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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Mattoon Broadcasting Company Licensee of Stations WLBH
and WLBH-FM Mattoon, Illinois ) ) ) ) ) ) ) ) File Numbers: EB-10-CG-0282;
EB-FIELDNER-12-00004396 NAL/Acct. No.: 201132320002 FRN: 0003773595
Facility ID Nos. 40702 and 40703
Adopted: March 20, 2014 Released: March 20, 2014
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of five hundred dollars ($500) to Mattoon Broadcasting
Company (Mattoon Broadcasting), licensee of Stations WLBH(AM) and
WLBH-FM, in Mattoon, Illinois (Stations), for willfully and
repeatedly violating Sections 73.49 and 73.1125(a) of the
Commission's rules (Rules).^ Mattoon Broadcasting failed to enclose
the AM Station's antenna structures within effective locked fences or
other enclosures, and failed to maintain a management and staff
presence at the Stations' main studio.
2. On May 3, 2011, the Enforcement Bureau's Chicago Office issued a
Notice of Apparent Liability for Forfeiture (NAL)^ in the amount of
fourteen thousand dollars ($14,000) to Mattoon Broadcasting for (1)
violating Section 73.49 of the Rules by failing to maintain effective
locked fences or other enclosures around the AM Station's four antenna
structures and (2) violating Section 73.1125(a) of the Rules for
failure to maintain a management and staff presence at the Stations'
co-located main studio. Specifically, an agent from the Chicago Office
found that, on July 21 and 22, 2010, the Stations' main studio
building was locked and no one answered when the agent rang the
doorbell.^ On July 22, 2010, the agent also conducted an inspection of
AM Station WLBH's antenna structures, which had radio frequency
potential at their bases.^ The agent observed that the fences
surrounding each of the antenna structures 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
antenna structures were located.^ Mattoon Broadcasting responded to
the NAL on June 2, 2011.
3. In its response to the NAL, Mattoon Broadcasting does not dispute the
findings in the NAL, but requests a reduction or cancellation of the
proposed forfeiture claiming that: (1) new fences had been installed
around the antenna structures within two weeks of the agent's
inspection; (2) the General Manager of Mattoon Broadcasting "spend[s]
a substantial amount of time each day at [the] main studio building. .
.[but] was out of town for a few days from July 20-23, 2010," "medical
problems caused the absence of another staff member," and two other
staff members come and go throughout the day; and (3) Mattoon
Broadcasting is facing financial difficulties and is unable to pay the
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 Forfeiture Policy
Statement.^ In examining Mattoon Broadcasting's response, Section
503(b)(2)(E) 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 have considered Mattoon
Broadcasting's response in light of these statutory factors, and find
that a reduction of the forfeiture is warranted based on Mattoon
Broadcasting's inability to pay.
5. We affirm the findings in the NAL that Mattoon Broadcasting willfully
and repeatedly violated Section 73.49 of the Rules. Section 73.49 of
the Rules requires that antenna structures having radio frequency
potential at the base must be enclosed within effective locked fences
or other enclosures.^ On July 22, 2010, an agent from the Chicago
Office observed that the fences surrounding each of the antenna
structures had either sections that were falling down or sections that
were completely missing. Based on the degree of deterioration, agents
concluded that the fences had been in disrepair for an extended period
of time, a fact which Mattoon Broadcasting does not dispute. With
regard to Mattoon Broadcasting's repairs to the fencing after the
agent's inspection, the Commission has long held that corrective
action taken to come into compliance with the Rules is expected, and
such corrective action does not nullify or mitigate prior violations
or associated forfeiture liability.^ Thus, based on the totality of
the circumstances, we find that Mattoon Broadcasting willfully and
repeatedly violated Section 73.49 of the Rules.
6. We also affirm the findings in the NAL that Mattoon Broadcasting
willfully and repeatedly violated Section 73.1125(a) of the Rules.
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 maintain 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
base.'"^ On July 21 and 22, 2010, an agent found, and Mattoon
Broadcasting concedes, that no staff or management were present at the
Stations' main studio during normal business hours. Mattoon
Broadcasting's unsubstantiated claims that the General Manager as well
as several other employees usually spend a substantial amount of time
at the main studio does not change the fact that, on two days, the
agent found no staff or management present at the main studio.
