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                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554

In the Matter of                  )
M.J.   Phillips  Communications,  )   File No. EB-02-BF-344
Inc.,                             )   NAL/Acct. No. 200332280006
Licensee of Station WJJL(AM)      )   FRN 0004-9421-24
Niagara Falls, New York 

                      FORFEITURE ORDER 

Adopted:  June 21, 2004                 Released:  June  23, 

By the Chief, Enforcement Bureau:


      1.  In this  Forfeiture Order (``Order''), we  issue a 
        monetary  forfeiture in the  amount of  ten thousand 
        dollars  ($10,000) to M.J.  Phillips Communications, 
        Inc.  (``M.J. Phillips''),  licensee  of AM  Station 
        WJJL, Niagara  Falls, New York, for  its willful and 
        repeated   violations  of  the   power  restriction,  
        Emergency   Alert  System   (``EAS'')  and   antenna 
        structure  requirements  of Sections  73.1560(a)(1), 
        11.35(a), 11.52(d)  and 17.4(a) of  the Commission's 
        Rules (``Rules'').1  

      2.  On  September 17  and 18,  2002, the  Commission's 
        Buffalo,   New  York  Office   (``Buffalo  Office'') 
        conducted on-site inspections  of Station WJJL.  The 
        inspections  revealed  that  the  station  had  been 
        exceeding its  authorized power limits by  more than 
        105  percent,2  that   its  Emergency  Alert  System 
        (``EAS'')    equipment    had   not    been    fully 
        operational,3  and had  not  been monitored,  tested 
        and  logged  on  a  regular  basis,4  and  that  its 
        antenna  structure had not  been registered.5   As a 
        result  of  the   inspections,  the  Buffalo  Office 
        issued  M.J.  Phillips  a  Notice  of  Violation  on 
        September  23,  2002,   and  a  Notice  of  Apparent 
        Liability  for Forfeiture  (``NAL'') on  January 28, 
        2003.6  The NAL  found that M.J. Phillips apparently 
        willfully   and  repeatedly  violated   the  subject 
        Rules,   and   proposed  base   forfeiture   amounts 
        totaling  $10,000 ($4,000  for  apparent failure  to 
        operate within  authorized power limits,  $3,000 for 
        apparent failure  to register its tower,  $2,000 for 
        apparent  failure to  conduct required  measurements 
        and  testing,  and $1,000  for  apparent failure  to 
        make required log entries).
      3.  M.J. Phillips sought cancellation or a substantial 
        reduction   in  the   proposed  forfeiture   in  its 
        response  to the  NAL.  Specifically,  M.J. Phillips 
        disputed  the NAL's  antenna registration  findings, 
        and claimed no  forfeiture should be imposed in that 
        regard.   M.J. Phillips  did not  dispute the  NAL's 
        findings   regarding   power    excesses   and   EAS 
        deficiencies,  but  claimed that  they  were due  to 
        unusual  circumstances and  further claimed  that it 
        was unable to pay the proposed forfeiture amounts.  

