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

In the Matter of                 )    File No. EB-02-AT-379
                                )    NAL/Acct. No. 200332480012
Fun Media Group, Inc.            )    FRN No. 0007-3298-65
Owner of Antenna Structure       )
#1043249 in                      )
Scant City, Alabama              )
Arab, Alabama


Adopted:  October 6, 2005                             Released:  
October  11, 2005

By the Chief, Enforcement Bureau:


     1.      In this Memorandum Opinion and Order (``MO&O'') we 
deny a Petition for Reconsideration (``Petition'') filed on July 
8, 2004, by Fun Media Group (``FMG''), licensee of Station 
WAFN(FM), Arab, Alabama, and owner of antenna structure number 
1043249, Scant City, Alabama.  FMG seeks reconsideration of a 
June 8, 2004 Forfeiture Order (``Order''),1 in which the 
Enforcement Bureau issued a monetary forfeiture in the amount of 
eight thousand dollars ($8,000) for willful violation of Section 
17.50 of the Commission's Rules ("Rules").2  The noted violation 
involves FMG's failure to clean and repaint its antenna structure 
to maintain good visibility.  For the reasons discussed below, we 
affirm the monetary forfeiture of $8,000.


      2.       On October  30, 2002, a Commission agent 
(``agent'') from the Atlanta, Georgia Field Office (``Field 
Office'') inspected the referenced antenna structure (or 
``tower'') owned by FMG.  The Commission's antenna structure 
registration database indicates that the structure is required to 
be painted.  At the time of the inspection, the agent observed 
that the tower's aviation orange and white paint was faded and 
chipped, reducing the visibility of the structure.  

     3.   On December 6, 2002, the Atlanta Office proposed a 
$10,000 forfeiture in a Notice of Apparent Liability for 
Forfeiture (``NAL'') for the antenna structure violation.  On 
January 13, 2003, FMG submitted a response to the NAL 
(``Response'').3  In its Response, FMG disputed the findings of 
the Atlanta Office regarding the condition of the antenna 
structure, and requested a cancellation of the forfeiture based 
on its assertion that the circumstances surrounding the 
inspection did not support the violation cited in the NAL.  In 
denying FMG's request, the Order noted that the forfeiture was 
reduced to $8,000 because FMG has no prior record of violation 
with the Commission.  FMG petitioned for reconsideration stating 
that the Order failed to properly address FMG's arguments 
concerning the conditions of the tower, the agent's distance from 
the structure and other important facts which, in FMG's view, 
undermine the validity of the NAL.  

             4.         Section 503(b) of the Communications Act 
of 1934,4 as amended (``Act''), Section 1.80 of the Rules,5 and 
The Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Rules to Incorporate the Forfeiture 
Guidelines6 (``Forfeiture Guidelines'') set forth the 
Commission's standards for review of a petition for 
reconsideration of the imposition of a forfeiture for a rule 
violation.  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 such other matters as justice may require.7


     A.    Licensee's Arguments

      5.  Section 17.50 of the Rules states that antenna 
structures requiring painting must be cleaned or repainted as 
often as necessary to maintain good visibility.  The Commission 
has consistently held that there is a significant public safety 
concern with regard to antenna structures.  Thus, the Commission 
enforces antenna structure registration requirements and painting 
requirements to maintain the tower's visibility to aircraft.8 

              6.    FMG alleges that the Order failed to  provide 
an analysis  of  the factors  proffered  by FMG  challenging  the 
agent's ability  to observe  the condition  of the  tower.    FMG 
argues that the effects of distance from which the agent observed 
the tower  and weather  prevented the  agent from  being able  to 
determine correctly the  tower's condition on  October 30,  2002.  
FMG further asserts that because October 30, 2002 was an overcast 
day, the  tower would  appear  dark and  also submits  a  weather 
report (``report'')  showing  1  ¼  inches  of  precipitation  on 
October 30, 2002.  

             7.     We  disagree.    The  Order   addressed   all 
factors, concluding that the tower  observation by the agent  met 
established procedure,  and  that the  agent's  observations  and 
experience allowed him  to determine the  tower's condition.   We 
find nothing in FMG's Petition to warrant overturning the agent's 
determination.9 This conclusion is  buttressed by the facts  that 
the agent observed the tower  from an approved distance and  with 
the benefit of  binoculars as  noted in  FMG's Petition.10   That 
October 30,  2002,  was  an  overcast  and  rainy  day  does  not 
undermine the validity of the agent's observations, which reflect 
a thorough and proper analysis of the tower's condition.  

