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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
) File No. EB-02-DL-679
East Texas Broadcasting, Inc. )
Licensee of Station KPLT(AM) ) NAL/Acct. No. 200332500002
Owner of Antenna Structure No. ) FRN: 0005-0139-41
in Paris, Texas
Mount Pleasant, Texas
Adopted: November 10, 2004 Released: November 16,
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000) to East Texas Broadcasting, Inc., (``East Texas''), the
licensee of KPLT(AM), and owner of Antenna Structure
Registration (``ASR'') No. 1236893 in Paris, Texas, for willful
and repeated violation of Section 17.4(a) of the Commission's
Rules (``Rules'') and willful violation of Section 73.49 of the
Rules.1 The noted violations involve East Texas' failure to
register its antenna structure for radio station KPLT and its
failure to enclose its antenna tower within an effective locked
2. On March 4, 2003, the Commission's Dallas, Texas
District Office (``Dallas Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to East Texas for a
forfeiture in the amount of ten thousand dollars ($10,000).2
East Texas filed a response to the NAL on April 3, 2003.
3. On November 4, 2002, an agent from the Dallas
Office inspected East Texas's antenna structure located in
Paris, Texas. The agent determined that the structure was used
by AM Station KPLT, and had radio frequency (``RF'') potential
at the base of the tower. During the inspection, the agent
found the gate to the tower base fence unlocked. The station
manager arrived after several minutes and secured the gate. In
addition, a sign at the base of the tower structure displayed
ASR number 1053395. The Commission's records indicated that ASR
number 1053395 had been purged from the database with the
notation ``Aged Return Deletion.'' The KPLT station manager
informed the Dallas Office agent that KPLT had purchased the
station one year previously.
4. On November 14, 2002, the Dallas Office received
information from East Texas indicating that the previous owner
of the tower had tried and failed to properly register the
tower. The registration failure was due to the previous owner's
failure to provide correct coordinates for the tower. On
December 2, 2002, East Texas successfully registered the tower
with the Commission's automatic tower registration system using
the same incorrect data with which the previous owner used in
its failed registration attempts.3 East Texas has owned the
subject tower since August 2001.
5. On March 4, 2003, the Dallas Office issued a NAL
to East Texas for ten thousand dollars ($10,000) for apparent
willful and repeated violation of Section 17.4(a) of the Rules
and apparent willful violation of Section 73.49 of the Rules.
East Texas responded to the NAL pointing out its history of
compliance with the Rules, and its prompt remedial efforts to
correct the violations. It states that it believed the tower
was registered because when it acquired the tower, ``it had been
represented to it that the prior licensee was in compliance with
all'' of the Rules. East Texas relied upon that representation,
which was compounded by the existence of a sign at the base of
the structure displaying ASR number 1053395.
6. East Texas also states that it has participated in
the Alternative Broadcast Inspection Program (``ABIP'') for
several of its other stations and has devoted substantial time
and resources to prepare Station KPLT for that program. In
support of its argument that it has been diligent in serving its
customers and complying with the Rules, East Texas supplies a
lengthy list of improvements and modifications it has made to
KPLT since it acquired the station, including replacing the
transmitter, repairing the transmitter building and replacing
its roof, installing upgraded electrical system and air
conditioning, and replacing all wiring on the tower lights.
7. East Texas suggests that the forfeiture is not
warranted, given its overall participation in ABIP, its history
of compliance, and the substantial station improvements it has
made to Station KPLT. At a minimum, it argues, the forfeiture
should be reduced by the sum of $3,900, citing Truth
Broadcasting Corporation4 and NetCom Technologies.5 In
addition, East Texas argues that we should take into account
that KPLT is in the small market of Paris, Texas, and the
Commission has recognized that forfeitures impose a ``far
greater hardship'' on a small market station than on others,
citing Dominga Barreto Santiago6 and Canby Telephone
8. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended, (``Act''),8 Section 1.80 of the Rules,9
and 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) (``Policy Statement''). In examining East Texas'
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.10
9. Section 73.49 of the Rules requires broadcast
licensees to maintain an effective locked fence or other
enclosures around the base of an antenna tower having
radiofrequency potential at the base. The Dallas Office agent's
observation was that AM Station KPLT has radio frequency
potential at the base of its antenna tower, thereby requiring an
effective locked fence or other enclosure. At the time of the
inspection on November 4, 2002, the KPLT antenna structure was
not enclosed within an effective locked fence or other enclosure
as required by Section 73.49. East Texas does not contest that
its antenna tower was without an effective locked enclosure
around the base. Accordingly, we conclude that East Texas
willfully11 violated Section 73.49 of the Rules.
10. Section 17.4(a) of the Rules requires that the
owner of any proposed or existing antenna structure that
requires notice of proposed construction to the FAA must
register the structure with the Commission. East Texas owns
the tower structure for KPLT, and the structure is approximately
92 meters in height, requiring that it be registered with the
FAA. East Texas believed that the tower was registered when it
purchased the tower, however, it is well established that
mistake or inadvertence resulting in a rule violation is
considered willful.12 Moreover, because the violation continued
for at least a year, it is repeated.13 Accordingly, we conclude
that East Texas willfully and repeatedly violated Section
17.4(a) of the Rules.
