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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Small Town Radio, Inc. ) File No.: EB-02-AT-291
) NAL/Acct. No. 200332480007
Licensee of Station WDGR(AM) ) FRN 0005-0483-35
Dahlonega, Georgia )
MEMORANDUM OPINION AND ORDER
Adopted: April 23, 2004 Released:
April 27, 2004
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order") we deny
the Petition for Reconsideration filed by Small Town
Radio, Inc. (``Small Town''), licensee of Station
WDGR(AM), Dahlonega, Georgia. Small Town seeks
reconsideration of the Forfeiture Order1 in which the
Chief, Enforcement Bureau (``Bureau''), found it liable
for a monetary forfeiture in the amount of fifteen
thousand dollars ($15,000), for willful and repeated
violation of Sections 11.35(a) and 73.49 of the
Commission's Rules (``Rules'').2 The noted violations
involve Small Town's failure to maintain operational
emergency alert system (``EAS'') equipment and failure
to enclose the station's antenna tower within an
effective locked fence.
2. On October 21, 2002, an agent from the Commission's
Atlanta, Georgia Field Office (``Atlanta Office'')
inspected radio station WDGR. The agent observed that
the gate to the fence surrounding WDGR's transmission
tower was open and several boards were missing from the
fence, allowing unrestricted access to the area within
the fence. During a telephone conversation, Don Boyd,
President of Small Town, told the agent that he was
aware of the fencing problem and intended to repair the
3. On the same day the agent also observed that WDGR's EAS
apparatus was not connected to any receiver and,
therefore, could not monitor the required EAS sources.
There were no EAS logs available at the station. The
operator on duty at WDGR was unfamiliar with the
operation of the EAS equipment and stated that he had
never sent an EAS test.
4. On November 13, 2002, the Atlanta Office issued a
Notice of Apparent Liability for Forfeiture (``NAL'') in
the amount of $15,000 to Small Town.3 Small Town did
not file a response to the NAL. On February 4, 2003,
the Bureau issued the Forfeiture Order, which imposed a
monetary forfeiture in the amount of $15,000. Small
Town subsequently filed a petition for reconsideration
of the Forfeiture Order.
5. Section 11.35(a) of the Rules requires that broadcast
stations have fully operational EAS equipment. The FCC
agent's investigation establishes that Small Town did
not have fully operational EAS equipment at its station
and failed to document any efforts to ensure its
operability. Small Town admits that this violation
already existed when it acquired WDGR. Based on the
facts before us, we find that Small Town willfully4 and
repeatedly5 violated Section 11.35(a) of the Rules.
6. Section 73.49 of the Rules requires the owner of an
antenna structure to enclose it within an effective
locked fence. The FCC agent's observations establish
that Small Town's tower was not surrounded by an
effective locked fence on October 21, 2002. Small Town
admits that this violation already existed when it
acquired WDGR. Based on the facts before us, we find
that Small Town willfully and repeatedly violated
Section 11.35(a) of the Rules.
7. No mitigation is warranted on the basis of Small Town's
correction of the violations. As the Commission stated
in Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994),
``corrective action taken to come into compliance with
Commission rules or policy is expected, and does not
nullify or mitigate any prior forfeitures or
8. Finally, Small Town contends that it is unable to pay
the monetary forfeiture and seeks cancellation or
reduction of the forfeiture. As support for its
position, Small Town cites Pinnacle Communications,
Inc., 11 FCC Rcd 15496 (1996)(``Pinnacle''), Benito
Rish, 10 FCC Rcd 2861 (1995), and Cornbelt Broadcasting
Co., 18 FCC Rcd 6336 (Enf. Bur. 2003) (``Cornbelt'').
As discussed below, we find that the cited cases do not
support cancellation or reduction of the forfeiture.
9. Small Town contends that its liabilities greatly exceed
its assets and it simply does not have the funds to pay
the forfeiture. It cites Pinnacle as precedent for
rescinding the NAL where the licensee's liabilities
exceed its assets. First, the Pinnacle case does not
require rescission of a NAL whenever the licensee's
liabilities exceed its assets. Second, the result in
Pinnacle depended on that case's particular facts. In
Pinnacle, the licensee was selling its station to a
buyer who would assume certain liabilities but would not
provide any cash to the licensee. In this case, on the
other hand, the petition for reconsideration indicates
that Small Town contracted to sell its station for a
substantial amount.7 We find that the Pinnacle case
does not support cancellation or reduction of the
10. Small Town contends that this case is similar to Benito
Rish, in which the Commission reduced a $10,000
forfeiture to $2,500, because both cases involve an
unprofitable AM station in a small market, which is the
licensee's only station. The cases are not, in fact,
similar. In Benito Rish, the Commission found that the
circumstances (a 5,000 watt daytime only station in a
community of 425) suggest an inherently low station
value. In this case, on the other hand, Small Town
contracted to sell its station for a substantial amount.
