Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
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
MEMORANDUM OPINION AND ORDER
Adopted: January 19, 2006 Released: January
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''),
we grant in part and deny in part the petition for
reconsideration filed by M.J. Phillips
Communications, Inc. (``M.J. Phillips''), licensee
of AM Station WJJL, Niagara Falls, New York. M.J.
Phillips seeks reconsideration of a Forfeiture
Order1 issued on June 23, 2004, in the amount of
ten thousand dollars ($10,000) for willful and
repeated violations of Sections 73.1560(a)(1),
11.35(a), 11.52(d) and 17.4(a) of the Commission's
Rules (``Rules'').2 The noted violations involve
M.J. Phillips' use of excessive power; its failure
to have fully operational Emergency Alert System
(``EAS'') equipment; its failure to monitor, test
and log the tests of its EAS equipment on a regular
basis; and its failure to register its antenna
structure. For the reasons discussed below, we
reduce the forfeiture amount to seven thousand
dollars ($7,000) based on inability to pay. This
reduction is consistent with the requirement of
Section 503(b) of the Communications Act of 1934,
as amended (``Act''),3 that we take into account
``ability to pay and other such matters as justice
may require.'' 4
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;5 that its EAS equipment had not been
fully operational;6 that it had not monitored,
tested and logged the tests of its EAS equipment on
a regular basis;7 and that its antenna structure
had not been registered.8
3. 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,
2003.9 The NAL proposed a total forfeiture amount
of $10,000 for the noted willful and repeated
violations of the Rules. In its response to the
NAL, M.J. Phillips sought cancellation or
substantial reduction of the proposed forfeiture.
Specifically, M.J. Phillips argued that we should
not impose a forfeiture amount for failure to
register the WJJL antenna structure because the
antenna structure was registered; that the portions
of the forfeiture imposed for the excessive power
and EAS violations should be mitigated because of
unusual circumstances; and that it was unable to
pay the proposed forfeiture amount, noting that it
filed for bankruptcy protection in February 2003.10
In the Forfeiture Order, we rejected these
arguments and imposed a forfeiture of $10,000. In
particular, we rejected M.J. Phillips' inability to
pay argument because it failed to include the
necessary documentation to establish its inability
to pay. In its petition for reconsideration, M.J.
Phillips does not dispute the violations but again
seeks reduction of the forfeiture on the basis of
financial hardship, but this time provides copies
of its 2000, 2001, 2002 and 2003 federal income tax
returns as supporting documentation.
4. Section 503(b) of the Act requires that, in
assessing a forfeiture, the Commission consider,
inter alia, ability to pay. Under the Forfeiture
Guidelines,11 inability to pay can be a mitigating
factor in assessing a forfeiture. In analyzing an
inability to pay claim, the Commission generally
considers gross revenues from the three most recent
tax years to be a reasonable and appropriate
yardstick in determining whether a licensee is able
to pay the assessed forfeiture.12
5. M.J. Phillips seeks reduction of the monetary
forfeiture solely on the basis of economic hardship
and has submitted copies of its federal income tax
returns for 2000, 2001, 2002 and 2003 to support
this claim. After reviewing M.J. Phillips' claim
and the supporting documentation, we believe that
payment of the $10,000 forfeiture would pose a
financial hardship and conclude that a reduction of
the proposed forfeiture amount to $7,000 is
appropriate,13 as it would represent an amount more
consistent with Commission precedent.
6. We have considered the forfeiture amount and we
have examined M.J. Phillips' petition for
reconsideration pursuant to the statutory factors
prescribed by Section 503(b)(2)(D) of the
Communications Act of 1934, as amended (``Act''),14
and in conjunction with the Forfeiture Policy
Statement as well. While we find that M.J.
Phillips willfully and repeatedly violated Sections
73.1560(a)(1), 11.35(a), 11.52(d) and 17.4(a) of
the Rules, as a result of our review of the
petition for reconsideration, we conclude that a
reduction of the monetary forfeiture to $7,000 is
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of Act15 and Section 1.106 of the
Rules,16 the petition for reconsideration filed by
M.J. Phillips Communications, Inc., on July 23,
2004, IS GRANTED ONLY TO THE EXTENT INDICATED ABOVE
AND IS DENIED IN ALL OTHER RESPECTS. For
collection, the Commission will file a proof of
claim at the appropriate time in M.J. Phillip's
8. 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, Niagara
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.
Kris Anne Monteith
Chief, Enforcement Bureau
1 M.J. Phillips Communications, Inc., 19 FCC Rcd 11051
(Enf. Bur. 2004).
247 C.F.R. §§ 73.1560(a)(1), 11.35(a), 11.52(d) and
3 47 U.S.C. § 503(b).
4 47 U.S.C. § 503(b)(2)(D). See also note to Section
1.80(b)(4), Section II, Adjustment Criteria for Section 503
Forfeitures, Downward Adjustment Criteria.
5AM 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
6Broadcast stations are required to maintain fully
operational 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 EAS
7Broadcast 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.
8Section 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.
9M.J. Phillips Communications, Inc., NAL/Acct. No.
200332280006 (Enf. Bur., Buffalo Office, released January
10 The bankruptcy proceeding (03-10705B) is still pending
in the United States Bankruptcy Court for the Western
District of New York.
11See Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, (``Forfeiture Policy Statement''),
12 FCC Rcd 17087, 17106-07 ¶ 43 (1997), recon. denied, 15
FCC Rcd 303 (1999) and PJB Communications of Virginia,
Inc., 7 FCC Rcd 2088, 2089, ¶ 8 (1992).
13See PJB Communications of Virginia, Inc., supra, at 2089,
¶ 8 (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross
revenues); Local Long Distance, Inc., 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, 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).
14 47 U.S.C. § 503(b)(2)(D).
15 47 U.S.C. § 405.
16 47 C.F.R. § 1.106.
17See United States v. Commonwealth Companies, Inc., 913
F.2d 518, 523 (8th Cir. 1990) and Coleman Enterprises,
Inc., 15 FCC Rcd 2485, 24390 (2000), recon. denied, 16 FCC
Rcd 10016 (2001); see also Section 503(b) of the Act.