Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Mattoon Broadcasting Company Licensee of Stations WLBH
   and WLBH-FM Mattoon, Illinois ) ) ) ) ) ) ) ) File Numbers: EB-10-CG-0282;
   EB-FIELDNER-12-00004396 NAL/Acct. No.: 201132320002 FRN: 0003773595
   Facility ID Nos. 40702 and 40703




                                Forfeiture Order

   Adopted: March 20, 2014 Released: March 20, 2014

   By the Regional Director, Northeast Region, Enforcement Bureau:

   I. Introduction

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of five hundred dollars ($500) to Mattoon Broadcasting
       Company (Mattoon Broadcasting), licensee of Stations WLBH(AM) and
       WLBH-FM, in Mattoon, Illinois (Stations),  for  willfully and
       repeatedly violating Sections 73.49 and 73.1125(a)  of the
       Commission's rules (Rules).^ Mattoon Broadcasting failed to enclose
       the AM Station's antenna structures within effective locked fences or
       other enclosures, and failed to maintain a management and staff
       presence at the Stations' main studio.

   II. Background

    2. On May 3, 2011, the Enforcement Bureau's Chicago Office issued a
       Notice of Apparent Liability for Forfeiture (NAL)^ in the amount of
       fourteen thousand dollars ($14,000) to Mattoon Broadcasting for (1)
       violating Section 73.49 of the Rules by failing to maintain effective
       locked fences or other enclosures around the AM Station's four antenna
       structures and (2) violating Section 73.1125(a) of the Rules for
       failure to maintain a management and staff presence at the Stations'
       co-located main studio. Specifically, an agent from the Chicago Office
       found that, on July 21 and 22, 2010, the Stations' main studio
       building was locked and no one answered when the agent rang the
       doorbell.^ On July 22, 2010, the agent also conducted an inspection of
       AM Station WLBH's antenna structures, which had radio frequency
       potential at their bases.^ The agent observed that the fences
       surrounding each of the antenna structures had either sections that
       were falling down or sections that were completely missing.^ In each
       case, the state of disrepair allowed unfettered access to the tower
       and there was no perimeter fence surrounding the property on which the
       antenna structures were located.^ Mattoon Broadcasting responded to
       the NAL on June 2, 2011.

    3. In its response to the NAL, Mattoon Broadcasting does not dispute the
       findings in the  NAL, but requests a reduction or cancellation of the
       proposed forfeiture claiming that: (1) new fences had been installed
       around the antenna structures within two weeks of the agent's
       inspection; (2) the General Manager of Mattoon Broadcasting "spend[s]
       a substantial amount of time each day at [the] main studio building. .
       .[but] was out of town for a few days from July 20-23, 2010," "medical
       problems caused the absence of another staff member," and two other
       staff members come and go throughout the day; and (3) Mattoon
       Broadcasting is facing financial difficulties and is unable to pay the
       proposed forfeiture."^

   III. Discussion

    4. The proposed 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 Forfeiture Policy
       Statement.^ In examining Mattoon 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 Mattoon
       Broadcasting's response in light of these statutory factors, and find
       that a reduction of the forfeiture is warranted based on Mattoon
       Broadcasting's inability to pay.

    5. We affirm the findings in the NAL that Mattoon Broadcasting willfully
       and repeatedly violated Section 73.49 of the Rules. Section 73.49 of
       the Rules requires that antenna structures having radio frequency
       potential at the base must be enclosed within effective locked fences
       or other enclosures.^ On July 22, 2010, an agent from the Chicago
       Office observed that the fences surrounding each of the antenna
       structures had either sections that were falling down or sections that
       were completely missing. Based on the degree of deterioration, agents
       concluded that the fences had been in disrepair for an extended period
       of time, a fact which Mattoon Broadcasting does not dispute. With
       regard to Mattoon Broadcasting's repairs to the fencing after the
       agent's inspection, the Commission has long held that corrective
       action taken to come into compliance with the Rules is expected, and
       such corrective action does not nullify or mitigate prior violations
       or associated forfeiture liability.^  Thus, based on the totality of
       the circumstances, we find that Mattoon Broadcasting willfully and
       repeatedly violated Section 73.49 of the Rules.

    6. We also affirm the findings in the NAL that Mattoon Broadcasting
       willfully and repeatedly violated Section 73.1125(a) of the Rules.
       Section 73.1125(a) of the Rules requires broadcast stations to
       maintain a main studio.^ The Commission has interpreted Section
       73.1125 (also known as the "Main Studio Rule") to require, among other
       things, that a licensee maintain a "meaningful management and staff
       presence" at its main studio.^ Specifically, the Commission has found
       that a main studio "must, at a minimum, maintain full time managerial
       and full-time staff personnel."^ Although management personnel need
       not be "chained to their desks" during normal business hours, they
       must "report to work at the main studio on a daily basis, spend a
       substantial amount of time there and...use the studio as a `home
       base.'"^  On July 21 and 22, 2010, an agent found, and Mattoon
       Broadcasting concedes, that no staff or management were present at the
       Stations' main studio during normal business hours. Mattoon
       Broadcasting's unsubstantiated claims that the General Manager as well
       as several other employees usually spend a substantial amount of time
       at the main studio does not change the fact that, on two days, the
       agent found no staff or management present at the main studio.
       Accordingly, we find that Mattoon Broadcasting willfully and
       repeatedly violated Section 73.1125(a) of the Rules by failing to
       maintain a meaningful presence at the Stations' main studio.