Accordingly, we find that Mattoon Broadcasting willfully and
repeatedly violated Section 73.1125(a) of the Rules by failing to
maintain a meaningful presence at the Stations' main studio.
7. We grant, however, Mattoon Broadcasting's request for a reduction
based on its inability to pay. With regard to an individual or
entity's inability to pay claim, the Commission has determined that,
in general, gross revenues are the best indicator of an ability to pay
a forfeiture.^ Based on the financial documents provided by Mattoon
Broadcasting, we find sufficient basis to reduce the forfeiture to
$500. However, we caution Mattoon Broadcasting that a party's
inability to pay is only one factor in our forfeiture calculation
analysis, and is not dispositive.^ We have previously rejected
inability to pay claims in cases of repeated or otherwise egregious
violations.^ Therefore, future violations of this kind may result in
significantly higher forfeitures that may not be reduced due to
Mattoon Broadcasting's financial circumstances.
IV. ordering clauses
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Mattoon
Broadcasting Company IS LIABLE FOR A MONETARY FORFEITURE in the amount
of five hundred dollars ($500) for violation of Sections 73.49 and
73.1125(a) of the Commission's rules.^
9. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Mattoon Broadcasting Company shall send
electronic notification of payment to NER-Response@fcc.gov on the date
said payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account number and FRN referenced above. Regardless of the form of
payment, a completed FCC Form 159 (Remittance Advice) must be
submitted.^ When completing the FCC Form 159, enter the Account Number
in block number 23A (call sign/other ID) and enter the letters "FORF"
in block number 24A (payment type code). Below are additional
instructions you should follow based on the form of payment you
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
10. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial Operations,
Federal Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.^ If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
11. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Mattoon Broadcasting Company at P.O. Box 322, Mattoon,
Illinois 61938-0322 and 5746 E. Country Road 1000 N, North Route 45,
Mattoon, Illinois, 61938.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
^ 47 C.F.R. SS 73.49, 73.1125(a).
^Mattoon Broadcasting Company, Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 6577 (Enf. Bur. 2011). A comprehensive recitation
of the facts and history of this case can be found in the NAL and is
incorporated herein by reference.
^ NAL, 26 FCC Rcd at 6577.
^ NAL, 26 FCC Rcd at 6577-6578.
^ NAL, 26 FCC Rcd at 6578.
^ Letter from James R. Livesay II, President and General Manager of
Mattoon Broadcasting Company, to the Chicago Office, Northeast Region,
Enforcement Bureau at 1-2 (dated June 2, 2011) (on file in EB-10-CG-0282)
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 C.F.R. S 73.49.
^ See Consolidated Radio, Inc., 26 FCC Rcd 15173 (Enf. Bur. 2011) citing
International Broadcasting Corporation, Order on Review, 25 FCC Rcd
^ 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.
^ See Local Long Distance, Inc., Forfeiture Order, 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, Forfeiture Order, 15 FCC Rcd 8640 (2002) (forfeiture not
deemed excessive where it represented approximately 7.6 percent of the
violator's gross revenues).
^ See 47 U.S.C. S 503(b)(2)(E) (requiring Commission to 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).
^ Dexter Blake, Memorandum Opinion and Order, 27 FCC Rcd 15087 (Enf. Bur.
2012), aff'd in part, Forfeiture Order, 25 FCC Rcd 10038 (Enf. Bur.,
Northeast Region 2010) (reducing forfeiture based on inability to pay, but
warning that future violations of the same kind may not be reduced due to
financial circumstances); Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd
7840 (Enf. Bur., Western Region 2011) (holding that violator's repeated
acts of malicious and intentional interference outweigh evidence
concerning his ability to pay) (petition for reconsideration pending);
Hodson Broadcasting Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur.
2009) (holding that permittee's continued operation at variance with its
construction permit constituted an intentional and continuous violation,
which outweighed permittee's evidence concerning its ability to pay the
proposed forfeitures). See Michael W. Perry, Forfeiture Order, 27 FCC Rcd
2281, 2284, para. 8 (2012) (reducing forfeiture based on inability to pay,
but warning that future violations of the same kind may not be reduced due
to financial circumstances).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
(Continued from previous page)
Federal Communications Commission DA 14-377
Federal Communications Commission DA 14-377