We find that Benito Rish does not support cancellation
or reduction of the forfeiture.
11. Small Town also argues that this case is similar to
Cornbelt, in which the Enforcement Bureau reduced a
monetary forfeiture from $17,000 to $1,000. In
Cornbelt, the licensee provided the necessary financial
information, including the licensee's gross revenues, to
warrant reducing the forfeiture to $1,000. In this
case, however, Small Town submits insufficient financial
information, which does not include Small Town's gross
12. The Commission has determined that, in general, a
licensee's gross revenues are the best indicator of its
ability to pay a forfeiture.8 The Enforcement Bureau
advised Small Town that, in order for the Bureau to
evaluate Small Town's financial hardship claim, it is
necessary for Small Town to provide documentation of its
gross revenues for the most recent three year period for
which this information is available. Small Town has not
provided that information. We find that no reduction is
warranted on the basis of financial hardship. 9
13. We have determined that Small Town's Motion should be
granted and that its petition for reconsideration should
be considered. We have examined Small Town's petition
for reconsideration pursuant to the statutory factors
prescribed by Section 503(b)(2)(D) of the Act,10 and in
conjunction with the Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines,11 as well. As a
result of our review, we conclude that Small Town
willfully and repeatedly violated Sections 11.35(a) and
73.49 of the Rules and find that neither cancellation
nor reduction of the monetary forfeiture is appropriate.
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
405 of the Act and Section 1.106 of the Rules, Small
Town's petition for reconsideration of the February 4,
2003, Forfeiture Order IS DENIED. For collection, the
Commission will file a proof of claim at the appropriate
time in Small Town's bankruptcy action.12
15. IT IS FURTHER ORDERED THAT a copy of this Order shall
be sent by first class mail and certified mail, return
receipt requested, to Small Town Radio, Inc., 3500 Lenox
Road, N.E. Atlanta, Georgia 300326.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 Small Town Radio, Inc., 18 FCC Rcd 1492 (Enf. Bur. 2003).
2 47 C.F.R. §§ 11.35(a) and 73.49.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480007 (Enf. Bur., Atlanta Office, released November 13,
4 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).
5 As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one day.
The Conference Report for Section 312(f)(2) indicates that
Congress intended to apply this definition to Section 503 of the
Act as well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991).
6 See also Callais Cablevision, Inc., 17 FCC Rcd 22626,
22629 (2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259
(1973); and Executive Broadcasting Corp., 3 FCC 2d 699, 700
7 According to our records, Small Town's application for
assignment of the license for WDGR to USK Broadcasting, Inc. was
granted on May 29, 2003 (File No. BAL-20030415AAK). The
assignment was consummated on November 25, 2003.
8 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
9 The FCC has received notice that Small Town has filed for
Chapter 11 bankruptcy. However, the filing for bankruptcy does
not necessarily preclude the imposition of a forfeiture. See 11
U.S.C. § 362(b); see also United States v. Commonwealth
Companies, Inc., 913 F.2d 518, 522-26 (8th Cir. 1990) (excepting
from bankruptcy imposed stays, suits by government to obtain
monetary judgment for past violations of the law); Coleman
Enterprises, Inc., 15 FCC Rcd 24385, 24389 notes 27-28 (2000),
recon. denied, 16 FCC Rcd 10016 (2001) (noting that a bankruptcy
filing does not preclude the Commission from assessing
forfeitures for violations of the Act and Rules). Moreover, the
filing for bankruptcy does not necessarily justify an adjustment
or cancellation of the forfeiture amount for a violation of the
Rules. See Adelphi Communications, 18 FCC Rcd 7652, 7654 ¶ 8
(Enf. Bur. 2003) (finding that a Chapter 11 bankruptcy filing --
alone, without financial documentation -- does not support an
inability to pay claim and thus does not provide a basis to
adjust or cancel an assessed forfeiture); see also North American
Broadcasting Co., Inc., 19 FCC Rcd 2754 ¶ 6 (Enf. Bur. 2004);
Pinnacle Towers, Inc., 18 FCC Rcd 16365, 16366-67 ¶ 7 (Enf. Bur.
2003); Friendship Cable of Texas, Inc., 17 FCC Rcd 8571, 8572-73
¶ 9 (Enf. Bur. 2002).
10 47 U.S.C. § 503(b)(2)(D).
11 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
12 See Coleman Enterprises, Inc., supra at 24390. See also
Commonwealth, supra at 523 note 9.