    7. We grant, however, Mattoon Broadcasting's request for a reduction
       based on its inability to pay. 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.^ Based on the financial documents provided by Mattoon
       Broadcasting, we find sufficient basis to reduce the forfeiture to
       $500. However, we caution Mattoon Broadcasting that a party's
       inability to pay is only one factor in our forfeiture calculation
       analysis, and is not dispositive.^ We have previously rejected
       inability to pay claims in cases of repeated or otherwise egregious
       violations.^ Therefore, future violations of this kind may result in
       significantly higher forfeitures that may not be reduced due to
       Mattoon Broadcasting's financial circumstances.

   IV. ordering clauses

    8. 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, Mattoon
       Broadcasting Company IS LIABLE FOR A MONETARY FORFEITURE in the amount
       of five hundred dollars ($500) for violation of Sections 73.49 and
       73.1125(a) of the Commission's rules.^

    9. 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.^  Mattoon Broadcasting Company shall send
       electronic notification of payment to NER-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.

   10. Any request for making full payment over time 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, [1]ARINQUIRIES@fcc.gov.

   11. 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 Mattoon Broadcasting Company at P.O. Box 322, Mattoon,
       Illinois 61938-0322 and 5746 E. Country Road 1000 N, North Route 45,
       Mattoon, Illinois, 61938.

   FEDERAL COMMUNICATIONS COMMISSION

   G. Michael Moffitt

   Regional Director

   Northeast Region

   Enforcement Bureau

   ^ 47 C.F.R. SS 73.49, 73.1125(a).

   ^Mattoon Broadcasting Company, Notice of Apparent Liability for
   Forfeiture, 26 FCC Rcd 6577 (Enf. Bur. 2011). A comprehensive recitation
   of the facts and history of this case can be found in the NAL and is
   incorporated herein by reference.

   ^ NAL, 26 FCC Rcd at 6577.

   ^ NAL, 26 FCC Rcd at 6577-6578.

   ^ NAL, 26 FCC Rcd at 6578.

   ^ Id.

   ^ Letter from James R. Livesay II, President and General Manager of
   Mattoon Broadcasting Company, to the Chicago Office, Northeast Region,
   Enforcement Bureau at 1-2 (dated June 2, 2011) (on file in EB-10-CG-0282)
   (Response).

   ^ 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).

   ^ 47 C.F.R. S 73.49.

   ^ See Consolidated Radio, Inc., 26 FCC Rcd 15173 (Enf. Bur. 2011) citing
   [2]International Broadcasting Corporation, Order on Review, 25 FCC Rcd
   1538 (2010).

   ^ 47 C.F.R. S 73.1125.

   ^ Amendment of Section 73.1125 and 73.1130 of the Commission's Rules, the
   Main Studio and Program Origination Rules for Radio and Television
   Broadcast Stations, Memorandum Opinion and Order, 3 F.C.C.R. 5024, 5026
   (1988), erratum issued, 3 FCC Rcd 5717 (1988) (correcting language in
   n.29).

   ^ See Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and
   Order, 6 FCC Rcd 3615, 3616 (1991) ("Jones Eastern") (noting that, "[t]his
   is not to say that the same staff person and manager must be assigned
   full-time to the main studio. Rather, there must be management and staff
   presence on a full-time basis during normal business hours to be
   considered `meaningful.'") clarified, 7 FCC Rcd 6800 (1992) ("Jones
   Eastern II"). See also Birach Broadcasting Corporation, Notice of Apparent
   Liability, 25 FCC Rcd 2635 (Enf. Bur. 2010).

   ^ Jones Eastern II, 7 FCC Rcd at 6802.

   ^ See 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 47 U.S.C. S 503(b)(2)(E) (requiring 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).

   ^ Dexter Blake, Memorandum Opinion and Order, 27 FCC Rcd 15087 (Enf. Bur.
   2012), aff'd in part, [3]Forfeiture Order, 25 FCC Rcd 10038 (Enf. Bur.,
   Northeast Region 2010) (reducing forfeiture based on inability to pay, but
   warning that future violations of the same kind may not be reduced due to
   financial circumstances); Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd
   7840 (Enf. Bur., Western Region 2011) (holding that violator's repeated
   acts of malicious and intentional interference outweigh evidence
   concerning his ability to pay) (petition for reconsideration pending);
   Hodson Broadcasting Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur.
   2009) (holding that permittee's continued operation at variance with its
   construction permit constituted an intentional and continuous violation,
   which outweighed permittee's evidence concerning its ability to pay the
   proposed forfeitures). See Michael W. Perry, Forfeiture Order, 27 FCC Rcd
   2281, 2284, para. 8 (2012) (reducing forfeiture based on inability to pay,
   but warning that future violations of the same kind may not be reduced due
   to financial circumstances).

   ^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
   73.49, 73.1125(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.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 14-377

   2

   Federal Communications Commission DA 14-377

References

   Visible links
   1. mailto:ARINQUIRIES@fcc.gov
   2. https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=0004493&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026419693&serialnum=2021196436&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=BED80D82&rs=WLW13.04
   3. https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=0004493&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2029442470&serialnum=2022592807&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=419A2F2F&rs=WLW13.01