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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Martin Broadcasting, Inc. Owner of Antenna Structure No.
1060813 Beaumont, Texas ) ) ) ) ) ) ) File No.: EB-11-HU-0052 NAL/Acct.
No.: 201232540004 FRN: 0003768603
Adopted: March 1, 2013 Released: March 1, 2013
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of eight thousand dollars ($8,000) to Martin Broadcasting,
Inc. (Martin Broadcasting), owner of antenna structure number 1060813
(the Antenna Structure), located in Beaumont, Texas, for the willful
and repeated violations of Section 303(q) of the Communications Act of
1934, as amended (Act), and Sections 17.47(a) and 17.51(a) of the
Commission's rules (Rules).^ The noted violations involved Martin
Broadcasting's failure to (1) exhibit red obstruction lighting from
sunset until sunrise, and (2) monitor the Antenna Structure lighting
on a daily basis.
2. On June 5, 2012, the Enforcement Bureau's Houston Office (Houston
Office) issued a Notice of Apparent Liability for Forfeiture and Order
(NAL) ^ ^ to Martin Broadcasting for antenna structure lighting and
monitoring violations. In response to the NAL, Martin Broadcasting
does not contest the violations, but nonetheless urges cancellation or
reduction of the proposed $10,000 forfeiture, asserting that it has
not been cited for any violations since it obtained the Antenna
Structure nearly 20 years ago and that its "financial conditions . . .
raise the issue of its ability to pay the forfeiture proposed."^
Martin Broadcasting also certified that the lighting on the Antenna
Structure was restored on January 5, 2012, and that it is monitoring
the structure's lighting as required.^
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
Forfeiture Policy Statement.^ In examining Martin Broadcasting's
response, Section 503(b)(2)(E) 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.^ As discussed below, we have
considered Martin Broadcasting's response in light of these statutory
factors, and find that a reduction of the forfeiture is warranted
based solely on its history of compliance with the Rules.
4. First, we affirm the NAL's uncontested finding that Martin
Broadcasting violated Section 303(q) of the Act, and Sections 17.47(a)
and 17.51(a) of the Rules.^ Section 303(q) of the Act states that
antenna structure owners shall maintain the painting and lighting of
antenna structures as prescribed by the Commission.^ Section 17.51(a)
of the Rules states that "[a]ll red obstruction lighting shall be
exhibited from sunset until sunrise unless otherwise specified."^
Section 17.47(a) of the Rules states that owners of antenna structures
"(1) shall make an observation of the antenna structure's lights at
least once each 24 hours either visually . . . to insure that all such
lights are functioning properly as required; or alternatively (2)
shall provide and properly maintain an automatic alarm system designed
to detect any failure of such lights and to provide indication of such
failure to the owner. . . ."^ As reflected in the NAL, an agent from
the Houston Office observed that the top and midpoint red obstruction
lights and the . side lights on the Antenna Structure were
extinguished after sunset on November 28 and 29, 2011. Martin
Broadcasting also admitted that it was not observing the Antenna
Structure's lights once every 24 hours and had no automatic alarm
system. Based on the evidence before us, we conclude that Martin
Broadcasting willfully and repeatedly violated Section 303(q) of the
Act and Sections 17.47(a) and 17.51(a) of the Rules by failing to (1)
exhibit red obstruction lighting on the Antenna Structure from sunset
until sunrise, and (2) monitor the Antenna Structure's lights as
5. Martin Broadcasting nonetheless requests cancellation or reduction of
the $10,000 forfeiture based on its history of compliance with the
Rules and its inability to pay. After reviewing the Commission's
records, we find that reduction of the forfeiture based on Martin
Broadcasting's history of compliance with the Commission's rules is
warranted and reduce the forfeiture by $2,000. With regard to an
individual or entity's inability to pay claim, the Commission has
determined that, in general, gross revenues are the best indicator of
an ability to pay a forfeiture.^ As Martin Broadcasting notes, the
Commission has in a few limited cases looked to other factors,
including profits and losses, to determine ability to pay.^ Those
cases, however, involved licensees in severe financial distress.