                 8.       FMG also contends that a series of 
statements by ``independent third parties'' have sufficient 
weight to overrule the agent's observations.  Again, we disagree.  
As noted in the Order neither the statement of John Hain nor 
Robert Murphy specifically addresses the condition of the tower 
on October 30, 2002.  These statements do not belie the validity 
of the agent's observations and determination that the antenna 
structure was not in compliance with § 17.50.  Hain's statement, 
dated January 10, 2003, contends that the tower was properly 
painted sometime within the period from July 10, 2002 and January 
10, 2003, but provides no specificity as to whether the antenna 
was painted on October 30, 2002.  Murphy's statement reflects his 
observations during a flight on September 29, 2002, more than a 
month prior to the agent's observation.  He states that he has 
never had a problem seeing the towers, and then further states 
they are depicted on the Atlanta Sectional.  Murphy's observation 
as to the tower's condition appears to be based on his overall 
familiarity with the tower rather than the particular condition 
of the tower on a date proximate to October 30, 2002.  Our 
rejection of his conclusion is further premised on the fact that 
he viewed the tower from a distance of 11/2 miles.  In sum, we 
find that neither statement reflects the condition of the tower 
on October 30, 2002, and thus reject them and the argument that 
they overrule the agent's observations.  Further, as a factual 
matter, FMG states that the tower was painted ``in December 23, 
2002'' almost two months after the agent's observations.

                 9.       FMG further argues that the fact the 
National Weather System (``NWS'') used the tower for its 
operation established the fact the tower was in good condition.  
The acceptance by the NWS of FMG's tower for use in its operation 
does not establish that the NWS considered anything other than 
the tower's location.  We note that FMG has not provided any 
evidence that the National Weather Service considered the paint 
condition of the tower in selecting the tower.  Thus, we reject 
this argument.

             10.      In its petition, FMG next argues that the 
photographic evidence it submitted was not addressed.  After 
review of the record, we agree with FMG and will address the 
photographic evidence FMG provided herein.11  FMG submitted in 
its January 13, 2003 response to the NAL, a series of pictures of 
its tower taken from ¼ mile on December 9, 2002.  In these 
photographs, the tower appears faded and dark.  The photographs 
taken by FMG cannot overcome the observations of the agent made 
on October 30, 2002, from as close as 100 feet with the benefit 
of using binoculars.  We thus find that the photographic evidence 
submitted by FMG does not undermine the agent's determination or 
warrant reversal.  We further find that Midwest,12 cited by FMG, 
is inapposite as the pictorial record in Midwest was conclusive 
in establishing that the agent's conclusion was erroneous.

     B.         Inability to pay

              11.     In the  Order, we  considered  Petitioner's 
arguments, supporting material and cases cited and concluded that 
the FMG has  not given  sufficient justification  to warrant  the 
requested reduction.  


       12.  In its Petition, FMG again raises the issue of 
inability to pay, but adds nothing to its previously rejected 
showing that would permit us to approve its request.  In 
analyzing economic hardship claims, as the Order explains,13 the 
Commission generally looks to companies' gross revenues as 
reasonable and appropriate yardsticks to determine their ability 
to pay assessed forfeitures.14  Indeed, the Commission stated 
that if companies' gross revenues are sufficiently large, the 
fact that net losses are reported, alone, does not necessarily 
establish inability to pay.15  We find that FMG's tax returns for 
1999, 2000, 2001, 2002 and 2003 reflect sufficiently large gross 
revenues and that FMG's gross revenues effectively negate the 
financial hardship claim.16  FMG seeks to distinguish the holding 
in PJB Communications (``PJB'')17 that gross revenues, not losses 
are the standard for determining an inability to pay claim.  
FMG's argument is predicated upon the Commission's recognition of 
an exception to the holding in PJB, that in limited 
circumstances, losses may be considered sufficient to justify an 
inability to pay claim.  By referencing salaries and debt 
payments in its returns, FMG claims that it meets the 
exception.18  FMG does not explain how its described 
circumstances bring it within the noted exception.  We further 
find that FMG has not substantiated its claim that payment of the 
$8,000 claim would adversely affect its service to the public.19  
Finally, the cases FMG seeks to distinguish20 are not on point, 
as each case is cited only for the forfeiture's percentage of 
that licensee's gross revenue and the fact that the forfeiture 
percentage was found reasonable.  The instant forfeiture 
assessment and the percentage of gross revenues it represents 
falls within the range that has been found acceptable.21  
Accordingly, we reject FMG's claim of inability to pay.

            C. Conclusion

            13.     We have examined  FMG's Petition pursuant  to 
the statutory factors  above and in  conjunction with the  Policy 
Statement.  As  a result  of our  review, we  affirm the  Order's 
conclusion that FMG willfully violated Section 17.50 of the Rules 
and that no reduction is warranted for inability to pay.  


     14.        Accordingly, IT IS ORDERED THAT, pursuant to 
Section 40522 of the Act and Section 1.106 of the Rules,23 FMG's 
July 8, 2004 Petition for Reconsideration of the Enforcement 
Bureau's Forfeiture Order issued on June 8, 2004 IS DENIED.

     15.  IT IS ALSO ORDERED THAT, pursuant to Section 503(b) of 
the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,24 
Fun Media Group IS LIABLE FOR A MONETARY FORFEITURE in the amount 
of eight thousand dollars ($8,000) for willfully violating 
Section 17.50 of the Rules.

