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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
M.J. Phillips Communications, ) File No. EB-02-BF-344
Inc., ) NAL/Acct. No. 200332280006
Licensee of Station WJJL(AM) ) FRN 0004-9421-24
Niagara Falls, New York
Adopted: June 21, 2004 Released: June 23,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand
dollars ($10,000) to M.J. Phillips Communications,
Inc. (``M.J. Phillips''), licensee of AM Station
WJJL, Niagara Falls, New York, for its willful and
repeated violations of the power restriction,
Emergency Alert System (``EAS'') and antenna
structure requirements of Sections 73.1560(a)(1),
11.35(a), 11.52(d) and 17.4(a) of the Commission's
2. On September 17 and 18, 2002, the Commission's
Buffalo, New York Office (``Buffalo Office'')
conducted on-site inspections of Station WJJL. The
inspections revealed that the station had been
exceeding its authorized power limits by more than
105 percent,2 that its Emergency Alert System
(``EAS'') equipment had not been fully
operational,3 and had not been monitored, tested
and logged on a regular basis,4 and that its
antenna structure had not been registered.5 As a
result of the inspections, the Buffalo Office
issued M.J. Phillips a Notice of Violation on
September 23, 2002, and a Notice of Apparent
Liability for Forfeiture (``NAL'') on January 28,
2003.6 The NAL found that M.J. Phillips apparently
willfully and repeatedly violated the subject
Rules, and proposed base forfeiture amounts
totaling $10,000 ($4,000 for apparent failure to
operate within authorized power limits, $3,000 for
apparent failure to register its tower, $2,000 for
apparent failure to conduct required measurements
and testing, and $1,000 for apparent failure to
make required log entries).
3. M.J. Phillips sought cancellation or a substantial
reduction in the proposed forfeiture in its
response to the NAL. Specifically, M.J. Phillips
disputed the NAL's antenna registration findings,
and claimed no forfeiture should be imposed in that
regard. M.J. Phillips did not dispute the NAL's
findings regarding power excesses and EAS
deficiencies, but claimed that they were due to
unusual circumstances and further claimed that it
was unable to pay the proposed forfeiture amounts.
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''),7
Section 1.80 of the Rules,8 and the Commission's
Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines.9 In examining M.J.
Phillips' response, Section 503(b) of the Act
requires us to take into account the violations'
nature, circumstances, extent and gravity, and the
violator's degree of culpability, history of prior
offenses, ability to pay, and other such matters as
justice may require.10 We will respond to each of
M.J. Phillips' claims separately below.
5. With respect to the antenna structure registration
violation, M.J. Phillips claimed, without any
proof, that it registered the structure in March
2000.11 However, a search of Commission records
reflects that as of the adoption date of this
Order, M.J. Phillips' structure still has not been
registered as claimed. Therefore, we find that
cancellation of the proposed forfeiture of $3,000
is not warranted. Moreover, given that the Section
17.4(a) violation has continued, we will require
M.J. Phillips to submit an affidavit, signed by an
officer or director of the licensee, to the
Enforcement Bureau within 30 days of the release of
this Order, stating whether it has complied with
Section 17.4(a), and if so, providing the
registration number. We note that failure to
submit the affidavit, or failure to comply with
Section 17.4(a), may subject M.J. Phillips to
further appropriate enforcement action.
6. With respect to the power and EAS ``operating
deficiencies,'' M.J. Phillips did not dispute the
NAL's findings, but claimed that, at the time of
the inspection, the station was short-staffed, was
operating with limited management oversight, and
thus was unable to monitor the station's
operations.12 Additionally, M.J. Phillips claimed
that, a week prior to the inspection, its
transmitter equipment apparently was struck by
lightning and rendered inoperable.13 M.J.
Phillips, as licensee, is responsible for
monitoring its station's operations and ensuring
compliance with Commission requirements. M.J.
Phillips conceded that it was not monitoring its
station's operations, and thus that it was not
aware of the EAS and power violations prior to the
Buffalo Office's inspections and actions. We do
not find that the circumstances, or M.J. Phillip's
lack of oversight, mitigates or excuses its
violations, and thus do not find that cancellation
or reduction of the proposed forfeiture amounts is
7. Finally, M.J. Phillips claimed economic hardship,
noting that the station has been operating at a
loss and that it has filed for bankruptcy
protection in February 2003. As the NAL correctly
noted, we will consider canceling or reducing a
forfeiture on the basis of economic hardship, if
supported by financial documentation (i.e.,
``federal tax returns for the most recent three-
year period, financial statements prepared
according to generally accepted accounting
practices, or some other reliable and objective
documentation that accurately reflects the
petitioner's current financial status'').15 M.J.
Phillips did not provide any supporting financial
documentation, and thus we have no basis upon which
to assess its claim. We note that, in limited
circumstances where a licensee or regulate
relinquished control over assets, the Commission
has cancelled or reduced forfeitures based on
bankruptcy filings.16 However, because it appears
that M.J. Phillips has not relinquished control
over the station, its bankruptcy filing, alone,
does not preclude the imposition of forfeitures,17
and does not warrant reduction or cancellation of
the proposed forfeiture.18
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to
Sections 503(a) and (b) of the Act,19 and Sections
0.111, 0.311 and 1.80(f)(4) of the Rules,20 M.J.
Phillips Communications, Inc., IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand
dollars ($10,000) for its willful and repeated
violations21 of Sections 73.1560(a)(1),
73.11.35(a), 11.52(d) and 17.4(a) of the Rules.