      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''),7 
        Section  1.80 of  the Rules,8  and the  Commission's 
        Forfeiture   Policy  Statement   and  Amendment   of 
        Section  1.80  of   the  Rules  to  Incorporate  the 
        Forfeiture    Guidelines.9    In    examining   M.J. 
        Phillips'  response,  Section   503(b)  of  the  Act 
        requires  us to  take into  account the  violations' 
        nature, circumstances,  extent and gravity,  and the 
        violator's degree  of culpability, history  of prior 
        offenses, ability to  pay, and other such matters as 
        justice may require.10    We will respond to each of 
        M.J. Phillips' claims separately below. 
      5.  With respect to the antenna structure registration 
        violation,   M.J.  Phillips  claimed,   without  any 
        proof,  that it  registered the  structure in  March 
        2000.11   However, a  search  of Commission  records 
        reflects  that  as  of  the adoption  date  of  this 
        Order, M.J.  Phillips' structure still has  not been 
        registered  as  claimed.  Therefore,  we  find  that 
        cancellation  of the  proposed forfeiture  of $3,000 
        is not warranted.   Moreover, given that the Section 
        17.4(a)  violation has  continued,  we will  require 
        M.J. Phillips  to submit an affidavit,  signed by an 
        officer  or   director  of  the  licensee,   to  the 
        Enforcement Bureau within  30 days of the release of 
        this  Order, stating  whether it  has complied  with 
        Section   17.4(a),   and   if  so,   providing   the 
        registration  number.   We   note  that  failure  to 
        submit  the  affidavit, or  failure  to comply  with 
        Section  17.4(a),  may   subject  M.J.  Phillips  to 
        further appropriate enforcement action. 
      6.  With  respect to  the  power  and EAS  ``operating 
        deficiencies,''  M.J. Phillips  did not  dispute the 
        NAL's  findings, but  claimed that,  at the  time of 
        the inspection,  the station was  short-staffed, was 
        operating  with  limited management  oversight,  and 
        thus   was   unable   to   monitor   the   station's 
        operations.12   Additionally, M.J.  Phillips claimed 
        that,   a  week   prior  to   the  inspection,   its 
        transmitter  equipment  apparently   was  struck  by 
        lightning    and   rendered    inoperable.13    M.J. 
        Phillips,   as   licensee,    is   responsible   for 
        monitoring  its  station's operations  and  ensuring 
        compliance   with  Commission   requirements.   M.J. 
        Phillips  conceded that  it was  not monitoring  its 
        station's  operations,  and  thus  that it  was  not 
        aware of  the EAS and power violations  prior to the 
        Buffalo  Office's inspections  and  actions.  We  do 
        not find  that the circumstances, or  M.J. Phillip's 
        lack   of  oversight,   mitigates  or   excuses  its 
        violations, and  thus do not find  that cancellation 
        or reduction  of the proposed forfeiture  amounts is 
      7.  Finally, M.J. Phillips  claimed economic hardship, 
        noting  that the  station  has been  operating at  a 
        loss   and  that   it  has   filed  for   bankruptcy 
        protection in  February 2003.  As the  NAL correctly 
        noted,  we  will consider  canceling  or reducing  a 
        forfeiture  on the  basis of  economic hardship,  if 
        supported   by    financial   documentation   (i.e., 
        ``federal  tax returns  for the  most recent  three-
        year    period,   financial    statements   prepared 
        according    to   generally    accepted   accounting 
        practices,  or  some  other reliable  and  objective 
        documentation    that   accurately    reflects   the 
        petitioner's  current  financial status'').15   M.J. 
        Phillips  did not  provide any  supporting financial 
        documentation, and thus  we have no basis upon which 
        to  assess  its claim.   We  note  that, in  limited 
        circumstances   where   a   licensee   or   regulate 
        relinquished  control  over assets,  the  Commission 
        has  cancelled  or   reduced  forfeitures  based  on 
        bankruptcy  filings.16 However,  because it  appears 
        that  M.J.  Phillips  has not  relinquished  control 
        over  the  station,  its bankruptcy  filing,  alone, 
        does not  preclude the imposition  of forfeitures,17 
        and  does not warrant  reduction or  cancellation of 
        the proposed forfeiture.18   

      8.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to 
        Sections 503(a)  and (b) of the  Act,19 and Sections 
        0.111,  0.311 and  1.80(f)(4) of  the Rules,20  M.J. 
        Phillips  Communications,  Inc.,  IS  LIABLE  FOR  A 
        MONETARY  FORFEITURE in the  amount of  ten thousand 
        dollars  ($10,000)  for  its  willful  and  repeated 
        violations21     of      Sections     73.1560(a)(1), 
        73.11.35(a),  11.52(d)  and  17.4(a) of  the  Rules.  
        For collection, the  Commission will file a proof of 
        claim  at  the appropriate  time  in M.J.  Phillip's 
        bankruptcy action.22
      9.  IT IS  FURTHER ORDERED  that, pursuant  to Section 
        308(b) of  the Act,23 M.J.  Phillips Communications, 
        Inc.,  must   submit  the  affidavit   described  in 
        paragraph 5 above,  within 30 days from the releases 
        of   this   Order,   to:    Federal   Communications 
        Commission,  Enforcement Division, 445  12th Street, 
        S.W.,   Room   7-C802,   Washington,   D.C.   20554, 
        Attention: Ava Holly Berland. 
      10. IT IS  FURTHER ORDERED that  a copy of  this Order 
        shall  be sent  by  First Class  and Certified  Mail 
        Return   Receipt   Requested    to   M.J.   Phillips 
        Communications,  Inc.,  1224   Main  Street,  Niagra 
        Falls, New  York, and its attorney,  James R. Cooke, 
        Harris  Beach, L.L.P.,  1776 K  Street, N.W.,  Suite 
        300, Washington, D.C. 20006.  
                              FEDERAL         COMMUNICATIONS 
                              David H. Solomon
                              Chief, Enforcement Bureau


147 C.F.R.  73.1560(a)(1).11.35(a), 11.52(d) and 17.4(a).

2AM stations  are required to maintain  antenna input power 
levels ``as near as is  practicable'' to, and not less than 
90 percent  or more than  105 percent of,  their authorized 
power  level.   See  47 C.F.R.    73.1560(a)(1).  Station 
WJJL's antenna  input power levels exceeded  its authorized 
power limit of 1000 watts by  more than 250 percent and its 
authorized nighttime power  limit of 55 watts  by more than 
900  percent, and  thus  greatly exceeded  the 105  percent 

3Broadcast   stations  are   required  to   maintain  fully 
operational equipment EAS  equipment, capable of monitoring 
``two EAS sources.''  See  47 C.F.R.  11.35(a), 11.52(d).  
Station WJJL's equipment was only capable of monitoring one 
EAS source.  

4Broadcast stations are required  to monitor, test, and log 
such  tests of,  EAS  equipment at  regular intervals,  and 
repair and/or  replace defective  equipment within  60 days 
(and  to  notify  the  appropriate  Field  Office  if  such 
equipment cannot be repaired  or replaced within the 60-day 
period).      See     47    C.F.R.          11.35(a)-(c), 
73.1820(a)(1)(iii).   Station WJJL's  logs did  not reflect 
the testing of  EAS equipment since July 23,  2002, and did 
not reflect any failure of such equipment.   

