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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


   In the Matter of )


   Blountstown Communications, Inc. ) File No.: EB-03-TP-192

   Licensee of Radio Stations WYBT (AM) & ) NAL/Acct. No. 200432700006

   WPHK (FM) ) FRN 0000040428

   Blountstown, Florida )

                          MEMORANDUM OPINION AND ORDER

   Adopted:  January 25, 2007  Released:   January 29, 2007

   By the Assistant Chief, Enforcement Bureau:


    1. In this Memorandum Opinion and Order ("Order") we grant in part and
       deny in part the Petition for Reconsideration filed by Blountstown
       Communications, Inc. ("Blountstown"), licensee of Stations WYBT (AM)
       and WPHK (FM), Blountstown, Florida. Blountstown seeks reconsideration
       of the Forfeiture Order  in which the Enforcement Bureau ("Bureau")
       found it liable for a monetary forfeiture in the amount of twenty-five
       thousand dollars ($25,000), for willful violations of Sections 11.35,
       73.49, and 73.3526(c) of the Commission's Rules ("Rules"). The noted
       violations involve Blountstown's failure to ensure operational
       Emergency Alert System ("EAS") equipment, failure to enclose the AM
       station's antenna tower within an effective locked fence, and failure
       to make available a complete public file. For the reasons discussed
       below, we reduce the forfeiture amount from $25,000 to $12,480.


    2. On April 7, 2003, agents from the Commission's Enforcement Bureau's
       Tampa, Florida Field Office ("Tampa Office") inspected station WYBT
       (AM) and WPHK (FM) in Blountstown, Florida. The agents found the
       stations' EAS equipment inoperative, the AM antenna system's high RF
       potential exposed and accessible, and a public file which consisted
       only of a Commission station license and tower registration.   On
       December 16, 2003, the District Director of the Tampa Office issued a
       Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
       $25,000 to Blountstown. Blountstown did not file a response to the
       NAL. On April 16, 2004, the Bureau issued the Forfeiture Order, which
       imposed a monetary forfeiture in the amount of $25,000. Blountstown
       subsequently filed a petition for reconsideration ("petition") of the
       Forfeiture Order on May 17, 2004, requesting cancellation or reduction
       of the forfeiture. Specifically, the petition requests: (1)
       cancellation of the Section 11.35 violation based on proffered
       evidence that Blountstown acted in compliance with Section 11.35(b) in
       an effort to maintain operational EAS equipment; (2) cancellation of
       the Section 73.3526(c) violation based on the existence of a public
       file and misunderstanding surrounding its production at the time of
       the inspection; (3) cancellation or reduction of the Section 73.49
       violation based on environmental circumstances and remediation
       efforts; and (4) cancellation or reduction of the monetary forfeiture
       based on Blountstown's inability to pay and its record of compliance.
       In support of these contentions, Blountstown submitted affidavits,
       relevant broadcast station daily log sheets, as well as its Federal
       tax returns for the relevant three year period.

    3. The forfeiture amount in this case was assessed in accordance with
       Section 503(b) of the Communications Act of 1934, as amended ("Act"),
       Section 1.80 of the Rules, and The Commission's Forfeiture Policy
       Statement and Amendment of Section 1.80 of the Rules to Incorporate
       the Forfeiture Guidelines. In examining Blountstown's petition,
       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.


     A. Violation of Section 11.35(a) of the Rules

   1. Background

    4. Section 11.35(a) of the Rules requires all broadcast stations to
       ensure that EAS encoders, EAS decoders, and attention signal
       generating and receiving equipment used as part of the EAS are
       installed and operational so that the monitoring and transmitting
       functions are available during the times the station is in operation.

