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                                   Before the

   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




                                FORFEITURE ORDER

   Adopted: March 1, 2013 Released: March 1, 2013

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    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.

   II. BACKGROUND

    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.^

   III. DISCUSSION

    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
       required.

    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 [1]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
       select:

     * 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, [2]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

   Enforcement Bureau

   ^ 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
   forfeiture).

   ^ According to the 2010 Census, Beaumont City, Texas has a population of
   118, 296. [3]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

   4

   Federal Communications Commission DA 13-304

References

   Visible links
   1. mailto:SCR-Response@fcc.gov
   2. mailto:ARINQUIRIES@fcc.gov
   3. http://2010.census.gov/2010census/popmap/ipmtext.php?fl=48