornbelt has a
history of overall compliance.5 We find, however, on the
basis of the financial information provided by Cornbelt,
that Cornbelt is unable to pay the full forfeiture amount
and that the forfeiture amount should be reduced to $1,000.
7. There is no evidence that Cornbelt will actually
comply with Sections 11.35(a), 17.4(g), and 73.49 of the
Rules in the event that its stations resume broadcasting.
Accordingly, we will require, pursuant to Section 308(b) of
the Act,6 that Cornbelt report to the Enforcement Bureau no
more than thirty (30) days prior to resuming broadcasting
how it plans to achieve compliance with Sections 11.35(a),
17.4(g), and 73.49 in the event that its stations resume
broadcasting. Cornbelt's report must be submitted in the
form of an affidavit signed by an officer or director of the
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act,7 and Section 1.106 of the Rules,
Cornbelt's petition for reconsideration of the October 31,
2002, Forfeiture Order IS GRANTED to the extent that the
monetary forfeiture IS REDUCED to $1,000 and IS DENIED in
all other respects.
9. IT IS ALSO ORDERED that, pursuant Section 308(b)
of the Act, Cornbelt must submit the report described in
Paragraph 7, above, no more than thirty (30) days prior to
resuming broadcasting, to Federal Communications Commission,
Enforcement Bureau, Technical and Public Safety Division,
445 12th Street, S.W., Room 7-A820, Washington, D.C. 20554,
Attention: Thomas D. Fitz-Gibbon, Esq.
10. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within 30
days of the release of this Order.8 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.9 Payment 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 FCC Registration
Number (``FRN'') referenced above, and should also note the
NAL/Acct. No. referenced above. Requests for full payment
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.10
11. IT IS FURTHER ORDERED that a copy of this Order
shall by sent by first class and by certified mail, return
receipt requested, to Mr. James R. Livesay, II, Cornbelt
Broadcasting Co., South Route 51, R.R. 2, Box 117M, Clinton,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 17 FCC Rcd 21553 (Enf. Bureau 2002).
2 47 C.F.R. §§ 11.35(a), 17.4(g), 73.49.
3 Cornbelt Broadcasting Co., NAL/Acct. No. 200232320006
(Enf. Bur., Chicago District Office, rel. June 18, 2002).
4 In a letter dated November 5, 2002, Cornbelt informed the
Commission that stations WHOW(AM) and WHOW-FM were off the
air as the result of vandalism and the destruction of
equipment by a former employee. The Commission's Media
Bureau granted permission for WHOW(AM) and WHOW-FM to be
silent and the Commission's license records indicate that
those stations remain silent.
5 See TV 45 Productions, Inc., 17 FCC Rcd 11259, 11261 (Enf.
Bur. 2002), Mount Rushmore citing Commercial Radio Service
Corp., 16 FCC Rcd 3543, 3544 (Enf. Bur., Tech. & Pub. Safety
Div. 2001) (duration of violation considered in determining
whether there is a history of overall compliance).
6 47 U.S.C. § 308(b)
7 47 U.S.C. § 405.
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.