   2. Discussion

    5. Blountstown admits that stations WYBT and WPHK did not have fully
       operational EAS equipment during the inspection; that is, Blountstown
       could generate EAS reports, but the stations could not receive EAS
       alerts from the stations Blountstown was required to monitor.
       Blountstown, however, contends that there is no basis for violation,
       and the forfeiture amount for this violation should be cancelled
       because Blountstown was in full compliance with Section 11.35(b) of
       the Rules, which permits operation without the EAS equipment for a 60
       day period if the EAS equipment becomes defective. Section 11.35(b)
       specifically allows a broadcast station to continue operation without
       EAS equipment when: the presently installed EAS equipment becomes
       defective and that fact is noted on the broadcast station log, repairs
       or replacements are made within 60 days, and the broadcast station log
       documents the date and time the repairs were completed. In an
       affidavit by the Station Principal and General Manager, Mr. Harry
       Hagan, Blountstown affirmed that the EAS equipment failed on March 5,
       2003, at which point it logged the incident in the broadcast station
       log and began corrective action. The EAS equipment was again fully
       operational on April 10, 2003, within the 60 day period permitted
       under Section 11.35(b). Blountstown supports these assertions with
       copies of the relevant station daily log sheets for the stations that
       document the actions Blountstown took to maintain and correct the EAS
       system. We note that Blountstown's petition for reconsideration does
       not address the observations made by the agents during the inspection
       that Blountstown had not logged the EAS equipment failure, and
       subsequent repair, in the stations' EAS logs. However, we find that
       the documentation provided by Blountstown regarding the failure of the
       EAS system and its repair within the specified time period
       demonstrates compliance by Blountstown with Section 11.35(b). Based on
       the evidence submitted, we therefore cancel the eight thousand dollar
       ($8,000) forfeiture for the violation of Section 11.35(a) of the

     A. Violation of Section 73.3526(c)

   1. Background

    6. Section 73.3526(c) of the Rules requires that every permittee or
       licensee of an AM, FM, TV or Class A TV station in the commercial
       broadcast services shall maintain a public inspection file, which
       shall be available for public inspection at any time during business
       hours. The Commission has found that reasonable access to the public
       inspection file serves the important purpose of facilitating citizen
       monitoring of a station's operations and public interest performance,
       and fostering community involvement with local stations, thus helping
       to ensure that stations are responsive to the needs and interests of
       their local communities.

   2. Discussion

    7. Blountstown contends that it maintains a public file for both
       stations, that the file existed at the time of the inspection, and
       Blountstown's failure to produce the file was a result of a
       misunderstanding between the manager and the Commission agents.
       Blountstown provided affidavits by the staff person present at the
       time of the investigation, Cathy Hagan, as well as the Station
       Principal, Harry Hagan, attesting to the fact that the public file was
       not produced because the Commission agents withdrew the request to
       view the file. Blountstown cites Radio One Licenses, Inc.  ("Radio
       One"), wherein the Commission canceled the forfeiture for a public
       inspection file violation based on additional findings that the public
       inspection file existed at the time of the inspection, despite the
       station's failure to provide the file upon two requests by the
       Inspecting Agent.

    8. The rule cited in Radio One, Section 73.3526(a)(2), however, is a
       different rule than the one cited in the instant case; Section
       73.3526(a)(2) requires that the public file exist and be maintained,
       which Radio One eventually proved. As explained above, Section
       73.3526(c) requires that the public file be accessible. Ms. Hagan, the
       one who dealt with the agent's request to see the file, admits in her
       affidavit that the file was not immediately available; she did not
       know its exact whereabouts. Further, she claims that the agent
       withdrew his request for the file; the agent, however, disputes that
       statement. In Commission cases that have involved this Section, the
       Commission has found a violation under similar circumstances where the
       entire file was not made available at the time of the inspection.
       Thus, based on the evidence, we find that Blountstown willfully
       violated Section 73.3526(c) of the Rules by failing to make available
       a complete public inspection file. Blountstown's request to cancel or
       reduce the forfeiture amount of ten thousand dollars ($10,000.00) is
       thereby denied.

     A. Violation of Section 73.49

   1. Background

    9. Section 73.49 of the Rules requires AM station towers with radio
       frequency potential at the base to be enclosed with effective locked
       fences or other enclosures. The Enforcement Bureau has imposed
       forfeitures for violation of this rule in numerous cases because of
       the safety concerns to the public that fencing violations represent.