Although it states it "has either sustained an operating loss or had
no taxable income" over the past three years,^ Martin Broadcasting has
failed to demonstrate that it is experiencing a comparable level of
financial distress or that it otherwise should qualify for an
exception to our gross revenues policy. For example, unlike First
Greenville, Martin Broadcasting has not indicated that its owners have
personally funded its losses, loaned it significant funds, and
received no income from it.^ Moreover, unlike Rish, Martin
Broadcasting services a city with a population of 118,296.^ Based on
the financial documents provided by Martin Broadcasting, we thus
conclude its gross revenues are sufficient to support the forfeiture
and decline to reduce on inability to pay on these grounds.^
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Martin
Broadcasting, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount
of eight thousand dollars ($8,000) for violations of Section 303(q) of
the Act and Sections 17.47(a) and 17.51(a) of the Commission's rules.^
7. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Martin Broadcasting, Inc. shall send
electronic notification of payment to SCR-Response@fcc.gov on the
date said payment is made. The payment must be made by check or
similar instrument, wire transfer, or credit card, and must include
the NAL/Account number and FRN referenced above. Regardless of the
form of payment, a completed FCC Form 159 (Remittance Advice) must be
submitted.^ When completing the FCC Form 159, enter the Account Number
in block number 23A (call sign/other ID) and enter the letters "FORF"
in block number 24A (payment type code). Below are additional
instructions you should follow based on the form of payment you
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
8. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer--Financial Operations, Federal Communications
Commission, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554.^ If you have questions regarding payment procedures, please
contact the Financial Operations Group Help Desk by phone, 1-877-480-3201,
or by e-mail, ARINQUIRIES@fcc.gov.
9. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Martin Broadcasting, Inc. at P.O. Box 419, Baytown, Texas
77522-0419, and to its counsel, Barry A. Friedman at Thompson Hine LLP,
1919 M Street, N.W., Suite 700, Washington, DC 20036-1600.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
^ 47 U.S.C. S 303(q); 47 C.F.R. SS 17.47(a), 17.51(a).
^ Martin Broadcasting, Inc., Notice of Apparent Liability for Forfeiture
and Order, 27 FCC Rcd 6017 (Enf. Bur. 2012). A comprehensive recitation of
the facts and history of this case can be found in the NAL and is
incorporated herein by reference.
^ Letter from Barry A. Friedman, Counsel for Martin Broadcasting, Inc., to
the Houston Office, South Central Region, Enforcement Bureau, at 1-2 (July
11, 2012) (on file in EB-11-HU-0052) (NAL Response).
^ Id. at 1. See also Letter from Barry A. Friedman, Counsel for Martin
Broadcasting, Inc., to the Houston Office, South Central Region,
Enforcement Bureau (June 28, 2012) (on file in EB-11-HU-0052).
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See NAL, supra note 2.
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. S 17.51(a).
^ 47 C.F.R. S 17.47(a).
^ See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
^ See, e.g., First Greenville Corporation, Memorandum Opinion and Order
and Forfeiture Order, 11 FCC Rcd 7399 (1996) (First Greenville), Benito
Rish, Memorandum Opinion and Order, 10 FCC Rcd 2861 (1995) (Rish).
^ NAL Response at 2.
^ Cf. First Greenville, 11 FCC Rcd at 7403 (considered that the station's
losses exceeded its income and that the sole shareholder funded those
losses and received no income from the station when reducing proposed
^ According to the 2010 Census, Beaumont City, Texas has a population of
118, 296. http://2010.census.gov/2010census/popmap/ipmtext.php?fl=48
(last visited Aug. 10, 2012). Cf. Rish, 10 FCC Rcd at 2862 (considered the
station's unprofitable history and the fact that it was a directional
daytime-only AM station serving a small community of license with a
population of 425 when reducing proposed forfeiture).
^ The $10,000 forfeiture falls within the percentage range that the
Commission has previously found acceptable. The $2,000 reduction based on
history of compliance with the Rules also reduces the financial penalty
imposed against Martin Broadcasting.
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80(f)(4), 17.47(a), 17.51(a).
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 13-304
Federal Communications Commission DA 13-304