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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Pittman Broadcasting Services, ) File No. EB-02-OR-360
LLC ) NAL/Acct No. 200332620006
Licensee of Broadcast Stations ) FRN 0006-1569-21
KAOK(AM), Lake Charles, )
Louisiana, and KAOK-FM,1 )
Adopted: August 5, 2004
Released: August 9, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
forfeiture in the amount of three thousand dollars ($3,000) to
Pittman Broadcasting Services, LLC (``Pittman''), licensee of
radio broadcast stations KAOK(AM), Lake Charles, Louisiana, and
KAOK-FM, DeRidder, Louisiana, for willful violation of Section
73.49 of the Commission's Rules (``Rules''),2 and cancel the
proposed monetary forfeiture in the amount of eight thousand
dollars ($8,000) because we now conclude Pittman did not violate
Section 11.35(a) of the Rules.3 The noted rules involve
Pittman's failure to maintain an effective locked fence enclosing
its antenna tower for KAOK(AM) and rules regarding maintaining
operational Emergency Alert System (``EAS'') equipment at both
2. In a February 14, 2003 Notice of Apparent Liability for
Forfeiture (``NAL''), the District Director of the Commission's
New Orleans, Louisiana Field Office (``New Orleans Office'')
issued a monetary forfeiture of fifteen thousand dollars
($15,000) to Pittman.4 On March 18, 2003, Pittman filed a
response to the NAL (``Response'').
3. On December 3, 2002, an agent from the New Orleans
Office (``agent'') inspected the co-located studio of co-owned
broadcast stations KAOK(AM) and KAOK-FM in Lake Charles,
Louisiana. The agent found that the stations' EAS equipment was
not functioning in accordance with Section 11.35(a) of the Rules.
Specifically, the encoder/decoder unit was not connected to any
receivers in order to monitor incoming alert signals. Moreover,
station personnel were unable to produce any notation in the
station logs to confirm that EAS tests were sent or received
between approximately October 27 and December 4, 2002, or that
the equipment had been removed from service for repair. The
stations' general manager also conceded that the stations had
neither received nor conducted EAS tests for the approximate time
frame of October 27, 2002 through December 4, 2002. In addition,
an inspection of the KAOK(AM) antenna tower - which has radio
frequency potential at the base - revealed that there was no
effectively locked fence or other enclosure, in violation of
Section 73.49 of the Rules. The inspection resulted in the
issuance of the subject NAL by the New Orleans Office finding
Pittman apparently liable for willful violation of Sections
11.35(a) ($8,000) and 73.49 ($7,000) of the Rules.
4. On March 17, 2003, Pittman filed a Response denying
that it violated Section 11.35(a) of the Rules and disputing the
fencing violation. Pittman also seeks a reduction of the
proposed forfeiture amount based on a past history of compliance
and financial hardship.
5. 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.7 In examining
Pittman's response, Section 503(b) of the Act requires the
Commission to 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
6. Section 11.35(a) of the Rules requires broadcast
stations to install and maintain operational EAS equipment so
that monitoring and transmitting functions are available during
the times when the stations and systems are operating. Section
11.35(b) of the Rules9 provides a caveat for permissible down-
time of the equipment of up to 60 days for repair and
replacement, so long as an entry is made in the broadcast station
log. Pittman does not dispute the fact that the stations' EAS
equipment was out of service, or that no notation was made to
that effect in its logs. However, after reviewing the record in
this case, including the declaration submitted by Michael
Schutta, General Manager,10 we conclude that the time frame that
KAOK(AM) and KAOK-FM operated without the EAS equipment -
approximately October 27, 2002, to December 4, 2002 - did not
exceed the number of days that are permitted for repair under
Section 11.35(b) of our Rules. We therefore conclude that the
monetary forfeiture for violation of Section 11.35(a) should be
7. 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. In a
detailed narrative, Pittman argues that the subject antenna tower
is effectively enclosed by natural and manmade barriers
(including a partial fence), precluding the need for additional
fencing.11 Pittman alleges that a perpetually marshy terrain,
makes ``foot access to the tower . . . impracticable, and
eliminates any likelihood of casual trespass.''12 Neither the
Rules nor case law permit ``natural barriers'' to meet the
requirements of Section 73.49 of the Rules, and Pittman provides
no support for this proposition.13 Moreover, at the time of
inspection and despite a rainstorm, the agent obtained direct
access to the antenna tower from the vehicle entrance off of
Highway 90. Finally, the station manager admitted that a fence
was needed, but that he had not gotten around to installing one.
