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

In the Matter of                 )
Pittman Broadcasting Services,   )    File No. EB-02-OR-360
LLC                              )    NAL/Acct No. 200332620006
Licensee of Broadcast Stations   )    FRN 0006-1569-21
KAOK(AM), Lake Charles,          )
Louisiana, and KAOK-FM,1         )
DeRidder, Louisiana
Covington, Louisiana

                        FORFEITURE ORDER

Adopted:  August 5, 2004                                      
Released:  August 9, 2004

By the Chief, Enforcement Bureau:


     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
forfeiture in the  amount of three  thousand dollars ($3,000)  to 
Pittman Broadcasting  Services,  LLC (``Pittman''),  licensee  of 
radio broadcast stations KAOK(AM),  Lake Charles, Louisiana,  and 
KAOK-FM, DeRidder, Louisiana,  for willful  violation of  Section 
73.49 of  the Commission's  Rules  (``Rules''),2 and  cancel  the 
proposed monetary  forfeiture in  the  amount of  eight  thousand 
dollars ($8,000) because we now conclude Pittman did not  violate 
Section  11.35(a)  of  the  Rules.3   The  noted  rules   involve 
Pittman's failure to maintain an effective locked fence enclosing 
its antenna tower  for KAOK(AM) and  rules regarding  maintaining 
operational Emergency Alert  System (``EAS'')  equipment at  both 

     2.   In a February 14, 2003 Notice of Apparent Liability for 
Forfeiture (``NAL''), the District  Director of the  Commission's 
New Orleans,  Louisiana  Field Office  (``New  Orleans  Office'') 
issued  a  monetary  forfeiture   of  fifteen  thousand   dollars 
($15,000) to  Pittman.4   On  March 18,  2003,  Pittman  filed  a 
response to the NAL (``Response''). 


     3.   On December  3, 2002,  an agent  from the  New  Orleans 
Office (``agent'') inspected  the co-located  studio of  co-owned 
broadcast  stations  KAOK(AM)  and   KAOK-FM  in  Lake   Charles, 
Louisiana.  The agent found that the stations' EAS equipment  was 
not functioning in accordance with Section 11.35(a) of the Rules.  
Specifically, the encoder/decoder unit  was not connected to  any 
receivers in order to monitor incoming alert signals.   Moreover, 
station personnel  were unable  to produce  any notation  in  the 
station logs  to confirm  that EAS  tests were  sent or  received 
between approximately October  27 and December  4, 2002, or  that 
the equipment  had been  removed from  service for  repair.   The 
stations' general  manager also  conceded that  the stations  had 
neither received nor conducted EAS tests for the approximate time 
frame of October 27, 2002 through December 4, 2002.  In addition, 
an inspection of  the KAOK(AM)  antenna tower -  which has  radio 
frequency potential  at the  base -  revealed that  there was  no 
effectively locked  fence or  other  enclosure, in  violation  of 
Section 73.49  of  the Rules.   The  inspection resulted  in  the 
issuance of the  subject NAL  by the New  Orleans Office  finding 
Pittman apparently  liable  for  willful  violation  of  Sections 
11.35(a) ($8,000) and 73.49 ($7,000) of the Rules.  

     4.   On March  17, 2003,  Pittman filed  a Response  denying 
that it violated Section 11.35(a) of the Rules and disputing  the 
fencing  violation.   Pittman  also  seeks  a  reduction  of  the 
proposed forfeiture amount based on a past history of  compliance 
and financial hardship.