For collection, the Commission will file a proof of
claim at the appropriate time in M.J. Phillip's
9. IT IS FURTHER ORDERED that, pursuant to Section
308(b) of the Act,23 M.J. Phillips Communications,
Inc., must submit the affidavit described in
paragraph 5 above, within 30 days from the releases
of this Order, to: Federal Communications
Commission, Enforcement Division, 445 12th Street,
S.W., Room 7-C802, Washington, D.C. 20554,
Attention: Ava Holly Berland.
10. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail
Return Receipt Requested to M.J. Phillips
Communications, Inc., 1224 Main Street, Niagra
Falls, New York, and its attorney, James R. Cooke,
Harris Beach, L.L.P., 1776 K Street, N.W., Suite
300, Washington, D.C. 20006.
David H. Solomon
Chief, Enforcement Bureau
147 C.F.R. §§ 73.1560(a)(1).11.35(a), 11.52(d) and 17.4(a).
2AM stations are required to maintain antenna input power
levels ``as near as is practicable'' to, and not less than
90 percent or more than 105 percent of, their authorized
power level. See 47 C.F.R. §§ 73.1560(a)(1). Station
WJJL's antenna input power levels exceeded its authorized
power limit of 1000 watts by more than 250 percent and its
authorized nighttime power limit of 55 watts by more than
900 percent, and thus greatly exceeded the 105 percent
3Broadcast stations are required to maintain fully
operational equipment EAS equipment, capable of monitoring
``two EAS sources.'' See 47 C.F.R. §§ 11.35(a), 11.52(d).
Station WJJL's equipment was only capable of monitoring one
4Broadcast stations are required to monitor, test, and log
such tests of, EAS equipment at regular intervals, and
repair and/or replace defective equipment within 60 days
(and to notify the appropriate Field Office if such
equipment cannot be repaired or replaced within the 60-day
period). See 47 C.F.R. §§ 11.35(a)-(c),
73.1820(a)(1)(iii). Station WJJL's logs did not reflect
the testing of EAS equipment since July 23, 2002, and did
not reflect any failure of such equipment.
5Section 17.4(a) of the Rules requires that Station WJJL's
antenna structure be registered with the Commission,
because it exceeds 200 feet and is thus subject to Federal
Aviation Administration (``FAA'') notification. However,
according to Commission records, Station WJJL's antenna
structure was not registered.
6M.J. Phillips Communications, Inc., NAL/Acct. No.
200332280006 (Enf. Bur., Buffalo Office, released January
747 U.S.C. § 503(b).
847 C.F.R. § 1.80.
912 FCC Rcd 17087 (1997), recon. denied, 15 F
11M.J. Phillips also claimed, and the Commission's records
reflect, that the coordinates for the antenna structure
are: 43 04? 52? North Latitude and 79 00? 58? -- not 70 00?
58? -- West Longitude, as stated in the NAL at ¶ 2.
12M.J. Phillips explained that one of its two owners, both
of whom were involved full-time in the station's day-to-day
operations, had surgery three months prior to and was
medically incapacitated at the time of the inspection.
M.J. Phillips did not explain why the other owner was not
monitoring and correcting the station's violations during
that time period.
13In support, M.J. Phillips had attached a September 29,
2002, invoice for repairs from Western Antenna & Tower
Service, which indicated that the damage to the transmitter
site might have been caused by a lightning strike. In
this connection, we note that M.J. Phillips undertook
corrective measures after the Buffalo Office's inspection.
The Commission expects violations that are observed during
inspection, and/or are the subject of an enforcement
action, to be corrected, but does not believe that such
corrective measures mitigate past violations. See AT&T
Wireless Services, Inc., 17 FCC Rcd 21866, 21875 ¶ 26
(finding that all Commission licensees and regulatees are
``expected to promptly take corrective action when
violations are brought to their attention,'' and that such
corrective action does not warrant reduction or
cancellation of a forfeiture for past violations); see also
Seawest Yacht Brokers, 9 FCC Rcd at 6099, 6099 ¶ 7 (1994);
TCI Cablevision of Maryland, Inc., 7 FCC Rcd 6013, 6014 ¶ 8
(1992); Sonderling Broadcasting Corp., 69 FCC 2d 289, 291
(1978); South Central Communications Corp., 18 FCC Rcd
700, 702-03 ¶ 9 (Enf. Bur. 2003).
14See Southern California Broadcating Co., 6 FCC Rcd 4387,
4387 ¶ 3 (1991) (stating that ``inadvertence . . . is at
best ignorance of the law,'' and thus is not mitigating
circumstance that warrants reduction or cancellation of a
forfeiture); see also Suburban Cellular, L.L.C., 14 FCC Rcd
13099, 13100 ¶ 5 (WTB 1999).
15NAL at ¶ 13.
16See Dennis Elam, Trustee for Bakcor Broadcasting, Inc.,
Debtor, 11 FCC Rcd 1137, 1137 ¶ 5 (1996); Interstate
Savings, Inc. d/b/a/ ISI Communications, 12 FCC Rcd 2934,
2936 ¶ 5 (CCB 1997)
17See 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).
18See Pinnacle Towers, Inc., 18 FCC Rcd 16365, 16366-67 ¶ 7
(Enf. Bur. 2003); Adelphi Communications, 18 FCC Rcd 7652,
7654 ¶ 8 (Enf. Bur. 2003); Friendship Cable of Texas, Inc.,
17 FCC Rcd 8571, 8572-73 ¶ 9 (Enf. Bur. 2002).
1947 U.S.C. §§ 503(a) and (b).
2047 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
21See 47 U.S.C. § 312(f)(1),(2); see also Southern
California Broadcasting Co., 6 FCC Rcd 4387, 4387-88 ¶ 5
22See Commonwealth, 913 F.2d at 523 note 15Coleman
Enterprises, Inc., 15 FCC Rcd at 24390; see also note 19,
2347 U.S.C. § 308(b).