*Pages 1--4 from Microsoft Word - 39434* Federal Communications Commission DA 04- 1760 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of M. J. Phillips Communications, Inc., Licensee of Station WJJL( AM) Niagara Falls, New York ) ) ) ) ) File No. EB- 02- BF- 344 NAL/ Acct. No. 200332280006 FRN 0004- 9421- 24 FORFEITURE ORDER Adopted: June 21, 2004 Released: June 23, 2004 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Forfeiture Order (“ Order”), we issue a monetary forfeiture in the amount of ten thousand dollars ($ 10,000) to M. J. Phillips Communications, Inc. (“ M. J. Phillips”), licensee of AM Station WJJL, Niagara Falls, New York, for its willful and repeated violations of the power restriction, Emergency Alert System (“ EAS”) and antenna structure requirements of Sections 73.1560( a)( 1), 11.35( a), 11.52( d) and 17.4( a) of the Commission’s Rules (“ Rules”). 1 II. BACKGROUND 2. On September 17 and 18, 2002, the Commission’s Buffalo, New York Office (“ Buffalo Office”) conducted on- site inspections of Station WJJL. The inspections revealed that the station had been exceeding its authorized power limits by more than 105 percent, 2 that its Emergency Alert System (“ EAS”) equipment had not been fully operational, 3 and had not been monitored, tested and logged on a regular basis, 4 and that its antenna structure had not been registered. 5 As a result of the inspections, the 1 47 C. F. R. §§ 73.1560( a)( 1). 11.35( a), 11.52( d) and 17.4( a). 2 AM stations are required to maintain antenna input power levels “as near as is practicable” to, and not less than 90 percent or more than 105 percent of, their authorized power level. See 47 C. F. R. §§ 73.1560( a)( 1). Station WJJL’s antenna input power levels exceeded its authorized power limit of 1000 watts by more than 250 percent and its authorized nighttime power limit of 55 watts by more than 900 percent, and thus greatly exceeded the 105 percent limit. 3 Broadcast stations are required to maintain fully operational equipment EAS equipment, capable of monitoring “two EAS sources.” See 47 C. F. R. §§ 11.35( a), 11.52( d). Station WJJL’s equipment was only capable of monitoring one EAS source. 4 Broadcast stations are required to monitor, test, and log such tests of, EAS equipment at regular intervals, and repair and/ or replace defective equipment within 60 days (and to notify the appropriate Field Office if such equipment cannot be repaired or replaced within the 60- day period). See 47 C. F. R. §§ 11.35( a)-( c), 73.1820( a)( 1)( iii). Station WJJL’s logs did not reflect the testing of EAS equipment since July 23, 2002, and did not reflect any failure of such equipment. 1 Federal Communications Commission DA 04- 1760 3 6. With respect to the power and EAS “operating deficiencies,” M. J. Phillips did not dispute the NAL’s findings, but claimed that, at the time of the inspection, the station was short- staffed, was operating with limited management oversight, and thus was unable to monitor the station’s operations. 12 Additionally, M. J. Phillips claimed that, a week prior to the inspection, its transmitter equipment apparently was struck by lightning and rendered inoperable. 13 M. J. Phillips, as licensee, is responsible for monitoring its station’s operations and ensuring compliance with Commission requirements. M. J. Phillips conceded that it was not monitoring its station’s operations, and thus that it was not aware of the EAS and power violations prior to the Buffalo Office’s inspections and actions. We do not find that the circumstances, or M. J. Phillip’s lack of oversight, mitigates or excuses its violations, and thus do not find that cancellation or reduction of the proposed forfeiture amounts is warranted. 14 7. Finally, M. J. Phillips claimed economic hardship, noting that the station has been operating at a loss and that it has filed for bankruptcy protection in February 2003. As the NAL correctly noted, we will consider canceling or reducing a forfeiture on the basis of economic hardship, if supported by financial documentation (i. e., “federal tax returns for the most recent three- year period, financial statements prepared according to generally accepted accounting practices, or some other reliable and objective documentation that accurately reflects the petitioner’s current financial status”). 15 M. J. Phillips did not provide any supporting financial documentation, and thus we have no basis upon which to assess its claim. We note that, in limited circumstances where a licensee or regulate relinquished control over assets, the Commission has cancelled or reduced forfeitures based on bankruptcy filings. 