     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''),5  Section 1.80 of the  Rules,6 
and the Commission's Forfeiture Policy Statement.7  In  examining 
Pittman's response,  Section  503(b)  of  the  Act  requires  the 
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.8

     6.   Section  11.35(a)  of  the  Rules  requires   broadcast 
stations to  install and  maintain operational  EAS equipment  so 
that monitoring and transmitting  functions are available  during 
the times when the stations  and systems are operating.   Section 
11.35(b) of the  Rules9 provides a  caveat for permissible  down-
time  of  the  equipment  of  up  to  60  days  for  repair   and 
replacement, so long as an entry is made in the broadcast station 
log.  Pittman does not  dispute the fact  that the stations'  EAS 
equipment was out  of service, or  that no notation  was made  to 
that effect in its logs.  However, after reviewing the record  in 
this  case,  including  the  declaration  submitted  by   Michael 
Schutta, General Manager,10 we conclude that the time frame  that 
KAOK(AM)  and  KAOK-FM  operated  without  the  EAS  equipment  - 
approximately October 27,  2002, to  December 4, 2002  - did  not 
exceed the number  of days  that are permitted  for repair  under 
Section 11.35(b) of  our Rules.  We  therefore conclude that  the 
monetary forfeiture for violation  of Section 11.35(a) should  be 

     7.   Section 73.49 of the Rules requires that antenna towers 
having radio frequency  potential at  the base  must be  enclosed 
within an  effectively locked  fence or  other enclosure.   In  a 
detailed narrative, Pittman argues that the subject antenna tower 
is  effectively  enclosed   by  natural   and  manmade   barriers 
(including a partial fence),  precluding the need for  additional 
fencing.11  Pittman alleges  that a  perpetually marshy  terrain, 
makes ``foot  access  to  the  tower .  .  .  impracticable,  and 
eliminates any likelihood  of casual  trespass.''12  Neither  the 
Rules nor  case  law  permit ``natural  barriers''  to  meet  the 
requirements of Section 73.49 of the Rules, and Pittman  provides 
no support  for this  proposition.13  Moreover,  at the  time  of 
inspection and  despite a  rainstorm, the  agent obtained  direct 
access to  the antenna  tower from  the vehicle  entrance off  of 
Highway 90.  Finally, the station  manager admitted that a  fence 
was needed, but that he had not gotten around to installing  one.  
Thus, we find that  Pittman's violation of  Section 73.49 of  the 
Rules was willful.14

     8.   In an attempt to mitigate the violation, Pittman  avers 
that a  fence  has  now  been constructed.15   We  find  that  no 
mitigation  is  warranted  on  the  basis  of  Pittman's  alleged 
correction of the violation.  As the Commission stated in Seawest 
Yacht Brokers, ``corrective action taken to come into  compliance 
with Commission rules or policy is expected, and does not nullify 
or mitigate any prior forfeitures or violations.''16  

     9.   Pittman seeks a reduction  of the forfeiture amount  on 
the basis  of  a  history  of  compliance.17   After  considering 
Pittman's record of compliance, we  conclude that a reduction  of 
the remaining forfeiture amount ($7,000 as reduced) to $5,600  is 

     10.  Pittman  also  seeks   a  further   reduction  of   the 
forfeiture amount  due to  ``extreme financial  hardship,  making 
payment of  the any  [sic]  significant forfeiture  difficult  or 
impossible.''18   In  analyzing  economic-hardship  claims,   the 
Commission  generally  looks  to  companies'  gross  revenues  as 
reasonable and appropriate yardsticks to determine their  ability 
to pay  assessed forfeitures.19   Indeed, the  Commission  stated 
that if  companies' gross  revenues are  sufficiently large,  the 
fact that net  losses are reported,  alone, does not  necessarily 
signify inability to pay.20  

     11.  As evidence of an inability to pay, Pittman recounts  a 
February 2001 fire which allegedly destroyed the studio facility, 
and claims  that  the  station did  not  receive  full  financial 
restitution from  its insurance  carrier.  In  addition,  Pittman 
avers that as a result of the fire, KAOK was off of the air  from 
February to November of 2001, resulting in lost listenership  and 
clientele.  To further substantiate  this claim, Pittman  submits 
tax returns from  1999, 2000 and  2001.  Based on  our review  of 
Pittman's supporting  financial documentation,  we find  that  an 
inability to  pay reduction  of the  remaining forfeiture  amount 
from $5,600 to $3,000 is warranted.

