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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Stone/Collins Communications, Inc. )
File No. EB-09-AT-0018
Licensee of Radio Station )
NAL/Acct. No. 201032480001
WEPG (AM) )
South Pittsburg, TN )
Facility ID #40154 )
Adopted: October 25, 2010 Released: October 27, 2010
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of three thousand five hundred dollars ($3,500) to
Stone/Collins Communications, Inc. ("Stone/Collins"), licensee of
station WEPG(AM), in South Pittsburg, Tennessee, for willful and
repeated violation of Sections 73.49 and 73.3526 of the Commission's
Rules ("Rules"). The noted violations involve Stone/Collins' failure
to: (1) enclose the base of its AM antenna structure within an
effective locked fence; and (2) maintain and make available a public
inspection file at its main studio.
2. On August 19, 2009, agents of the Enforcement Bureau's Atlanta Office
("Atlanta Office") accompanied by the station owner and other station
personnel, inspected the main studio of radio station WEPG(AM). The
agents asked to inspect the station's public inspection file and were
told by the station owner and personnel that there was no public
inspection file and that the station never had one. Furthermore, the
station personnel were not familiar with the public inspection file
3. The agents also inspected the fence surrounding the station's antenna
structure. The agents observed that the station's antenna tower was
energized during operating hours and therefore had radiofrequency
potential at its base. The agents observed that the gate on the chain link
fence surrounding the base of the tower was wide open. There was no lock
to secure the gate, and there was no evidence of any prior lock on the
gate. The agents also observed dense overgrowth of weeds and bushes inside
the fence and in front of the opened gate. Moreover, the agents did not
observe any perimeter property fence.
3. On January 11, 2010, the Atlanta Office issued a Notice of Apparent
Liability for Forfeiture to Stone/Collins in the amount of seventeen
thousand dollars ($17,000), for the apparent willful and repeated
violation of Sections 73.49 and 73.3526 of the Rules. Stone/Collins
submitted a response to the NAL requesting reduction or cancellation
of the proposed forfeiture based on its inability to pay.
Stone/Collins does not dispute the violations identified in the NAL.
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement. In examining Stone/Collins' 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. As discussed below, we conclude that the forfeiture should be
reduced to $3,500 based on Stone/Collins' documented inability to pay
the proposed forfeiture.
5. Section 73.49 of the Rules states that "antenna towers having radio
frequency potential at the base...must be enclosed within effective
locked fences or other enclosures." WEPG(AM)'s tower was energized
during operating hours and therefore had radio frequency potential at
its base. On August 19, 2009, agents from the Atlanta Office observed
that the gate on the chain link fence surrounding the base of the
tower was wide open. There was no lock to secure the gate, and no
evidence of any prior lock on the gate. In addition, the agents did
not observe a fence around the perimeter of the property. Section
73.49 of the Rules also states that, "[r]eady access must be provided
to each antenna tower base for meter reading and maintenance purposes
at all times." The agents observed on August 19, 2009, however, that
there was dense overgrowth of weeds and bushes all around the base of
the tower, and inside the fence, restricting access to the tower.
Thus, based on the evidence before us, we find that Stone/Collins
willfully and repeatedly violated Section 73.49 of the Rules by
failing to maintain an effective locked fence or other enclosure at
the base of the station's antenna tower.
6. Section 73.3526 of the Rules states that "every permittee or licensee
of an AM, FM, TV or Class A TV station in the commercial broadcast
services shall maintain a public inspection file." The public inspection
file shall be maintained at the main studio of the station and shall be
available for public inspection at any time during regular business hours
. On August 19, 2009, agents from the Atlanta Office asked to inspect the
station's public inspection file at its main studio during regular
business hours. Station personnel stated that there was no public
inspection file and that the station had never had one. No one at the
station, including the owner, was able to provide any evidence that a
public inspection file had ever existed. Thus, based on the evidence
before us, we find that Stone/Collins willfully and repeatedly violated
Section 73.3526 of the Rules by failing to maintain a public inspection
file. We also find that Stone/Collins willfully violated Section 73.3536
of the Rules by failing to make available a public inspection file.
6. In its response to the NAL, Stone/Collins does not dispute that it
violated the rules identified above. Stone/Collins instead describes
the steps it took to correct the violations. The Commission has long
held, however, that post-inspection corrective action taken to come
into compliance with the Rules is expected, and such corrective action
does not nullify or mitigate any prior forfeitures or violations.
Stone/Collins also asserts that it did not intend to violate the
rules, and, in the case of the public inspection file rules, was
unaware of the requirements. A violation, however, may be "willful" if
it is conscious and deliberate, irrespective of any intent to violate
the rules. Finally, Stone/Collins requests reduction or cancellation
of the proposed forfeiture, because it asserts the forfeiture amount
would pose a financial hardship. It submits its three most recent
years of tax returns to substantiate its claim. With regard to an
individual's or entity's inability to pay, the Commission has
determined that, in general, gross revenues are the best indicator of
an ability to pay a forfeiture. We have reviewed Stone/Collins'
documentation and conclude that a reduction of the proposed forfeiture
is warranted. Accordingly, pursuant to the statutory factors above,
and in conjunction with the Forfeiture Policy Statement, we reduce the
forfeiture to $3,500, based on Stone/Collins' inability to pay the
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Stone/Collins Communications,
Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of three
thousand five hundred dollars ($3,500) for violations of Sections
73.49 and 73.3526 of the Rules.
8. 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. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Stone/Collins shall also send electronic notification to
SCR-Response@fcc.gov on the date said payment is made.
9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Stone/Collins at
its address of record and to its counsel, Larry D. Perry, 11464 Saga
Lane, Knoxville, TN 37931-2819.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S:S: 73.49, 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032480001
(Enf. Bur., Atlanta Office, rel. January 11, 2010) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 73.49.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387, 4388 P: 5 (1991), recon. denied, 7 FCC Rcd 3454 (1992).
As provided by 47 U.S.C. S: 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 at 4388; Western Wireless Corporation, 18 FCC Rcd
10319, 10328 n.56 (2003).
47 C.F.R. S: 73.3526.
47 C.F.R. S:S: 73.3526(b)(1), 73.3526(c).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994),
International Broadcasting Corporation, Order on Review, 25 FCC Rcd 1538
(2010), Rama Communications, Inc., Memorandum Opinion and Order, 24 FCC
Rcd 4981 (Enf. Bur. 2009), Bethune-Cookman College, Inc.. Forfeiture
Order, 24 FCC Rcd 4513 (South Central Region 2009).
See supra note 9.
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.49,
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-2043
Federal Communications Commission DA 10-2043