Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
                                )
Palmetto Broadcasting Company,   )    File No. EB-03-AT-085
Inc.                             )    NAL/Acct. No. 200332480024
Anderson, South Carolina         )    FRN 0008-9109-45
                                )



                        FORFEITURE ORDER

     Adopted:  September 3, 2004        Released:  September 8, 
     2004      

By the Chief, Enforcement Bureau:

  I.   INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary forfeiture  in  the  amount  of  two   thousand  dollars 
($2,000) to Palmetto  Broadcasting Company, Inc.  (``Palmetto''), 
licensee of station WAIM-AM, Anderson, South Carolina, and  owner 
of an unregistered antenna structure utilized by station WAIM-AM, 
for willful  and repeated  violation of  Section 17.4(a)  of  the 
Commission's Rules  (``Rules'').1  The  noted violation  involves 
Palmetto's failure to register its antenna structure.

     2.On May 7,  2003, the Commission's Atlanta, Georgia  Office 
(``Atlanta Office'') issued  a Notice of  Apparent Liability  for 
Forfeiture (``NAL'') to Palmetto in  the amount of five  thousand 
dollars ($5,000).2  Palmetto filed a response on June 2, 2003.

II.          BACKGROUND

     2.   On April  16,  2003,  an agent  from  the  Commission's 
Atlanta Office  conducted  an  inspection  of  station  WAIM-AM's 
antenna structure.  The  agent checked  the Commission's  Antenna 
Structure Registration Database and determined that the structure 
was not  registered.  Palmetto  owns  the antenna  structure  and 
station WAIM-AM's license requires that the antenna structure  be 
painted and lighted because it is over 200 feet tall.  

     3.   On April  16, 2003,  the agent  also inspected  station 
WAIM-AM's Emergency Alert System (``EAS'') equipment.  When asked 
to produce station  logs for the  previous three months,  station 
personnel  could  not  provide  any  records  of  EAS  tests   or 
activations, reasons  for failure  to  receive and  conduct  such 
tests, or any entries showing EAS equipment had been removed from 
service for repair.  Further, in response to a direct question by 
the agent, the station's general manager stated that he could not 
remember when the station had last conducted an EAS test.   Based 
upon the  station manager's  contemporaneous statements  and  the 
absence of any required records, the agent concluded that station 
WAIM-AM had not conducted either weekly or monthly tests for  the 
immediate prior three-month period.  On May 7, 2003, the  Atlanta 
Office issued  an  NAL  to  Palmetto  for  willful  and  repeated 
violation of Sections 11.61(a) and 17.4(a) of the Rules.  In  its 
response, Palmetto  claims  that,  contrary  to  the  allegations 
contained in the NAL, it does monitor and conduct both weekly and 
monthly tests of the EAS, but acknowledges that it was unable  to 
produce  supporting  logs.   Palmetto  states  that  an  employee 
accidentally  discarded  the  logs.  Palmetto  supplemented   its 
response with a sworn statement by its general manager concerning 
the EAS  testing.  Further,  Palmetto  admits  that  its  antenna 
structure  is  not  registered,  but  does  not  agree  that  the 
violation was willful or  repeated.  Finally, Palmetto  discusses 
its poor financial  situation and  provides copies  of its  2000, 
2001,  and  2002  tax  returns,  presumably  to  demonstrate  its 
inability to pay the forfeiture.   

III.       DISCUSSION

     4.   The forfeiture  amount in  this  case was  proposed  in 
accordance with Section 503(b) of the Communications Act of 1934, 
as amended  (``Act''),3  Section  1.80 of  the  Rules,4  and  The 
Commission's Forfeiture Policy Statement and Amendment of Section 
1.80 of the Rules to  Incorporate the Forfeiture Guidelines.5  In 
examining Palmetto'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  other such matters as justice  may 
require.6    

     5.   Section 11.61 of the Rules requires broadcast  stations 
to (a) conduct  monthly EAS tests  from designated local  primary 
EAS sources and retransmit the monthly test within 60 minutes  of 
its receipt and (b) conduct tests of the EAS header and EOM codes 
at least once  a week  at random  days and  times.7  The  Atlanta 
Office found that Palmetto had failed to conduct EAS tests for at 
least the three-month period prior  to the inspection based  upon 
its failure to be able to  produce EAS logs for that  time-period 
and the  general  manager's  contemporaneous  statement  that  he 
``could not remember the last time the station had conducted  EAS 
tests.''  In its response, Palmetto's general manager takes issue 
with the  assertion in the NAL as to the meaning of his statement 
given at  the  time  of the  inspection.  Palmetto  claims  that, 
although it did monitor and  conduct both weekly and monthly  EAS 
tests, it was unable to  produce the requested logs because  they 
had been  inadvertently  discarded.8  Palmetto  supplemented  its 
response with a sworn statement of its general manager indicating 
that it did conduct weekly and monthly tests of the EAS system as 
of the date of the inspection  and for at least the three  months 
immediately prior to the inspection.  After reviewing the  record 
in this case, we find  that the ambiguity of the  contemporaneous 
statement does not support a finding that Palmetto willfully  and 
repeatedly violated Section  11.61 by failing  to conduct  weekly 
and monthly  tests.   Therefore, we  cancel  the portion  of  the 
forfeiture proposed  for violation  of  Section 11.61(a)  of  the 
Rules.    