   2. Discussion

   10. In addition to the antenna tuner and feedline being exposed, the FCC
       investigation established that neither the property nor the base of
       the AM station tower was enclosed, as required by Section 73.49.
       Blountstown argues that the surrounding area is swamp; therefore, it
       is not conducive to fencing and requires the talents of an expert
       installer. Because Blountstown was in the process of employing an
       expert installer prior to the investigation and installation of the
       fence occurred immediately after the investigation, Blountstown
       contends that these pre-inspection attempts constitute a voluntary
       corrective effort and requests cancellation of this violation based on
       the decision in East Tennessee Radio Group. In addition, Blountstown
       claims that the environmental conditions themselves served as a
       natural deterrent to inadvertent interference with the equipment.

   11. This case is factually distinguishable from East Tennessee, as East
       Tennessee concerned the investigation of a Section 17.57 violation,
       involving a failure to notify the Commission of a change in antenna
       ownership. The activity in East Tennessee involved a replacement item
       while Blountstown involves the initial construction of a required
       item. Due to repeated acts of vandalism, East Tennessee was forced to
       repeatedly replace its sign identifying the ownership of the antenna
       structure. Prior to the Commission investigation, the engineer knew
       the sign had been removed for the third time and had already ordered a
       replacement. In contrast, Blountstown's facility was completed in
       April 2002 and did not have appropriate fencing more than a year
       later. However, according to the affidavit of Mr. Hagan, between the
       time the facility was completed and the Commission inspection, he made
       a number of attempts to have the fence installed, which we will
       consider as good faith efforts. As for the marshy terrain, the
       surrounding environment is not a mitigating factor in determining
       compliance with the Rule. As the Commission has stated, "[n]either the
       Rules nor case law permit[s] `natural barriers' to meet the
       requirements of Section 73.49 of the Rules." Therefore, due to
       Blountstown's good faith efforts to find a contractor to build the
       fence, the forfeiture of $7,000 is reduced to $5,600.

     A. Inability to Pay  and History of Compliance

          1. Background

   12. Under the Forfeiture Policy Statement and Section 1.80(b)(4) of the
       Rules, inability to pay is a downward adjustment factor for Section
       503 forfeitures. In analyzing economic-hardship claims, the Commission
       generally looks to a company's gross revenues from the three most
       recent tax years as a reasonable and appropriate yardstick to
       determine its ability to pay an assessed forfeiture. Indeed, the
       Commission has stated that if a company's gross revenues are
       sufficiently large, the fact that net losses are reported, alone, does
       not necessarily signify an inability to pay. Forfeitures have also
       been downwardly adjusted in cases where Commission licensees claim,
       and agency records confirm, a history of overall compliance with the
       Act and the Rules.

   2. Discussion

   13. Blountstown contends that it is unable to pay the monetary forfeiture
       as exhibited by its Federal tax returns. We have reviewed the
       financial information Blountstown provided, and we find in light of
       the reduction discussed herein this information does not provide a
       basis for further reduction of the forfeiture.

   14. Finally, Bountstown asserts that the instant forfeiture amount should
       be reduced because of Blountstown's history of overall compliance. We
       agree that a reduction of the forfeiture amount is warranted, based
       upon our review of the record and finding that Blountstown has a
       history of overall compliance with the Rules. Accordingly, we further
       reduce the forfeiture amount from $15,600 to $12,480 pursuant to
       Section 1.80(b)(4) of the Rules.

   15. We have examined Blountstown's Petition for Reconsideration pursuant
       to the statutory factors above, and in conjunction with the Forfeiture
       Policy Statement. As a result of our review, we conclude that
       Blountstown willfully violated Sections 73.49 and 73.3526(c) of the
       Rules and find that, although cancellation of the monetary forfeiture
       is not warranted, reduction of the forfeiture amount to $12,480 is


   16. ACCORDINGLY, IT IS ORDERED  that, pursuant to Section 405 of the Act
       and Section 1.106 of the Rules, Blountstown's petition for
       reconsideration of the April 16, 2004, Forfeiture Order IS GRANTED IN
       PART  to the extent indicated AND DENIED IN ALL OTHER PARTS  as
       specified herein.