5Section 17.4(a) of the  Rules requires that Station WJJL's 
antenna  structure  be   registered  with  the  Commission, 
because it exceeds 200 feet  and is thus subject to Federal 
Aviation  Administration (``FAA'')  notification.  However, 
according  to Commission  records,  Station WJJL's  antenna 
structure was not registered.  

6M.J.   Phillips   Communications,  Inc.,   NAL/Acct.   No. 
200332280006 (Enf.  Bur., Buffalo Office,  released January 
28, 2003).

747 U.S.C.  503(b).

847 C.F.R.  1.80.

912 FCC Rcd 17087 (1997), recon. denied, 15 F


11M.J. Phillips also claimed,  and the Commission's records 
reflect,  that the  coordinates for  the antenna  structure 
are: 43 04? 52? North Latitude and 79 00? 58? -- not 70 00? 
58? -- West Longitude, as stated in the NAL at  2.   

12M.J. Phillips explained that one  of its two owners, both 
of whom were involved full-time in the station's day-to-day 
operations,  had  surgery three  months  prior  to and  was 
medically  incapacitated at  the  time  of the  inspection.   
M.J. Phillips did  not explain why the other  owner was not 
monitoring and  correcting the station's  violations during 
that time period.

13In support,  M.J. Phillips  had attached a  September 29, 
2002,  invoice for  repairs  from Western  Antenna &  Tower 
Service, which indicated that the damage to the transmitter 
site might  have been  caused by  a lightning  strike.   In 
this  connection,  we  note that  M.J.  Phillips  undertook 
corrective measures after  the Buffalo Office's inspection.  
The Commission expects violations  that are observed during 
inspection,  and/or  are  the  subject  of  an  enforcement 
action, to  be corrected,  but does  not believe  that such 
corrective  measures mitigate  past  violations.  See  AT&T 
Wireless  Services, Inc.,  17  FCC Rcd  21866,  21875   26 
(finding that  all Commission licensees and  regulatees are 
``expected   to  promptly   take  corrective   action  when 
violations are brought to  their attention,'' and that such 
corrective   action   does   not   warrant   reduction   or 
cancellation of a forfeiture for past violations); see also 
Seawest Yacht Brokers, 9 FCC Rcd  at 6099, 6099  7 (1994); 
TCI Cablevision of Maryland, Inc., 7 FCC Rcd 6013, 6014  8 
(1992); Sonderling Broadcasting Corp.,   69 FCC 2d 289, 291 
(1978);   South Central  Communications Corp.,  18 FCC  Rcd 
700, 702-03  9 (Enf. Bur. 2003). 

14See Southern California Broadcating  Co., 6 FCC Rcd 4387, 
4387   3 (1991) (stating that  ``inadvertence . . .  is at 
best ignorance  of the  law,'' and  thus is  not mitigating 
circumstance that  warrants reduction or cancellation  of a 
forfeiture); see also Suburban Cellular, L.L.C., 14 FCC Rcd 
13099, 13100  5 (WTB 1999).   

15NAL at  13.

16See Dennis  Elam, Trustee for Bakcor  Broadcasting, Inc., 
Debtor,  11  FCC Rcd  1137,  1137   5  (1996);  Interstate 
Savings, Inc.  d/b/a/ ISI Communications, 12  FCC Rcd 2934, 
2936  5  (CCB 1997)

17See  11  U.S.C.    362(b); see  also  United  States  v. 
Commonwealth  Companies, Inc.,  913 F.2d  518, 522-26  (8th 
Cir. 1990) (excepting from  bankruptcy imposed stays, suits 
by  government   to  obtain  monetary  judgment   for  past 
violations of  the law); Coleman Enterprises,  Inc., 15 FCC 
Rcd 24385, 24389 notes 27-28  (2000), recon. denied, 16 FCC 
Rcd 10016 (2001) (noting that  a bankruptcy filing does not 
preclude  the  Commission  from assessing  forfeitures  for 
violations of the Act and Rules).

18See Pinnacle Towers, Inc., 18 FCC Rcd 16365, 16366-67  7 
(Enf. Bur. 2003); Adelphi  Communications, 18 FCC Rcd 7652, 
7654  8 (Enf. Bur. 2003); Friendship Cable of Texas, Inc., 
17 FCC Rcd 8571, 8572-73  9 (Enf. Bur. 2002). 

1947 U.S.C.  503(a) and (b).

2047 C.F.R.  0.111, 0.311, 1.80(f)(4).

21See  47   U.S.C.    312(f)(1),(2);  see   also  Southern 
California Broadcasting  Co., 6 FCC  Rcd 4387, 4387-88   5 

22See  Commonwealth,   913  F.2d  at  523   note  15Coleman 
Enterprises, Inc., 15  FCC Rcd at 24390; see  also note 19, 

2347 U.S.C.  308(b).