     12.  We have examined Pittman's response to the NAL pursuant 
to the  statutory  factors above,  and  in conjunction  with  the 
Forfeiture Policy Statement as well.  As a result of our  review, 
we conclude that Pittman willfully violated Section 73.49 of  the 
Rules, and that  based on   Pittman's history  of compliance  and 
current financial situation a reduction in the forfeiture  amount 
from $7,000 to $3,000 is appropriate.


     13.  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, 21 Pittman Broadcasting Services, LLC IS LIABLE FOR  A 
MONETARY FORFEITURE  in  the  amount of  three  thousand  dollars 
($3,000) for willfully violating Section 73.49 of the Rules. 

     14.  IT IS FURTHER ORDERED THAT, pursuant to Section  504(b) 
of the Act,22 and Section 1.80  (f)(4) of the Rules, the  portion 
of  the  NAL  concerning   Pittman  Broadcasting  Services,   LLC 
violation of Section 11.35(a) of the Rules, IS CANCELLED. 

     15.  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.23  
Payment shall 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  the 
NAL/Acct. No.  referenced  in  the caption.   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. 20554.24

     16.  IT IS FURTHER ORDERED that, a copy of this Order  shall 
be sent by Certified Mail  Return Receipt Requested and by  First 
Class  Mail  to  Pittman  Broadcast  Services,  LLC,  307   South 
Jefferson Street, Covington, Louisiana 70433, and to its counsel, 
Dan J. Alpert, 2120 N. 21st Road, Suite 400, Arlington,  Virginia 


                         David H. Solomon
Chief, Enforcement Bureau

1 The call sign was changed from KAOK-FM to KQLK, effective  Feb. 
3, 2003.
2 47 C.F.R.  73.49.
3 47 C.F.R.  11.35(a).
4 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200332620006 (Enf. Bur., New Orleans Office, rel. Feb. 14, 2003).
5 47 U.S.C.  503(b).
6 47 C.F.R.  1.80.
7 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) (``Forfeiture Policy Statement'').
8 47 U.S.C.  503(b)(2)(D).
9 47 C.F.R.  11.35(b).
10 See Response, at Exhibit  3:  Declaration of Michael  Schutta, 
General  Manager.   According  to  the  Declaration  of   Michael 
Schutta, the EAS equipment was taken out of operation on  October 
27, 2002, and re-installed on December 4, 2002.
11 Id. at 2-3.
12 2.
13  Pittman's  statement  concerning  natural  barriers  goes  to 
compliance with Section 1.1307 of the Rules which is not at issue 
here.  See 47  C.F.R.  1.1307  (actions requiring  environmental 
14 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).  
15 Id. at 3.
16 See Seawest Yacht  Brokers, 9 FCC Rcd  6099, 6099 (1994),  See 
also AT&T  Wireless  Services,  Inc., 17  FCC  Rcd  7891  (2002), 
forfeiture ordered, 17  FCC Rcd 21866,  21875-76 (2002);  Callais 
Cablevision, Inc., 17 FCC Rcd 22626, 22629 (2002); Radio  Station 
KGVL, Inc., 42 FCC 2d 258, 259 (1973); and Executive Broadcasting 
Corp., 3 FCC 2d 699, 700 (1966).
17 Response at 5.
18 Id. at 4.
19 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 
 8 (1992); see  also Forfeiture Policy  Statement at 17106-07   
20 See, e.g., Local Long Distance, Inc., 15 FCC Rcd 24385,  24389 
(2000), recon. denied, 16 FCC Rcd 10023, 10025 (2001) (forfeiture 
not deemed  excessive  where  it  represented  approximately  7.9 
percent of the violator's  gross revenues); Hoosier  Broadcasting 
Corporation,14 FCC Rcd 3356 (CIB 1999), recon. denied, 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 
21 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
22 47 U.S.C.  504(b).
23 47 U.S.C.  504(a).
24 See 47 C.F.R.  1.1914.