   17. IT IS FURTHER ORDERED THAT Blountstown Communications, Inc. is LIABLE
       FOR A MONETARY FORFEITURE in the amount of twelve thousand, four
       hundred eighty dollars ($12,480) for willful and repeated violation of
       Section Sections 73.49 and 73.3526(c) of the Rules.

   18. 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. 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. Requests for
       full payment under an installment plan should be sent to: Associate
       Managing Director - Financial Operations, 445 12th Street, SW, Room
       1A625, Washington, D.C. 20554.

   19. IT IS FURTHER ORDERED THAT a copy of this Order shall be sent by first
       class mail and certified mail, return receipt requested, to
       Blountstown Communications, Inc., 20872 N.E. Kelly Avenue,
       Blountstown, Florida 32424, to 612 North Jefferson Street, Perry,
       Florida 32347, and to John S. Neely, Miller and Neely, P.C., 6900
       Wisconsin Ave., Suite 704, Bethesda, MD 20815.


   George R. Dillon

   Assistant Chief, Enforcement Bureau

   Blountstown Communications, Inc., 19 FCC Rcd 6894 (Enf. Bur. 2004).

   47 C.F.R. SS 11.35, 73.49 and 73.3526(c).

   During the inspection, the agents observed that the last evidence of EAS
   operation in the stations' EAS logs was dated April 1999. Further, the EAS
   logs did not reflect that the equipment had been removed from service for

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200432700006
   (Enf. Bur., Tampa Office, rel. December 16, 2003).

   47 U.S.C. S 503.

   47 C.F.R. S 1.80.

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

   47 U.S.C. S 503(b)(2)(D).

   47 C.F.R. S 11.35(b) ("If the EAS Encoder or EAS Decoder becomes
   defective, the broadcast station . . . may operate without the defective
   equipment pending its repair or replacement for 60 days without further
   FCC authority.").

   See Affidavit of Harry Hagan, Blountstown Station Principal and General
   Manager, May 17, 2004.

   Attached to Mr. Hagan's affidavit are three log sheets: one dated March 5,
   2003 (the day the equipment failed), a second one dated April 7, 2003 (the
   day of the inspection) and a third one dated April 10, 2003, which
   demonstrated that the EAS receiver was repaired.

   See American Family Association, Inc., 18 FCC Rcd 16530 (Enf. Bur. 2003)
   (canceling the EAS violation based on a finding that a defective EAS
   system that is repaired within the statutory period permitted under
   Section 11.35(b) does not violate Section 11.35(a) when supported by logs
   of the incident). Although Blountstown does not provide the quantity of
   documents provided by American Family Association --namely, an entire
   year's worth of log sheets--the quality and significance of the log sheets
   submitted coupled with the affidavit provided are sufficient to support
   cancellation of the forfeiture amount for the EAS violation. See Tidewater
   Communications, 18 FCC Rcd 5524 (Enf. Bur. 2003) (NAL canceled where
   affidavit and supporting documentation demonstrated compliance with rule).

   Review of the Commission's Rules regarding the Main Studio Rule and Local
   Public Inspection Files of Broadcast Television and Radio Stations, 13 FCC
   Rcd 15691, 15700 (1998). See also Union Broadcasting, Inc., 19 FCC Rcd
   18588, 18590 (Enf. Bur. 2004).

   Radio One Licenses, Inc., 16 FCC Rcd 15326 (Enf. Bur. 2000);
   reconsideration granted in part,  17 FCC Rcd 20408,  20409 (Enf. Bur.
   2002). Subsequent Commission decisions denied two Radio One
   reconsiderations on other grounds, 18 FCC Rcd 15964 (2003), 18 FCC Rcd
   25481 (2003). Blountstown cited the case, Licensee of Station WBOT (FM),
   but the actual cite is Radio One,  as given above.