     6.   Section 17.4(a) of the Rules requires that the owner of 
any proposed antenna structure  that requires notice of  proposed 
construction to  the  Federal Aviation  Administration  (``FAA'') 
must register  the  structure with  the  Commission.   Palmetto's 
antenna structure required notice to the FAA, and thus Commission 
registration, because the structure  exceeded 200 feet in  height 
above ground.9  As of April 16, 2003, the date of the inspection, 
Palmetto had failed to register its antenna structure.  In  fact, 
Commission records indicate that the antenna structure still  has 
not been registered.  Although Palmetto claims that it had  other 
priorities, that the Commission's Antenna Structure  Registration 
Database  is  not  user-friendly,  and  that  it  had  difficulty 
obtaining the FAA aeronautical study number, these  circumstances 
do  not  justify  Palmetto's  failure  to  register  its  antenna 
structure.  

     7.   Palmetto  disagrees  that  its  violation  of   Section 
17.4(a) of the Rules was willful or repeated arguing that it  has 
attempted  several  times  to  register  its  antenna  structure.  
Because Palmetto  was  admittedly  aware of  the  requirement  to 
register its  antenna structure  but  failed to  do so,  we  find 
Palmetto's failure  to  register  its  antenna  structure  to  be 
willful10 and  repeated11 violations  of Section  17.4(a) of  the 
Rules.  

     8.   Finally, Palmetto  provides its  2000, 2001,  and  2002 
federal  income  tax  returns   presumably  to  demonstrate   its 
inability  to   pay   the  forfeiture.    After   reviewing   the 
documentation, we conclude that reduction of the remaining $3,000 
forfeiture to $2,000 is warranted in this case.        

     9.   Palmetto has stated that its antenna structure still is 
not  registered  and  our  search  of  the  Commission's  Antenna 
Structure  Registration  Database   confirms  that   it  is   not 
registered as  of  August  25, 2004.   Accordingly,  we  require, 
pursuant to Section 308(b) of the Act,12 that Palmetto report  to 
the Enforcement Bureau  no more than  thirty (30) days  following 
the release of  this Order  how it has  achieved compliance  with 
Section 17.4 of the Rules for its antenna structure.   Palmetto's 
report must be submitted in the form of an affidavit signed by an 
officer or director of Palmetto. 

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,13 Palmetto Broadcasting Company, Inc. IS LIABLE FOR  A 
MONETARY  FORFEITURE  in  the  amount  of  two  thousand  dollars 
($2,000) for its  willful and  repeated failure  to register  its 
antenna structure in violation of Section 17.4(a) of the Rules.

     12.  IT IS FURTHER ORDERED that, pursuant to Section 308(b) 
of the Act, Palmetto  must submit the report described in 
Paragraph 10, above, within no more than thirty (30) days 
following the release of this Order, to Federal Communications 
Commission, Enforcement Bureau, Spectrum Enforcement Division, 
445 12th Street, S.W., Room 7-A728, Washington, D.C. 20554, 
Attention: Jacqueline Ellington, Esq.
     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.14  
Payment may  be  made by  credit  card through  the  Commission's 
Credit and Debt Management Center at (202) 418-1995 or 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.  
Payment by overnight mail may be  sent to Bank One/LB 73482,  525 
West  Monroe,  8th  Floor  Mailroom,  Chicago,  Illinois   60661.  
Payment by wire  transfer may  be made to  ABA Number  071000013, 
receiving bank Bank One, and account number 1165259. The  payment 
must include the FCC Registration Number (FRN) and 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,  D.C. 
20554.15  

     10.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
be sent  by  First  Class  and  Certified  Mail,  Return  Receipt 
Requested, to  Palmetto  Broadcasting  Company,  Inc.,  2203  Old 
Williamston Rd., Anderson, South Carolina 29621.   

                              FEDERAL COMMUNICATIONS COMMISSION
                         

                              David H. Solomon
                              Chief, Enforcement Bureau


_________________________

1 47 C.F.R.  17.4(a).  
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct.  No. 
200332480024 (Enf. Bur., Atlanta Office, May 7,  2003).  
3 47 U.S.C.  503(b).
4 47 C.F.R.  1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).  
6 47 U.S.C.  503(b)(2)(D).
7 47 C.F.R.  11.61.  The  required monthly and weekly tests  are 
required to conform  with the procedures  in the EAS  Operational 
Handbook.  See  also Amendment  of Part  11 of  the  Commission's 
Rules Regarding the Emergency Alert System, EB Docket No.  01-66, 
Report and Order,  FCC 02-64 (Feb.  26, 2002); 67  Fed Reg  18502 
(April 16, 2002)  (effective May 16,  2002, the required  monthly 
EAS test must be retransmitted within 60 minutes of receipt).
8 Broadcast  stations are  required to  retain station  logs  and 
produce them upon  request by  the FCC.  Such  logs must  include 
entries that,  among other  things, contain  EAS tests  that  are 
received and  transmitted.  The  logs must  be retained  for  two 
years.  Palmetto should, therefore, have had the logs  available.  
See, generally,  73.1860. 
9 47 C.F.R.  17.7.
10  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', 
when used with  reference to  the commission or  omission of  any 
act, means the conscious and deliberate commission or omission of 
such act, irrespective of any intent to violate any provision  of 
this Act . . . .''   See Southern California Broadcasting Co.,  6 
FCC Rcd 4387-88 (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. Rep.  97th  Cong. 2d  Sess.  51 
(1982).  See Southern California Broadcasting Company, 6 FCC  Rcd 
4387, 4388 (1991)  and Western Wireless  Corporation, 18 FCC  Rcd 
10319 at fn 56 (2003).
12 47 U.S.C.   308(b).
13 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
14 47 U.S.C.  504(a).
15 See 47 C.F.R.  1.1914.