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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Mattoon Broadcasting Company
) File Numbers: EB-10-CG-0282
Licensee of Stations WLBH and
WLBH-FM ) NAL/Acct. No.: 201132320002
Mattoon, Illinois ) FRN: 0003773595
Facility ID Nrs. 40702 and 40703 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 2, 2011 Released: May 3, 2011
By the District Director, Chicago District Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Mattoon Broadcasting Company ("Mattoon Broadcasting"), licensee
of Stations WLBH(AM) and WLBH-FM, in Mattoon, Illinois, apparently
willfully and repeatedly violated section 73.49 of the Commission's
Rules ("Rules") by failing to enclose Station WLBH's towers within
effective locked fences or other enclosures and section 73.1125(a) by
failing to maintain a management and staff presence at the stations'
main studio. We conclude that Mattoon Broadcasting is apparently
liable for a forfeiture in the amount of fourteen thousand dollars
2. On July 21, 2010, during normal business hours, an agent from the
Enforcement Bureau's Chicago Office ("Chicago Office") attempted to
inspect Stations WLBH and WLBH-FM at their main studio at 5746 E.
Country Road 1000 N, in Mattoon, Illinois. The agent found that the
main studio building was locked and no one answered when the agent
rang the doorbell. The agent called the stations' telephone number; no
one answered and no voice mail system picked up. In the parking lot
outside the main studio building, the agent observed two vehicles,
both of which had flat tires.
3. On the morning of July 22, 2010, the agent attempted to contact the
stations by telephone and again no one answered and there was no voice
mail. In the afternoon, the agent returned to the main studio to
inspect the stations and found that the building was still locked. The
agent rang the doorbell, knocked on the door, and still no response.
The only cars parked in the parking lot were the two cars with flat
tires observed the previous day. Before leaving the main studio, the
agent tried, with no success, to reach someone at the station by
4. After leaving the main studio on July 22, 2010, the agent inspected
the series-fed, four-tower array used in the operation of AM Station
WLBH. The agent observed that the fences surrounding each of the
towers had either sections that were falling down or sections that
were completely missing. In each case, the state of disrepair allowed
unfettered access to the tower and there was no perimeter fence
surrounding the property on which the towers were located.
5. On July 30, 2010, James Livesay, President and General Manager of
Mattoon Broadcasting, contacted the agent by telephone. Mr. Livesay
conceded that the fencing around the four towers had deteriorated and
stated that he would replace the fencing right away. With regard to
staffing at the main studio, Mr. Livesay reported that the individual
who is usually at the main studio has had a significant number of
absences for medical tests. Mr. Livesay did not provide any other
explanation for the absence of personnel at the main studio on July
21, 2010 and July 22, 2010, and did not indicate to the agent that he
had any other station employees.
6. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
7. Section 73.49 of the Rules states that antenna towers having radio
frequency potential at the base (series fed, folded unipole, and
insulated base antennas) must be enclosed within effective locked
fences or other enclosures. The agent's inspection of Station WLBH's
series-fed, four-tower array on July 22, 2010, revealed that none of
the four towers was enclosed within an effectively locked fence or
other enclosure. Mr. Livesay admitted to the agent that the fencing
surrounding the towers had deteriorated. Accordingly, based on the
evidence before us, we find that Mattoon Broadcasting apparently
willfully and repeatedly violated section 73.49 of the Rules by
failing to maintain Station WLBH's antenna towers within effective
locked fences or other enclosures.
8. Section 73.1125(a) of the Rules requires broadcast stations to
maintain a main studio. The Commission has interpreted section 73.1125
(also known as the "Main Studio Rule") to require, among other things,
that a licensee maintains a "meaningful management and staff presence"
at its main studio. Specifically, the Commission has found that a main
studio "must, at a minimum, maintain full time managerial and
full-time staff personnel." Although management personnel need not be
"chained to their desks" during normal business hours, they must
"report to work at the main studio on a daily basis, spend a
substantial amount of time there and...use the studio as a `home
9. On July 21 and July 22, 2010, when an agent attempted to conduct an
inspection at the main studio of Stations WLBH and WLBH-FM, the agent
found that the building was locked and there were no station personnel
present. Moreover, although Mr. Livesay reported that the main studio
usually is staffed by an individual who has had many absences due to
medical tests, a single staff person at the main studio does not
constitute a "meaningful management and staff presence." Accordingly,
based on the evidence before us, we find that Mattoon Broadcasting
apparently willfully and repeatedly violated section 73.1125(a) of the
Rules by failing to maintain a full-time management and staff presence
at the main studio for Stations WLBH and WLBH-FM during regular
10. Pursuant to The Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount is $7,000 for violation
of the AM fencing rule and $7,000 for violation of the main studio
rule. In assessing the monetary forfeiture amount, we must also take
into account the statutory factors set forth in section 503(b)(2)(E)
of the Act, which include the nature, circumstances, extent, and
gravity of the violations, and with respect to the violator, the
degree of culpability, and history of prior offenses, ability to pay,
and other such matters as justice may require. Applying the Forfeiture
Policy Statement, section 1.80, and the statutory factors to the
instant case, we conclude that Mattoon Broadcasting is apparently
liable for a $14,000 forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Mattoon Broadcasting Company
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fourteen thousand dollars ($14,000) for violations of
sections 73.49 and 73.1125(a) of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Mattoon Broadcasting
Company SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
13. 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. Mattoon Broadcasting Company
will also send electronic notification on the date said payment is
made to NER-Response@fcc.gov.
14. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
Northeast Region, Chicago District Office, 1550 North Northwest
Highway, Room 306, Park Ridge, IL 60068 and must include the NAL/Acct.
No. referenced in the caption. An electronic copy shall be sent to
15. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or
(3) some other reliable and objective documentation that accurately
reflects the petitioner's current financial status. Any claim of inability
to pay must specifically identify the basis for the claim by reference to
the financial documentation submitted.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Mattoon Broadcasting Company at P.O.
Box 1848, Mattoon, IL 61938-1848.
FEDERAL COMMUNICATIONS COMMISSION
James M. Roop
Chicago District Office
47 C.F.R. S:S: 73.49, 73.1125(a).
The agent obtained Mr. Livesay's name from an application Mattoon
Broadcasting filed with the FCC. The e-mail address provided in the
application no longer was valid, but the agent obtained a telephone number
for Mr. Livesay through additional research and left a voice mail message
for him at that number on July 30, 2010.
47 U.S.C. S: 503(b).
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 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[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."
47 C.F.R. S: 73.49.
47 C.F.R. S: 73.1125.
Amendment of Section 73.1125 and 73.1130 of the Commission's Rules, the
Main Studio and Program Origination Rules for Radio and Television
Broadcast Stations, Memorandum Opinion and Order, 3 F.C.C.R. 5024, 5026
(1988), erratum issued, 3 FCC Rcd 5717 (1988) (correcting language in
See Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order,
6 FCC Rcd 3615, 3616 (1991) ("Jones Eastern") (noting that, "[t]his is not
to say that the same staff person and manager must be assigned full-time
to the main studio. Rather, there must be management and staff presence on
a full-time basis during normal business hours to be considered
`meaningful.'") clarified, 7 FCC Rcd 6800 (1992) ("Jones Eastern II"). See
also Birach Broadcasting Corporation, Notice of Apparent Liability, 25 FCC
Rcd 2635 (Enf.Bur. 2010).
Jones Eastern II, 7 FCC Rcd at 6802.
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 C.F.R. S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.49,
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11-810
Federal Communications Commission DA 11-810