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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Piedmont Radio Co. ) File No. EB-02-AT-317
Licensee of AM Radio Station WPID, Piedmont, )
Alabama, and Owner of Unregistered Antenna ) NAL/Acct. No.
Structure At or Near Coordinates 33º 55' 45'' North )
Latitude by 085º35' 42'' West Longitude, in ) FRN 0007-7794-
Piedmont, Alabama. )
I.A. MEMORANDUM OPINION AND ORDER
Adopted: April 26, 2004 Released: April 28, 2004
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 by Piedmont Radio Co.
(``Piedmont''), licensee of radio station WPID(AM),
Piedmont, Alabama. Piedmont seeks reconsideration of
the Forfeiture Order1 in which the Chief, Enforcement
Bureau (``Bureau''), found it liable for a monetary
forfeiture in the amount of ten thousand dollars
($10,000) for willful and repeated violation of Sections
73.1125(a) and 17.4(a) of the Commission's Rules
(``Rules'').2 The noted violations involve Piedmont's
willful and repeated failure to maintain a presence at
its main studio during normal business hours and
register its antenna structure. For the reasons
discussed below, we reduce the forfeiture amount from
$10,000 to $3,000.
2. On June 26, 2002, an agent from the Commission's
Atlanta, Georgia Field Office (``Atlanta Office'')
attempted to inspect station WPID(AM)'s main studio;
however, the agent was unable to gain access to the
studio. On July 16 and August 21, 2002, the agent
telephoned station WPID(AM) but received no answer. On
August 26, 2002, the agent contacted WPID(AM)'s owner,
who confirmed that the studio had been unstaffed. On
June 26, 2002, the agent also inspected the antenna
structure, which did not display an Antenna Structure
Registration (``ASR'') number. The agent subsequently
checked the ASR data base and determined that the
structure was unregistered.
3. On October 15, 2002, the District Director of the
Atlanta Office issued a Notice of Apparent Liability for
Forfeiture (``NAL'')3 in the amount of ten thousand
dollars ($10,000) to Piedmont for willful and repeated
violation of Sections 73.1125(a) and 17.4(a) of the
Rules. Having no record of a response, on February 6,
2003, the Bureau released the Forfeiture Order,
affirming the NAL. On March 10, 2003, Piedmont filed a
petition for reconsideration of the Forfeiture Order.
In its petition for reconsideration, Piedmont does not
contest the violations, but does challenge the finding
that no response was submitted, presenting evidence that
a response was mailed by Certified Mail, Return Receipt
Requested and received by the Commission on November 12,
2002.4 Piedmont also submits the tax returns for 1999,
2000 and 2001, of its principal in support of its claim
of an inability to pay.
4. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act
of 1934, as amended (``Act''), 5 Section 1.80 of the
Rules,6 and The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (Forfeiture Policy
Statement).7 In examining Piedmont's petition, 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 any such other matters as justice
5. Section 73.1125(a) of the Rules requires a broadcast
station to maintain a main studio and a presence at its
main studio during normal business hours.9 Based on the
agent's observations and Piedmont's admission that it
did not maintain such a presence, we find that Piedmont
willfully10 and repeatedly11 violated Section 73.1125(a)
of the Rules.
6. Section 17.4(a) of the Rules provides that the owner of
an antenna structure that required notice to the Federal
Aviation Administration (``FAA'') must register the
antenna structure with the Commission. Piedmont's
antenna structure required FAA notification because it
exceeded 200 feet in height.12 Based upon the agent's
observations, the Commission's ASR database records and
Piedmont's admission, we find that Piedmont willfully
and repeatedly violated Section 17.4(a) of the
7. Piedmont does not challenge the Bureau's finding that
it violated Sections 73.1125(a) and 17.4(a) of the
Rules. Nevertheless, Piedmont seeks cancellation of the
forfeiture. In support of its request for cancellation,
Piedmont states that it now has full-time main studio
staffing during normal business hours and that it has
initiated efforts to obtain FAA clearance and to
register the tower with the Commission.13 No mitigation
is warranted on the basis of Piedmont's post NAL
corrective efforts. 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.'' 14
8. Finally, Piedmont asserts that payment of the
forfeiture will be a hardship that will ``take bread off
the owner's table'' and cause the owner's family very
great hardship. The Commission has determined that, in
general, a licensee's gross revenues are the best
indicator of its ability to pay a forfeiture.15 We have
reviewed the financial information provided, and we find
that this information provides a basis for reduction of
the forfeiture from the ten thousand dollars ($10,000)
imposed by the Forfeiture Order to three thousand
dollars ($3,000) on the basis of Piedmont's inability to
9. We have examined Piedmont's Petition for
Reconsideration pursuant to the statutory factors above,
and in conjunction with the Commission's Forfeiture
Policy Statement as well. As a result of our review, we
conclude that Piedmont willfully and repeatedly violated
Sections 73.1125(a) and 17.4(a) of the Rules and find
that, although cancellation of the monetary forfeiture
is not warranted, reduction of the forfeiture amount to
$3,000 is appropriate.