   47 C.F.R. S 73.3526(a)(2)

   See Jesse C. and Ernestine A. Ross, 19 FCC Rcd. 20823 (Enf. Bur. 2004),
   aff'd on other grounds, 21 FCC Rcd. 7913 (Enf. Bur. 2006); Victory & Power
   Ministries, Inc., 19 FCC Rcd. 19761 (Enf. Bur. 2004); EICB-TV, LLC., 19
   FCC Rcd. 18611 (Enf. Bur. 2004); Marion R. Williams, 19 FCC Rcd. 15324
   (Enf. Bur. 2004); and Willis Broadcasting Corp, 17 FCC Rcd. 7053 (Enf.
   Bur. 2002).

   See, e.g., East Texas Broadcasting Company, Inc., 19 FCC Rcd 22491 (Enf.
   Bur. 2004) and Buchanan Broadcasting Company, Inc. 15 FCC Rcd 24363

   18 FCC Rcd 27084 (Enf. Bur. 2003).

   See Big Island Radio, 19 FCC 20819 (Enf. Bur. 2004); Southern Media
   Communications, Inc., 19 FCC 18146 (Enf. Bur. 2004) (forfeiture amounts
   reduced where licensees were able to demonstrate by affidavits that they
   had taken steps towards correcting the noted problems before the
   Commission inspection).

   Pittman Broadcasting Services, LLC, 19 FCC Rcd 15320, 15322 (Enf. Bur.
   2004) (determining that marshy conditions or other "natural barriers" are
   not sufficient to constitute compliance with Section 73.49). See
   Forrester, et al., 19 FCC Rcd 11030 (Enf. Bur. 2004) (finding that failure
   to demonstrate the existence of a locked fence or other enclosure cannot
   be mitigated by natural environmental deterrents).

   See Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. S
   1.80(b)(4), Note to paragraph (b)(4): Section II. Adjustment Criteria for
   Section 503 Forfeitures.

   See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992); see
   also Forfeiture Policy Statement, 12 FCC Rcd at 17106-07, P 43.

   See, e.g., Local Long Distance, Inc., 15 FCC Rcd 24385 (2000), recon.
   denied, 16 FCC Rcd 10023, 10025 (2001); Independent Communications, Inc.,
   14 FCC Rcd 9605 (1999), recon. denied, 15 FCC Rcd 16060, 16060 (2000);
   Hoosier Broadcasting Corp.. 14 FCC Rcd 3356 (CIB 1999), recon. denied, 15
   FCC Rcd 8640, 8641 (Enf. Bur. 2000).

   47 C.F.R. S 1.80(b)(4) ("Section II. Adjustment Criteria for Section 503
   Forfeitures, Downward Adjustment Criteria").

   See  PJB Communications  of Virginia, Inc., supra n. 20 (forfeiture not
   deemed excessive where it represented approximately 2.02 percent of the
   violator's gross revenues); Hoosier Broadcasting Corporation, Inc., id. at
   8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
   represented approximately 7.6 percent of the violator's gross revenues).
   In this case, the forfeiture represents a smaller percentage than that
   issued in Hoosier Broadcasting Corp., but a higher percentage compared to
   the forfeiture issued in PJB Communications of Virginia, Inc.

   See Mr. Hagan's affidavit at p. 2, and Blountstown's petition at p. 4.

   See Max Media of Montana, L.L.C., 18 FCC Rcd 21375, 21379 (Enf. Bur. 2003)
   (further reducing the proposed forfeiture from $11,000 to $8,800 for
   antenna structure lighting and registration violations due to the
   licensee's history of overall compliance); South Central Communications
   Corp., 18 FCC Rcd 700, 702 (Enf. Bur. 2003) (reducing the proposed
   forfeiture from $10,000 to $8,000 for antenna structure lighting
   violations due to the licensee's history of overall compliance).

   47 U.S.C. S 405.

   47 C.F.R. S 1.106.

   47 U.S.C. S 504(a).

   See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 07-230


   Federal Communications Commission DA 07-230