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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-OR-195
)
Metro Birch Enterprises, Inc. ) NAL/Acct.No. 200232620008
Licensee of AM Radio Station )
KPBA ) FRN 0007-2843-67
Pine Bluff, Arkansas )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 22, 2002
By the Enforcement Bureau, New Orleans Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Metro Birch Enterprises, Inc. (``Metro
Birch''), licensee of AM radio station KPBA, Pine Bluff,
Arkansas, apparently liable for a forfeiture in the amount
of seventeen thousand dollars ($17,000) for willful
violation of Sections 73.49 and 73.3526(a)(2) of the
Commission's Rules (``Rules'').1 Specifically, we find
Metro Birch apparently liable for failing to provide an
effective locked fence enclosing the base of the station's
antenna tower, and by failing to maintain all required items
in the station's public inspection file.
II. BACKGROUND
2. On May 21, 2002, an agent from the Commission's New
Orleans Field Office inspected station KPBA located in Pine
Bluff, Arkansas. The agent observed that the station's
antenna tower, which had radio frequency potential at the
base, was not enclosed inside a fence or other protective
enclosure. Additionally, the station's public inspection
file consisted of only a few letters from the public.
III. DISCUSSION
3. Section 73.49 of the Rules requires that antenna
towers having radio frequency potential at the base must be
enclosed within effective locked fences or other enclosures.
On May 21, 2002, KPBA's antenna tower had radio frequency at
the base and was not enclosed by any fencing or other
enclosure.
4. Section 73.3526(a)(2) of the Rules states that
``[e]very permittee or licensee of an AM, FM, TV, or Class A
TV station in the commercial broadcast services shall
maintain a public inspection file containing the material,
relating to that station, described in paragraphs (e)(1)
through (e)(10) and paragraph (e)(13) of this section.'' On
May 21, 2002, KPBA's public inspection file consisted only
of a few letters from the public and was missing other
documents including applications filed with the Commission,
the station's contour map, ownership reports, requests for
time from political candidates, the Public and Broadcasting
Manual, and the issues and programs lists.
5. Based on the evidence before us, we find that on
May 21, 2002, Metro Birch willfully2 violated Sections 73.49
and 73.3526(a)(2) of the Rules by failing to provide an
effective locked fence enclosing the base of the station's
antenna tower, and by failing to maintain all required items
in the station's public inspection file.
6. Pursuant to Section 1.80(b)(4) of the Rules, the
base forfeiture amount for AM tower fencing violations is
$7,000, and the base forfeiture amount for violation of the
public file rules is $10,000.3 Section 503(b)(2)(D) of the
Communications Act of 1934, as amended (``Act''), requires
us 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 other such matters as
justice may require.''4 Considering the entire record and
applying the statutory factors listed above, this case
warrants a $17,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,5 and Sections 0.111, 0.311 and
1.80 of the Rules,6 Metro Birch Enterprises, Inc. is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of seventeen thousand dollars ($17,000) for willful
violation of Sections 73.49 and 73.3526(a)(2) of the Rules,
by failing to provide an effective locked fence enclosing
the base of the station's antenna tower, and by failing to
maintain all required items in the station's public
inspection file.
8. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Metro Birch Enterprises, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment must include the FRN and NAL/Acct. No.
referenced in the letterhead above.
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. and FRN referenced in the letterhead above.
11. 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.
12. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Federal
Communications Commission, Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.7
13. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Metro Birch Enterprises, Inc. at 219
West 5th Street, Pine Bluff, Arkansas, 71601.
FEDERAL COMMUNICATIONS
COMMISSION
James C. Hawkins
District Director, New Orleans
Office
Enforcement Bureau
_________________________
1 47 C.F.R §§ 73.49, 73.3526(a)(2).
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to 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 ....''
See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
3 47 C.F.R. § 1.80(b)(4).
4 47 U.S.C. § 503 (b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80.
7 See 47 C.F.R. § 1.1914.