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

In the Matter of                )
                                )
L.T. Simes II and Raymond Simes )    File No. EB-02-OR-196
                                )    
Licensee of KAKJ(FM),           )    NAL/Acct. No. 200232620007
Marianna, Arkansas              )
                                )    FRN 0007-2844-17
and                             )
                                )
Owner of  Unregistered Antenna Structure     )
near Marianna, Arkansas         )
                                )
West Helena, Arkansas           )

                        FORFEITURE ORDER 

Adopted:  April 29, 2003                Released:  May 1, 2003

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary forfeiture  in the  amount of  three thousand  dollars 
  ($3,000)  to L.T.  Simes II  and Raymond  Simes  (collectively, 
  ``Simes''), licensee of   FM station KAKJ, Marianna,  Arkansas, 
  and  owners of  an unregistered  antenna structure  located  at 
  geographic coordinates  34 47'  20'' North  latitude and  090 
  47' 08''  West longitude near  Marianna, Arkansas, for  willful 
  violation of Sections  11.35(a), 17.4(a) and 73.1350(a) of  the 
  Commission's Rules (``Rules'').1  The noted violations  involve 
  Simes's  failure   to  ensure  that   Emergency  Alert   System 
  (``EAS'')  equipment was  installed  and operational  at  KAKJ, 
  failure to  register the  antenna structure for  KAKJ with  the 
  Commission, and failure to operate KAKJ in accordance with  the 
  terms of its station authorization.

2.        On  July  22,  2002,  the  Commission's  New   Orleans, 
  Louisiana  Field  Office  (``New  Orleans  Office'')  issued  a 
  Notice of Apparent Liability for Forfeiture (``NAL'') to  Simes 
  for  a forfeiture  in the  amount of  fifteen thousand  dollars 
  ($15,000).2  Simes  filed a response to  the NAL on August  22, 
  2002.  

                         II.  BACKGROUND

3.        On May 22, 2002, an  agent from the New Orleans  Office 
  inspected an  antenna structure  which was located  at 34  47' 
  20''  North latitude  and 090  47'  08'' West  longitude  near 
  Marianna,  Arkansas.  The  agent  observed that  there  was  no 
  antenna structure  registration (``ASR'') number  posted on  or 
  near  the base  of the  antenna structure.   The owner  of  the 
  property  on which  the structure  was located  told the  agent 
  that  the  structure was  owned  by  the licensee  of  a  radio 
  station that  operates on 105.3 MHz  in West Helena,  Arkansas.  
  A search of Commission records indicated that KAKJ is  licensed 
  to operate on 105.3 MHz in West Helena, Arkansas.  

4.        On May 23, 2002, the agent inspected the studio of KAKJ 
  in West  Helena, Arkansas,  accompanied by  Raymond Simes,  the 
  general manager  and one of the  principal owners of KAKJ.   At 
  the  time  of  the inspection,  the  agent  observed  that  the 
  station  did  not   have  any  EAS  equipment  installed.    In 
  addition, there were  no station logs that would indicate  that 
  the station  had ever had EAS  equipment installed or that  the 
  EAS equipment  had been removed for  repairs.3  The agent  also 
  observed that the station authorization for KAKJ authorizes  an 
  antenna  structure  of  330  feet  in  height  and  located  at 
  geographic coordinates  34 47'  14'' North  latitude and  090 
  46' 03''  West longitude.   However, Mr.  Simes confirmed  that 
  the antenna  structure observed by the  agent the previous  day 
  at geographic coordinates 34 47' 20'' North latitude and  090 
  47'  08''  West  longitude was  owned  by  Simes  and  was  the 
  transmitting antenna  for KAKJ.  Thus,  the actual location  of 
  KAKJ's transmitting antenna was approximately one mile west  of 
  its authorized location.   Mr. Simes was unable to explain  the 
  discrepancy  between   the  authorized   location  and   actual 
  location  of  the transmitting  antenna.   Finally,  Mr.  Simes 
  stated that  he believed  that the antenna  structure had  been 
  properly   registered,   but  was   unable   to   provide   any 
  documentation to support this claim. 

