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                           Before the
                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:

                        I.   INTRODUCTION

     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.

                        II.   BACKGROUND

     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 
        fence.

     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.

                         III. DISCUSSION

     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 
        violations.'' 6

     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 
        forfeiture 

     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 
        revenues.  

     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, 
2002).

     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 
(1966).

     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, 
2089 (1992). 

     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 
(1999).

     12 See Coleman Enterprises, Inc., supra at 24390.  See  also 
Commonwealth, supra at 523 note 9.