11. As East Texas acknowledges, remedial action taken
to correct the violation is not a mitigating factor, and indeed,
East Texas did not take action prior to the inspection to
correct the subject violations. East Texas contends,
nevertheless, that it deserves consideration for the significant
improvements it has made to the station to bring it into
compliance and to maintain compliance with the Rules. Station
improvements are commendable, but compliance with our rules is
expected and does not constitute grounds for a reduction in the
proposed forfeiture.14 We conclude, therefore, that East Texas
is not entitled to a reduction in the forfeiture amount for its
12. East Texas argues that its participation in ABIP
in other stations it owns, and its plan to place Station KPLT in
the ABIP program, deserves consideration. We conclude that
these efforts are not grounds for a reduction in forfeiture
because neither Section 1.80 of the Rules nor the Policy
Statement authorizes remediation of a forfeiture for these
13. East Texas also argues that it should have a
reduction of the forfeiture because it operates in a small
market. The cases cited in support of this position by East
Texas, however, illustrate the general rule that reduction of a
forfeiture for small market status is always accompanied by
showing of financial hardship and/or inability to pay with the
required documentation.15 East Texas provided no documentation
showing its inability to pay, and accordingly, we find no merit
in its request for reduction based on small market status.
14. Finally, East Texas argues it has never been cited
for a previous violation of the Commission's Rules, and citing
Truth Broadcasting Corporation, supra and NetCom Technologies,
supra, seeks a reduction in the forfeiture amount on that basis.
Our records show that East Texas is correct. Accordingly, we
find that a reduction of $2000 of the proposed forfeiture is
warranted for East Texas' history of compliance.
15. A search of the Commission's ASR database reveals
that as of the adoption date of this Order, East Texas still had
not corrected the registration information for its antenna
structure with the Commission. Accordingly, we will require,
pursuant to Section 308(b) of the Act,16 that East Texas submit
a report to the Enforcement Bureau within 30 days of the release
date of this Order demonstrating that it is in compliance with
our antenna registration Rules as required by Section 17.4(a).
East Texas's report must be submitted in the form of an
affidavit or declaration, under penalty of perjury, and signed
by an officer or director of the licensee. East Texas should
note that its continued noncompliance could result in additional
16. We have examined East Texas' response to the NAL
pursuant to the statutory factors above, and in conjunction with
the Policy Statement as well. As a result of our review, we
conclude that East Texas willfully violated Section 73.49 of the
Rules, and that it willfully and repeatedly violated Section
17.4 of the Rules, but we find that the proposed forfeiture
should be reduced to $8,000 for these violations because of its
history of compliance.
IV. ORDERING CLAUSES
17. 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,17 East Texas Broadcasting, Inc.,
licensee of Station KPLT(AM), in Paris, Texas, IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eight thousand dollars
($8,000) for its violation of Sections 17.4 and 73.49 of the
18. IT IS FURTHER ORDERED that, pursuant to Section
308(b) of the Act, East Texas Broadcasting, Inc. must submit the
report described in paragraph fifteen (15) above no later than
thirty (30) days from the release date of this Order to:
Federal Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554, Attention: Susan Magnotti, Esquire.
19. 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.18 Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, 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, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
20. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to East Texas Broadcasting, Inc., PO Box 990, Mount
Pleasant, Texas 75456, and to its counsel Howard J. Barr, Esq.,
Womble Carlyle Sandridge & Rice, Seventh Floor, 1402 Eye Street,
N.W., Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. §§ 17.4(a), 73.49.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332500002 (Enf. Bur., Dallas Office, released March 4, 2003).
3 The previous owner's application was reviewed by FCC staff
prior to ubiquitous public use of the automated tower
registration system. According to correspondence between the
tower's previous owners and the Commission, the data provided is
in error by more that one second. The tower requires a new
Federal Aviation Administration (``FAA'') study and corrected
data for the tower registration in the Commission's database.
4 17 FCC Rcd. 24376 (Enf. Bur. 2002).
5 16 FCC Rcd 9524 (Enf. Bur. 2001).
6 14 FCC Rcd 6065 (CIB 1999).
7 5 FCC Rcd 731 (Mobile Services Div. 1990).
8 47 U.S.C. § 503(b).
9 47 C.F.R. § 1.80.
10 47 U.S.C. § 503(b)(2)(D).
11 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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
12 A violation resulting from an inadvertent mistake or a
failure to become familiar with the FCC's requirements is
considered a willful violation. See PBJ Communications of
Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard Communications
Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting Co., Inc., 96 FCC
2d 1235, 1242 (1984).
13 As provided by 47 U.S.C. § 312(f)(2), ``[t]he term `repeated',
when used with reference to the commission or omission of any
act, means the commission or omission of such act more than once
or, if such commission or omission is continuous, 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). Southern California Broadcasting Co., supra.
14 AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002),
forfeiture ordered, 17 FCC Rcd 21866, 21875-76 at ¶¶ 26-28
(2002), Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 ¶ 7 (1994).
15 Dominga Barreto Santiago and Canby Telephone Association,
16 47 U.S.C. § 308(b).
17 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.