5.        On June 14, 2002,  the agent searched the  Commission's 
  ASR  database and  determined that  the antenna  structure  for 
  KAKJ was not registered.

6.        On July 22, 2002, the New Orleans Office issued an  NAL 
  to Simes for a forfeiture in the amount of $15,000 for  failure 
  to  install EAS  equipment  at  KAKJ in  willful  violation  of 
  Section 11.35(a) of the Rules, failure to register the  antenna 
  structure for KAKJ  in willful violation of Section 17.4(a)  of 
  the Rules, and failure  to operate KAKJ in accordance with  the 
  terms  of its  station authorization  in willful  violation  of 
  Section 73.1350(a) of the  Rules.  In the response to the  NAL, 
  Simes does not dispute that the violations occurred, but  seeks 
  cancellation  or reduction  of  the forfeiture  amount.   Simes 
  asserts that KAKJ is located in a poor, rural area where it  is 
  difficult  to  find a  dependable  broadcast  engineer.   Simes 
  indicates  that a  contract engineer  provided the  appropriate 
  notification for the antenna structure to the Federal  Aviation 
  Administration in 1994, but asserts that, without an  engineer, 
  it was not aware of the rule changes implemented in 1996  which 
  required registration of  antenna structures with the FCC.   In 
  addition,  Simes  states  that  it  was  not  aware  that   the 
  geographic coordinates  for its antenna  structure, which  were 
  specified in  its original construction  permit application  in 
  1993 by  the contract  engineer who  prepared the  application, 
  were  incorrect.   Simes also  indicates  that  it  intends  to 
  install EAS  equipment and to  register its antenna  structure.  
  Finally,  Simes  asserts  that it  cannot  afford  to  pay  the 
  forfeiture and  provides copies  of its tax  returns for  1999, 
  2000 and 2001 in support of this assertion.

                      III.      DISCUSSION

7.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the  Communications Act  of 
  1934, as amended,  (``Act''),4 Section 1.80 of the Rules,5  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. denied, 15 FCC  Rcd 
  303  (1999)  (``Policy  Statement'').   In  examining   Simes'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.6

8.        Section 11.35(a) of the Rules provides that a broadcast 
  station must  ensure that  EAS equipment is  installed so  that 
  the monitoring and transmitting functions are available  during 
  the times the  station is in operation.  Simes acknowledges  in 
  its  response to the  NAL that  it did not  have EAS  equipment 
  installed at KAKJ at  the time of the May 23, 2002  inspection.  
  Accordingly, we conclude  that Simes violated Section  11.35(a) 
  of the Rules.

9.        Section 17.4(a) of the  Rules provides that,  effective 
  July 1,  1996, the owner  of any proposed  or existing  antenna 
  structure that  requires notification of proposed  construction 
  to the  FAA must register the  structures with the  Commission.  
  Simes's antenna structure  is approximately 330 feet in  height 
  and therefore required notification to the FAA.7  Simes  admits 
  that its antenna  structure was not registered.8  We  therefore 
  conclude that Simes violated Section 17.4(a) of the Rules.  

10.       Section 73.1350(a)  of  the Rules  provides  that  each 
  broadcast   licensee  is   responsible  for   maintaining   and 
  operating its  broadcast station in  accordance with the  terms 
  of  the  station authorization.   The  authorization  for  KAKJ 
  authorizes   an  antenna   structure  located   at   geographic 
  coordinates 34 47' 14'' North latitude and 090 46' 03''  West 
  longitude.   Simes does  not dispute  that KAKJ's  transmitting 
  antenna is located  at coordinates 34 47' 20'' North  latitude 
  and 090  47' 08'' West longitude,  which is approximately  one 
  mile  from  the coordinates  specified  in  the  authorization.  
  Accordingly,   we   conclude  that   Simes   violated   Section 
  73.1350(a) of the Rules.

