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                         Before the
              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 
23, 2006

By the Chief, Enforcement Bureau:

I.   INTRODUCTION

      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
II.    BACKGROUND

      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
III.        DISCUSSION

      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 
        appropriate.
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 
        bankruptcy action.17



      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.  
                              FEDERAL         COMMUNICATIONS 
COMMISSION
                         
                              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 
17.4(a).

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 
limit.

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 
source.  

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 
28, 2003).

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).  

12 Id.  

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.