     16.  Payment of the forfeiture shall be made in the manner 
provided in Section 1.80 of the Rules within 30 days of the 
release of the 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.25  
Payment of the forfeiture must be made by check or similar 
instrument, payable to the order of the Federal Communications 
Commission.  The payment must include the NAL/Acct. No. and FRN 
No. referenced above.  Payment by check or money order may be 
mailed to Federal Communications Commission, P.O. 
Box 358340, Pittsburgh, PA 15251-8340.  Payment by overnight mail 
may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 
1540670, Pittsburgh, PA 15251.   Payment by wire transfer may be 
made to ABA Number 043000261, receiving bank Mellon Bank, and 
account number 911-6106.

     17.       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 Fun Media Group, Inc., 981 Brindlee Mountain 
Parkway, Arab, AL 35016 and to its counsel, M. Scott Johnson, 
Gardner, Carton & Douglas, 1301 K Street, N.W. Suite 900 East 
Tower, Washington, D.C. 20005.


                         Kris Anne Monteith
Chief, Enforcement Bureau


1 Fun Media Group, Inc.,  19 FCC Rcd 10230 (Enf. Bur. 2004).
2 47 C.F.R. § 17.50.
3 FMG supplemented its Response on July 8, 2004 with tax  returns 
from 2002 and 2003.
4 47 U.S.C. § 503.
5 47 U.S.C. § 1.80.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 U.S.C. § 503(b)(2)(D).
8 SpectraSite Communications, Inc., 17 FCC Rcd 7884, 7888 (2002); 
AT&T Wireless Services,  Inc., 17  FCC Rcd  21866, 21871  (2002); 
Cumulus Licensing  Corp., 19  FCC Rcd  24,815 (Enf.  Bur.  2004); 
Exosphere Broadcasting, LLC, 19FCC  Rcd 23,554 (Enf. Bur.  2004); 
North Country Repeater, 19 FCC Rcd 22,139 (Enf. Bur. 2004). 
9 See William  L. Needham and  Lucille Needham, 18  FCC Rcd  5521 
(Enf.) Bur. 2002) (upholding the field agent's determination that 
the tower's painted bands were not clearly visible, despite tower 
owner's assertion  that  it  had  no  difficulty  discerning  the 
painted bands and maintained a painting schedule for the tower).   
10   FMG's   Petition   acknowledges   and   discounts,   without 
explanation, the effect the agent's use of binoculars had on  his 
ability to observe  the tower's  condition., even  at a  distance 
effectively less than 100 feet.  Petition, ¶ 5. 
11  The  Commission  has  determined  that  consideration  of   a 
previously  unconsidered   pleading  within   a   reconsideration 
proceeding is  appropriate where  all the  allegations are  fully 
reviewed  and  addressed   prior  to  a   determination  in   the 
reconsideration.  See California Metro Mobile Communications,  17 
FCC Rcd  22974 (2002);  Eagle Radio,  Inc., 12  FCC Rcd  5105  ¶2 
12  Midwest  Towers Partners,  LLC,18 FCC  Rcd 12921  (Enf.  Bur. 
13 12 FCC  Rcd 17087, 17093 ¶  9, recon. denied,  15 FCC Rcd  303 
(1999) ("Forfeiture Policy Statement").
14 ID. at 17113.
15 See, e.g.,   Alpha Ambulance,  Inc., 19 FCC  Rcd 2547  (2004); 
Local Long  Distance,  Inc.,  15 FCC  Rcd  24385  (2000),  recon. 
denied, 16  FCC  Rcd  10023,  10025,  ¶  6,  (2001);  Independent 
Communications, Inc., 14 FCC Rcd  9605 (1999), recon. denied,  15 
FCC Rcd 16060, 16060 ¶  2 (2000); Hoosier Broadcasting Corp.,  14 
FCC Rcd 3356 (CIB 1999), recon. denied, 15 FCC Rcd 8640, 8641 ¶ 7 
(Enf. Bur. 2000).
16 Id.
17 PJB Communications  of Virginia,  Inc., 7 FCC  Rcd 2088,  2089 
18 Id.
19 Petition for Reconsideration, para.13.
20 Hoosier Broadcasting Corp., 15  FCC Rcd 8640, 8641 (2003)  and 
Afton Comm. Corp. 7 FCC Rcd 6741, 6741 (1992).
21 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 
(1992) (Forfeiture  not  deemed excessive  where  it  represented 
approximately 2.02  percent of  the violator's  gross  revenues).  
See also, Hoosier Broadcasting Corporation, 15 FCC Rcd 8640, 8641 
(Enf. Bur.  2002)  (Forfeiture  not  deemed  excessive  where  it 
represented approximately 7.6 of the violator's gross  revenues); 
Afton Communications Corp., 7 FCC  Rcd 6741, 6742 (Comm.  Carrier 
Bur. 1992) (Forfeiture not deemed excessive where it  represented 
approximately 3.9 percent of violator's gross revenues).
22 47 U.S.C. § 405.
23 47 C.F.R. § 1.106.
24 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
25 See 47 U..S.C. § 504(a).