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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Greenwood Acres Baptist Church ) File No. EB-02-OR-302
Licensee of AM Broadcast ) NAL/Acct No. 200332620004
Station KASO located ) FRN 0007-7594-00
in Minden, Louisiana
Adopted: May 28, 2004
Released: June 2, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
forfeiture in the amount of thirteen thousand six hundred dollars
($13,600) to Greenwood Acres Baptist Church (``Greenwood''),
licensee of AM broadcast station KASO, Minden, Louisiana, for
willful and repeated violations of Sections 73.49 and
73.3526(a)(2) of the Commission's Rules (``Rules'').1 The noted
violations involve Greenwood's failure to maintain an effective
locked fence enclosing its antenna tower, and failure to maintain
all required material in its public inspection file.
2. On December 5, 2002, the Commission's New Orleans,
Louisiana Field Office (``New Orleans Office'') released a Notice
of Apparent Liability for Forfeiture (``NAL'') in the amount of
seventeen thousand dollars ($17,000).2 Greenwood filed a
response to the NAL on January 9, 2003.3
3. On September 12, 2002, an agent from the New Orleans
Office inspected AM broadcast station KASO in Minden, Louisiana.
At the time of the investigation, the agent observed that the
fence enclosing KASO's tower was unlocked and that a portion of
the fence sported a hole large enough for a small person to
easily step through.4 Also on September 12, 2002, the
Commission's agent conducted an inspection of the station's
public file and found that most of the required materials were
missing. On December 5, 2002, the New Orleans Office issued an
NAL for the fence and public inspection file violations. On
January 9, 2003, Greenwood submitted a response to the NAL. In
its response, Greenwood disputes the New Orleans Office's
determination that the fence was unlocked. Moreover, although
Greenwood does not dispute that some items were missing from the
public file (which it asserts is now complete), it argues that an
admonishment is in order, and not a forfeiture. Greenwood seeks
either a substantial reduction or cancellation of the forfeiture
citing the immediate measures it took to correct the violations
noted in the NAL, as well as an inability to pay any forfeiture
at all. The response is accompanied by one partial-year
4. The proposed 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
Greenwood'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 such other matters as justice may require.8
5. Section 73.49 of the Rules requires that antenna towers
having radio frequency potential at the base must be enclosed
within an effectively locked fence or other enclosure. On
September 12, 2002, an agent from the New Orleans Office found
that the gate on the fence enclosing KASO's tower was unlocked.
Greenwood disputes the finding, arguing that the fence remains
locked at all times except for maintenance purposes. 9 However,
the field agent clearly saw a broken hasp with a padlock that did
not secure the gate to the fence. The jury-rigged fix - a chain
that was to be wrapped around the fence and secured by a padlock
to prohibit unauthorized access - was also useless because the
padlock dangled from a chain which was hanging down alongside the
fence. The agent also discovered that a portion of the fence
contained a hole, rendering the fence ineffective.10 In its
Response, Greenwood does not address the hole referred to in the
NAL.11 We find based on the record that Greenwood willfully
violated Section 73.49 of the Rules.
6. Section 73.3526(a)(2) of the Rules requires that every
permittee or licensee of an AM, FM, TV or Class A TV station in
the commercial broadcast services shall maintain a public
inspection file containing the material relating to that station,
described in paragraphs (e)(1) through (e)(10) and (e)(13); and
additionally, every commercial AM or FM station shall maintain
for public inspection a file containing the material, relating to
that station, described in paragraphs (e)(12) and (e)(14). On
September 12, 2002 the Commission's agent determined that
``KASO's public inspection file was missing most of the required
material including the station's most recent application to the
Commission, a copy of the service contour map, a copy of the
current ownership report, requests from candidates for political
office, and the Issues/Programs Lists.''12 In its Response,
Greenwood does not dispute that there were some items missing
from the public file, but asserts that in cases ``virtually
identical'' to the facts presented in the instant case, licensees
were not fined, but merely admonished to bring the files up to
date.13 This argument is not persuasive. The cases that
Greenwood cites concern situations where one category of
mandatory documents was missing from the subject station's file.
In the instant case, the New Orleans Office found not one, but
five categories of items missing. As such there is ample
precedence to impose a monetary forfeiture,14 and we find that
Greenwood's violation of Section 73.3526(a)(2) was willful.
7. Greenwood seeks a substantial reduction or cancellation
of the proposed forfeiture by disputing the finding that the
fence was locked. The licensee also claims a history of overall
compliance, and a search of agency decisions confirms that KASO
is not the subject of prior Commission Rule violations. In
addition, Greenwood argues that the public file violation was
minor and immediately cured, showing good faith. We note that
the Commission has repeatedly stated that remedial actions taken
to correct a violation are not mitigating factors warranting
reduction of a forfeiture.15 Finally, Greenwood submits a copy
of its financial statement for a portion of fiscal year 2002.