11.       We also conclude that Simes's violations were  willful.  
  The term  ``willful,'' as used  in Section 503(b)  of the  Act, 
  does  not  require  a  finding  that  the  rule  violation  was 
  intentional  or  that  the  violator  was  aware  that  it  was 
  committing  a rule  violation.9  Rather,  the term  ``willful'' 
  simply  requires that  the  violator  knew it  was  taking  the 
  action in question,  irrespective of any intent to violate  the 
  Commission's rules.10  Simes  asserts that it was not aware  of 
  the changes to the antenna structure rules implemented in  1996 
  which  required registration  of  antenna structures  with  the 
  FCC.  However,  we note that licensees  are expected to  become 
  familiar with and comply with the Commission's rules.11   Simes 
  offers no  evidence of what  steps, if any,  it took to  become 
  familiar  with   and  comply  with   the  Commission's   rules.  
  Moreover,  while Simes  claims  that the  incorrect  geographic 
  coordinates  were  provided   by  the  contract  engineer   who 
  prepared its original construction permit application in  1993, 
  the Commission  has long  held that  licensees are  responsible 
  for   the  acts   and   omissions  of   their   employees   and 
  contractors.12   Furthermore, Simes  certified in  its  license 
  application for  KAKJ that  it had constructed  the station  in 
  accordance  with  its construction  permit,13  which  specified 
  that  the antenna  structure was  to be  located at  geographic 
  coordinates 34 47' 14'' North latitude and 090 46' 03''  West 
  longitude.

12.       In addition, although Simes  indicates that it  intends 
  to  install   EAS  equipment  and   to  register  its   antenna 
  structure,  the  Commission  has  stated  that   post-violation 
  remedial  efforts to  correct a  violation are  not  mitigating 
  factors  warranting reduction  of a  forfeiture.14  Simes  also 
  asserts  that it  cannot afford  to  pay the  proposed  $15,000 
  forfeiture  and provides  its tax  returns for  1999, 2000  and 
  2001  in  support  of  this  assertion.   The  Commission   has 
  repeatedly held  that a company's gross  revenues are the  best 
  indicator  of  its  ability  to  pay  a  forfeiture.15    After 
  considering the financial documentation submitted by Simes,  we 
  conclude  that  reduction  of  the  forfeiture  to  $3,000   is 
  appropriate.

13.       We have examined Simes'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  Simes  willfully  violated  Sections  11.35(a), 
  17.4(a)  and  73.1350(a)  of  the  Rules,  but  we  reduce  the 
  forfeiture  proposed  for  these  violations  from  $15,000  to 
  $3,000.

14.       Finally, we  note that  a  search of  Commission's  ASR 
  database revealed that, as  of the release date of this  Order, 
  Simes still had  not registered its antenna structure with  the 
  Commission.  In  addition, under Section  73.1690(b)(2) of  the 
  Rules,16 a  broadcast licensee must file  an application for  a 
  construction  permit on  FCC Form  301 to  make any  change  in 
  station    geographic   coordinates,    including    coordinate 
  corrections of  more than 3 seconds  latitude and/or 3  seconds 
  longitude.   To date,  no such  application has  been filed  to 
  correct  the coordinates  for KAKJ.   Moreover, it  is  unclear 
  from the record  whether Simes has yet installed EAS  equipment 
  at KAKJ.   Accordingly, we  will require,  pursuant to  Section 
  308(b)  of  the  Act,  that  Simes  submit  a  report  to   the 
  Enforcement Bureau within 30 days of the release of this  Order 
  demonstrating   that  it   has  filed   an  antenna   structure 
  registration  application and  an  application to  correct  the 
  station  coordinates  and  installed  EAS  equipment.    Simes' 
  report must be submitted in the form of an affidavit signed  by 
  an officer of the licensee.

