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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Meade County Communications, Inc. ) File No. EB-02-CG-
083
WMMG-FM )
Brandenberg, Kentucky ) NAL/Acct. No.
200332320001
)
) FRN 0003-7623-33
FORFEITURE ORDER
Adopted: January 20, 2004 Released: January 22,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order
(``Order''), we issue a monetary
forfeiture in the amount of three
thousand dollars ($3,000) to
Meade County Communications, Inc.
(``Meade''), for willful
violation of Section 17.4(a)(2)
of the Commission's Rules
(``Rules'').1 The noted
violation involves Meade's
failure to register its antenna
structure.
2. On October 18, 2002, the
Commission's Chicago, Illinois,
Field Office (``Chicago Office'')
issued a Notice of Apparent
Liability for Forfeiture
(``NAL'') to Meade for a
forfeiture in the amount of three
thousand dollars ($3,000).2
Meade filed its response to the
NAL on November 8, 2002.
II. BACKGROUND
3. Meade is the licensee of radio
station WMMG-FM in Brandenberg,
Kentucky, and is the owner of
that station's antenna structure.
Following his inspection of WMMG-
FM on February 5, 2002, an agent
from the Chicago Office searched
the Commission's antenna
registration records and
determined that the WMMG-FM tower
was not registered, in violation
of Section 17.4(a)(2) of the
Rules.
4. The Chicago Office issued a
Notice of Violation to Meade on
February 26, 2002, for the
violation. In its response,
dated March 4, 2002, Meade stated
that it had registered WMMG-FM's
tower following the inspection.
On October 18, 2002, the Chicago
Office issued a NAL to Meade for
a forfeiture in the amount of
$3,000 for willful violation of
Section 17.4(a)(2). In its
response, Meade seeks
cancellation or reduction of the
proposed monetary forfeiture.
Meade argues that its failure to
register the antenna structure
was not a willful. In addition,
Meade asserts that it is unable
to pay the proposed forfeiture
amount at this time but is
willing to enter into a payment
plan.
III. DISCUSSION
5. The proposed forfeiture amount
in this case was assessed in
accordance with Section 503(b) of
the Communications Act of 1934,
as amended (``Act''),3 Section
1.80 of the Rules,4 and The
Commission's Forfeiture Policy
Statement and Amendment of
Section 1.80 of the Rules to
Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy
Statement''). In examining
Meade's 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.5
6. Section 17.4(a)(2) of the
Rules required the owners of
existing antenna structures that
were assigned painting or
lighting requirements before July
1, 1996, to register those
antenna structures no later than
July 1, 1998. WMMG-FM's tower
was subject to this requirement.6
On the basis of the FCC agent's
investigation and Meade's
response, we find that the
antenna structure was not
registered until after the
inspection on February 5, 2002,
and that Meade violated Section
17.4(a)(2) by failing to register
it. Meade asserts, through its
general manager, that its failure
to register the antenna structure
``was not a willful act as much
as it was an act that fell
through the cracks . . . of the
engineer that was filing the
registration and myself for not
checking with him to make sure it
was done.'' As the Commission
recently reiterated, ``the
Commission has long held that
licensees and other Commission
regulatees are responsible for
the acts and omissions of their
employees and independent
contractors and has consistently
refused to excuse licensees from
forfeiture penalties where
actions of employees or
independent contractors have
resulted in violations.''7 Meade
is, therefore, chargeable with
knowledge of its engineer's
failure to register WMMG-FM's
antenna structure.8 We find,
therefore, that Meade's violation
of Section 17.4(a)(2) was
willful.9
7. Meade contends that it is
unable to pay the proposed
forfeiture amount at this time.
In support of its claim of
financial hardship, Meade has
submitted its federal income tax
returns for tax years 1999, 2000
and 2001. The Commission has
determined that, in general, a
licensee's gross revenues are the
best indicator of its ability to
pay a forfeiture.10 After
reviewing the financial data
submitted, we find no evidence in
Meade's response that would
support cancellation of the
forfeiture or a reduction based
upon financial hardship. 11
However, as explicitly stated in
the NAL and set forth below in
paragraph 10, Meade may submit a
request for full payment of the
forfeiture under an installment
plan consistent with the
instructions below.
8. We have examined Meade's
response to the NAL pursuant to
the statutory factors above, and
in conjunction with the Policy
Statement as well. As a result
of our review, we conclude that
Meade willfully violated Section
17.4(a)(2) of the Rules and find
that neither cancellation nor
reduction of the proposed
monetary forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED
that, pursuant to Section 503(b)
of the Act, and Sections 0.111,
0.311 and 1.80(f)(4) of the
Rules,12 Meade IS LIABLE FOR A
MONETARY FORFEITURE in the amount
of three thousand dollars
($3,000) for failure to register
its antenna structure, in willful
violation of Section 17.4(a)(2)
of the Rules.
10. 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.13
Payment may be made by mailing a
check or similar instrument,
payable to the order of the
Federal Communications
Commission, to the Federal
Communications Commission, P.O.
Box 73482, Chicago, Illinois
60673-7482. The payment should
reference NAL/Acct. No.
200332320001 and FRN 0003-7623-
33. In response to Meade's
request for an installment plan,
requests for full payment under
an installment plan should be
sent to: Chief, Revenue and
Receivables Group, 445 12th
Street, S.W., Washington, D.C.
20554.14
11. IT IS FURTHER ORDERED that
copies of this Order shall be
sent by Certified Mail Return
Receipt Requested and by First
Class Mail to Meade County
Communications, Inc., 1715 Bypass
Road, P.O. Box 505, Brandenberg,
Kentucky 40108-0505.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.4(a)(2).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332920001 (Enf. Bur., Chicago Office, released July 31, 2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 The Commission's TOWPUB tower data base indicates that
WMMG's tower was assigned painting or lighting requirements
before July 1, 1996.
7 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64
(2002) (internal quotation marks omitted) and cases cited
therein.
8 See Pinnacle Towers, Inc., 18 FCC Rcd 16365 (Enf. Bur.
2003).
9 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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).
10 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1992).
11 See PJB Communications, 7 FCC Rcd at 2089 (forfeiture not
deemed excessive where it represented approximately 2.02 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); Afton Communications
Corp., 7 FCC Rcd 6741 (Com. Car. Bur. 1992) (forfeiture not
deemed excessive where it represented approximately 3.9 percent
of the violator's gross revenues).
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.