8. In analyzing economic-hardship claims, the Commission
generally looks to companies' gross revenues as reasonable and
appropriate yardsticks to determine their ability to pay assessed
forfeitures.16 Indeed, the Commission stated that if companies'
gross revenues are sufficiently large, the fact that net losses
are reported, alone, does not necessarily signify inability to
9. As evidence of inability to pay, Greenwood submits a
single financial statement covering January to September of 2002,
which it claims ``illustrates that the licensee is operating at a
loss,''18 and ``does not take into account the cost of the
acquisition of the station [in 2000] or previous years' operating
losses.'' Moreover, Greenwood avers that the station has
``operated at a loss since it was acquired in September of
2000.''19 Greenwood explains that the income of KASO ``is
largely from donations from the congregation . . . . [with the]
remainder from spot sales.''20 However, the NAL requires
Greenwood to submit financial statements covering the most recent
three-year period (from 2000 to 2002) in order to demonstrate its
inability to pay. Additionally, Greenwood's mere assertions of
previous years' operating losses and station acquisition costs
are insufficient to underpin a finding of inability to pay.
Because Greenwood has not provided sufficient information from
which we can evaluate the financial condition of KASO, we must
reject its inability to pay claim.
10. We have examined Greenwood's response to the NAL
pursuant to the statutory factors above, and in conjunction with
the Forfeiture Policy Statement as well. As a result of our
review, we conclude that Greenwood willfully violated Sections
73.49 and 73.3526(a)(2) of the Rules and find that given
Greenwood's past history of overall compliance, we conclude that
a reduction of the forfeiture amount ($17,000) to $13,600 is
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,21 Greenwood Acres Baptist Church IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $13,600 for willfully violating
Sections 73.49 and 73.3526(a)(2) of the Rules.
12. 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.22
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. 200332620004, and FRN 0003762150. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
13. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to Fred A. Caldwell, Sr., Greenwood Acres Baptist
Church, 7480 Greenwood Road, Shreveport, Louisiana, 71119, and to
its counsel, Christopher D. Imlay, Booth, Freret, Imlay & Tepper,
P.C., 14356 Cape May Road, Silver Spring, Maryland 20904-6011,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
147 C.F.R. §§ 73.49, 73.3526(a)(2).
2See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332620004 (Enf. Bur. New Orleans Office, Dec. 5, 2002).
3Greenwood Response to Notice of Apparent Liability for
Forfeiture (``Response'') (filed Jan. 9, 2003).
4NAL at 1.
547 U.S.C. § 503(b).
647 C.F.R. § 1.80.
712 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
847 U.S.C. § 503(b)(2)(D).
9Response at 3.
11Id. At the time of the September 12, 2002 Commission
inspection, neither the station's general manager nor the
contract engineer were present, and although two salespeople were
in attendance and invited to look at the violations at issue,
they declined. Thus, Greenwood's Response pertained to a
different hole than the New Orleans Office referenced in its NAL.
Greenwood describes an intermittent one-foot gap between the
bottom of the fence and the water level of the pond that
surrounds the promontory where the tower is located. Greenwood
explains that an unprecedented drought resulted in two dry areas
at each end of the fence. Greenwood states that after the
subject inspection, and during the drought, Greenwood extended
the fence deeper into the water of the pond so that, unless the
pond went dry entirely, there would be no access to the tower by
unauthorized persons. Id.
12NAL at 1.
13Response at 4 citing Tabbak Broadcasting Co. (``KAZM''), 15 FCC
Rcd 11,899 (2000) (``Tabbak''); Sarkes Tarzian, Inc., 65 FCC 2d
127 (1977); EZ New Orleans, Inc., 15 FCC Rcd 7164 (1999).
14See KLDT-TV 55, Inc., 10 FCC Rcd 3198, 3200 (1995)(forfeiture
assessed for failure to include three categories of documents in
the public file).
15See, 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).
16See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
¶ 8 (1992); see also Forfeiture Policy Statement at 17106-07 ¶
17See, e.g., Local Long Distance, Inc., 15 FCC Rcd 24385 (2000),
recon. denied, 16 FCC Rcd 10023, 10025, 6 (2001); Independent
Communications, Inc., 14 FCC Rcd 9605 (1999), recon. denied, 15
FCC Rcd 16060, 16060, 2 (2000); Hoosier Broadcasting Corp.¸ 14
FCC Rcd 3356 (CIB 1999), recon. denied, 15 FCC Rcd 8640, 8641, 7
(Enf. Bur. 2000).
18Response at 5.
21 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
22 47 U.S.C. § 504(a).
23 See 47 C.F.R. § 1.1914.