                      IV.  ORDERING CLAUSES

15.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503 of  the Act, and  Sections 0.111, 0.311  and 1.80(f)(4)  of 
  the Rules,17 L.T. Simes, II and Raymond Simes ARE LIABLE FOR  A 
  MONETARY FORFEITURE  in the  amount of  three thousand  dollars 
  ($3,000)  for  willful  and  repeated  violation  of   Sections 
  11.35(a), 17.4(a) and 73.1350(a) of the Rules.

16.       IT IS FURTHER ORDERED that, pursuant to Section  308(b) 
  of  the  Act,  Simes  must  submit  the  report  described   in 
  paragraph 14  no later than thirty (30)  days from the date  of 
  release of this  Order to:  Federal Communications  Commission, 
  Enforcement Bureau, Technical  and Public Safety Division,  445 
  12th Street, S.W., Washington, D.C. 20554, Attention:   Kathryn 
  Berthot, Room 7-C802.

17.       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.   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.18  Payment may be  made by mailing a  check 
  or  similar instrument,  payable to  the order  of the  Federal 
  Communications  Commission,   to  the  Federal   Communications 
  Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.   The 
  payment  should reference  NAL/Acct. No.  200232620007 and  FRN 
  0007-2844-17.  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. 
  20554.19

18.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be sent by first class mail and certified mail, return  receipt 
  requested, to L.T. Simes, II and Raymond Simes, P.O. Box  2870, 
  West Helena, Arkansas 72390.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1 47 C.F.R.  11.35(a), 17.4(a) and 73.1350(a).  

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232620007 (Enf. Bur.,  New Orleans Office,  released July  22, 
2002).    

  3 EAS activations and tests, failure to receive such tests  and 
EAS equipment malfunctions must be  recorded in the station  log.  
See 47 C.F.R.  11.35(a)-(b), 11.55(c)(7) and 11.61(b).

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

  5 47 C.F.R.  1.80.

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

  7 See 47 C.F.R.  17.7 (providing that notification to the  FAA 
is required for antenna structures that are more than 200 feet in 
height).

  8 Owners  of antenna  structures in Arkansas  were required  to 
register their existing antenna structures during a 30-day filing 
window between January 1 to  January 31, 1998.  Streamlining  the 
Commission's Antenna Structure  Clearance Procedure and  Revision 
of Part  17 of  the Commission's  Rules Concerning  Construction, 
Marking and Lighting of Antenna Structures, 11 FCC Rcd 4272, 4302 
(1995).  

  9 Section  312(f)(1) of the Act,  47 U.S.C.  312(f)(1),  which 
applies to violations  for which forfeitures  are assessed  under 
Section 503(b) of the Act, provides that ``[t]he term  `willful,' 
... means the conscious and deliberate commission or omission  of 
such act, irrespective of any intent to violate any provision  of 
this Act or any rule  or regulation of the Commission  authorized 
by this Act ....''  See  Southern California Broadcasting Co.,  6 
FCC Rcd 4387 (1991).  

  10  Id.  

  11  Sitka Broadcasting  Company, Inc.,  70  FCC 2d  2375,  2378 
(1979), citing Lowndes County Broadcasting Company, 23 FCC 2d  91 
(1970) and Emporium Broadcasting Company, 23 FCC 2d 868 (1970).

  12  See  MTD,  Inc.,  6  FCC  Rcd  34,  35  (1991);  Wagenvoord 
Broadcasting Co., 35 FCC 2d 361 (1972).

  13 File No. BLH-19950713KA.

  14 See  e.g., AT&T Wireless Services,  Inc., 17 FCC Rcd  21866, 
21871 (2002);  Seawest  Yacht Brokers,  9  FCC Rcd  6099  (1994); 
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973). 

  15  See Long  Distance  Direct, Inc.,  15  FCC Rcd  3297,  3305 
(2000); PJB Communications  of Virginia,  Inc., 7  FCC Rcd  2088, 
2089 (1991).  

  16 47 C.F.R.  73.1690(b)(2).

  17 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  18 47 U.S.C.  504(a).

  19 See 47 C.F.R.  1.1914.