Thus, we find that Pittman's violation of Section 73.49 of the
Rules was willful.14
8. In an attempt to mitigate the violation, Pittman avers
that a fence has now been constructed.15 We find that no
mitigation is warranted on the basis of Pittman's alleged
correction of the violation. As the Commission stated in Seawest
Yacht Brokers, ``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.''16
9. Pittman seeks a reduction of the forfeiture amount on
the basis of a history of compliance.17 After considering
Pittman's record of compliance, we conclude that a reduction of
the remaining forfeiture amount ($7,000 as reduced) to $5,600 is
10. Pittman also seeks a further reduction of the
forfeiture amount due to ``extreme financial hardship, making
payment of the any [sic] significant forfeiture difficult or
impossible.''18 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.19 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 pay.20
11. As evidence of an inability to pay, Pittman recounts a
February 2001 fire which allegedly destroyed the studio facility,
and claims that the station did not receive full financial
restitution from its insurance carrier. In addition, Pittman
avers that as a result of the fire, KAOK was off of the air from
February to November of 2001, resulting in lost listenership and
clientele. To further substantiate this claim, Pittman submits
tax returns from 1999, 2000 and 2001. Based on our review of
Pittman's supporting financial documentation, we find that an
inability to pay reduction of the remaining forfeiture amount
from $5,600 to $3,000 is warranted.
12. We have examined Pittman'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 Pittman willfully violated Section 73.49 of the
Rules, and that based on Pittman's history of compliance and
current financial situation a reduction in the forfeiture amount
from $7,000 to $3,000 is appropriate.
IV. ORDERING CLAUSES
13. 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 Pittman Broadcasting Services, LLC IS LIABLE FOR A
MONETARY FORFEITURE in the amount of three thousand dollars
($3,000) for willfully violating Section 73.49 of the Rules.
14. IT IS FURTHER ORDERED THAT, pursuant to Section 504(b)
of the Act,22 and Section 1.80 (f)(4) of the Rules, the portion
of the NAL concerning Pittman Broadcasting Services, LLC
violation of Section 11.35(a) of the Rules, IS CANCELLED.
15. 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.23
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 reference the
NAL/Acct. No. referenced in the caption. Requests for full
payment under an installment plan should be sent to: Chief,
Revenue and Receivables Group, 445 12th Street, S.W., Washington,
16. 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 Pittman Broadcast Services, LLC, 307 South
Jefferson Street, Covington, Louisiana 70433, and to its counsel,
Dan J. Alpert, 2120 N. 21st Road, Suite 400, Arlington, Virginia
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 The call sign was changed from KAOK-FM to KQLK, effective Feb.
2 47 C.F.R. § 73.49.
3 47 C.F.R. § 11.35(a).
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332620006 (Enf. Bur., New Orleans Office, rel. Feb. 14, 2003).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement'').
8 47 U.S.C. § 503(b)(2)(D).
9 47 C.F.R. § 11.35(b).
10 See Response, at Exhibit 3: Declaration of Michael Schutta,
General Manager. According to the Declaration of Michael
Schutta, the EAS equipment was taken out of operation on October
27, 2002, and re-installed on December 4, 2002.
11 Id. at 2-3.
12 Id.at 2.
13 Pittman's statement concerning natural barriers goes to
compliance with Section 1.1307 of the Rules which is not at issue
here. See 47 C.F.R. § 1.1307 (actions requiring environmental
14 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).
15 Id. at 3.
16 See Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), See
also AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002),
forfeiture ordered, 17 FCC Rcd 21866, 21875-76 (2002); 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).
17 Response at 5.
18 Id. at 4.
19 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
¶ 8 (1992); see also Forfeiture Policy Statement at 17106-07 ¶
20 See, e.g., Local Long Distance, Inc., 15 FCC Rcd 24385, 24389
(2000), recon. denied, 16 FCC Rcd 10023, 10025 (2001) (forfeiture
not deemed excessive where it represented approximately 7.9
percent of the violator's gross revenues); Hoosier Broadcasting
Corporation,14 FCC Rcd 3356 (CIB 1999), recon. denied, 15 FCC Rcd
8640, 8641 (Enf. Bur. 2002) (forfeiture not deemed excessive
where it represented approximately 7.6 percent of the violator's
gross revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com.
Car. Bur. 1992) (forfeiture not deemed excessive where it
represented approximately 3.9 percent of the violator's gross
21 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
22 47 U.S.C. § 504(b).
23 47 U.S.C. § 504(a).
24 See 47 C.F.R. § 1.1914.