10. Because Piedmont has yet to register its tower,16 we
will require, pursuant to Section 308(b) of the Act,17
that Piedmont report to the Enforcement Bureau within
thirty (30) days of the release of this Order whether it
has achieved compliance with Section 17.4(a) of the
Rules. Piedmont's report must be submitted in the form
of an affidavit signed by an officer or director of the
licensee. If Piedmont fails to submit such a report or
we find that Piedmont has not come into compliance with
Section 17.51(b), we will consider further appropriate
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act18 and Section 1.106 of the Rules,19
Piedmont's petition for reconsideration of the February
26, 2003, Forfeiture Order IS GRANTED to the extent that
the monetary forfeiture amount IS REDUCED to three
thousand dollars ($3,000) and IS DENIED in all other
12. IT IS ALSO ORDERED that, pursuant Section 308(b) of the
Act, Piedmont must submit the report described in
Paragraph 10, above, within 30 days from the release of
this Order, to: Federal Communications Commission,
Enforcement Bureau, Spectrum Enforcement Division, 445
12th Street, S.W., Room 7-A 820, Washington, D.C.
20554, Attention: Peter Waltonen, Esquire.
13. 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.20 Payment shall
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 note NAL/Acct. No.200332480006, and FRN
0007-7794-32. 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. 2055421
14. IT IS FURTHER ORDERED THAT a copy of his Order shall be
sent by first class mail and certified mail, return
receipt requested, to Piedmont Radio Co., P.O. Box 227,
Piedmont, Al 36277 and to its counsel, Lewis H. Goldman,
Esq., 45 Dudley Court, Bethesda, Maryland 20814.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 Piedmont Radio Co., 18 FCC Rcd 1033 (Enf. Bur. 2003).
2 47 C.F.R. §§ 73.1125(a) and 17.4.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480006 (Enf. Bur., Atlanta Office, released October 15,
4 The Bureau has no record of receiving the response. However,
the Commission has determined that consideration of a previously
unconsidered pleading within a reconsideration proceeding is
appropriate where all the allegations are fully reviewed and
addressed prior to a determination in the reconsideration. See
California Metro Mobile Communications, Inc, 17 FCC Rcd 22,974,
22976, ¶ 10 (2002). See also Eagle Radio, Inc., 12 FCC Rcd 5105 ¶
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303
8 47 U.S.C. § 503(b)(2)(D).
9 To fulfill the function, a station must equip the main studio
with production and transmission facilities that meet applicable
standards, maintain continuous program transmission capability,
and maintain a meaningful management and staff presence. See
Main Studio and Program Origination Rules, 3 FCC Rcd 5024 (1988).
10 Section 312(f) of the Communications Act of 1934, as amended,
(``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).
11 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. 97th Cong. 2d Sess. 51 (1982).
See Southern California Broadcasting Company, 6 FCC Rcd 4387,
12 47 C.F.R. § 17.7(a).
13 As of the adoption date of this Order, a search of the
Commission's ASR Data Base reveals the tower remains
14 See also AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871
15 PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
16 See note 13, supra.
17 47 U.S.C. § 308(b)
18 47 U.S.C. § 405.
19 47 C.F.R. § 1.106.
20 37 U.S.C. §504(a).
21 47 C.F.R. § 1.1914.