16 However, because it appears that M. J. Phillips has not relinquished control over the station, its bankruptcy filing, 12 M. J. Phillips explained that one of its two owners, both of whom were involved full- time in the station’s day- to-day operations, had surgery three months prior to and was medically incapacitated at the time of the inspection. M. J. Phillips did not explain why the other owner was not monitoring and correcting the station’s violations during that time period. 13 In support, M. J. Phillips had attached a September 29, 2002, invoice for repairs from Western Antenna & Tower Service, which indicated that the damage to the transmitter site might have been caused by a lightning strike. In this connection, we note that M. J. Phillips undertook corrective measures after the Buffalo Office’s inspection. The Commission expects violations that are observed during inspection, and/ or are the subject of an enforcement action, to be corrected, but does not believe that such corrective measures mitigate past violations. See AT& T Wireless Services, Inc., 17 FCC Rcd 21866, 21875 ¶ 26 (finding that all Commission licensees and regulatees are “expected to promptly take corrective action when violations are brought to their attention,” and that such corrective action does not warrant reduction or cancellation of a forfeiture for past violations); see also Seawest Yacht Brokers, 9 FCC Rcd at 6099, 6099 ¶ 7 (1994); TCI Cablevision of Maryland, Inc., 7 FCC Rcd 6013, 6014 ¶ 8 (1992); Sonderling Broadcasting Corp., 69 FCC 2d 289, 291 (1978); South Central Communications Corp., 18 FCC Rcd 700, 702- 03 ¶ 9 (Enf. Bur. 2003). 14 See Southern California Broadcating Co., 6 FCC Rcd 4387, 4387 ¶ 3 (1991) (stating that “inadvertence . . . is at best ignorance of the law,” and thus is not mitigating circumstance that warrants reduction or cancellation of a forfeiture); see also Suburban Cellular, L. L. C., 14 FCC Rcd 13099, 13100 ¶ 5 (WTB 1999). 15 NAL at ¶ 13. 16 See Dennis Elam, Trustee for Bakcor Broadcasting, Inc., Debtor, 11 FCC Rcd 1137, 1137 ¶ 5 (1996); Interstate Savings, Inc. d/ b/ a/ ISI Communications, 12 FCC Rcd 2934, 2936 ¶ 5 (CCB 1997) 3 Federal Communications Commission DA 04- 1760 4 alone, does not preclude the imposition of forfeitures, 17 and does not warrant reduction or cancellation of the proposed forfeiture. 18 IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that, pursuant to Sections 503( a) and (b) of the Act, 19 and Sections 0.111, 0.311 and 1.80( f)( 4) of the Rules, 20 M. J. Phillips Communications, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of ten thousand dollars ($ 10,000) for its willful and repeated violations 21 of Sections 73.1560( a)( 1), 73.11.35( a), 11.52( d) and 17.4( a) of the Rules. For collection, the Commission will file a proof of claim at the appropriate time in M. J. Phillip’s bankruptcy action. 22 9. IT IS FURTHER ORDERED that, pursuant to Section 308( b) of the Act, 23 M. J. Phillips Communications, Inc., must submit the affidavit described in paragraph 5 above, within 30 days from the releases of this Order, to: Federal Communications Commission, Enforcement Division, 445 12 th Street, S. W., Room 7- C802, Washington, D. C. 20554, Attention: Ava Holly Berland. 10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First Class and Certified Mail Return Receipt Requested to M. J. Phillips Communications, Inc., 1224 Main Street, Niagra Falls, New York, and its attorney, James R. Cooke, Harris Beach, L. L. P., 1776 K Street, N. W., Suite 300, Washington, D. C. 20006. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau 17 See 11 U. S. C. § 362( b); see also United States v. Commonwealth Companies, Inc., 913 F. 2d 518, 522- 26 (8 th Cir. 1990) (excepting from bankruptcy imposed stays, suits by government to obtain monetary judgment for past violations of the law); Coleman Enterprises, Inc., 15 FCC Rcd 24385, 24389 notes 27- 28 (2000), recon. denied, 16 FCC Rcd 10016 (2001) (noting that a bankruptcy filing does not preclude the Commission from assessing forfeitures for violations of the Act and Rules). 18 See Pinnacle Towers, Inc., 18 FCC Rcd 16365, 16366- 67 ¶ 7 (Enf. Bur. 2003); Adelphi Communications, 18 FCC Rcd 7652, 7654 ¶ 8 (Enf. Bur. 2003); Friendship Cable of Texas, Inc., 17 FCC Rcd 8571, 8572- 73 ¶ 9 (Enf. Bur. 2002). 19 47 U. S. C. §§ 503( a) and (b). 20 47 C. F. R. §§ 0.111, 0.311, 1.80( f)( 4). 21 See 47 U. S. C. § 312( f)( 1),( 2); see also Southern California Broadcasting Co., 6 FCC Rcd 4387, 4387- 88 ¶ 5 (1991). 22 See Commonwealth, 913 F. 2d at 523 note 15Coleman Enterprises, Inc., 15 FCC Rcd at 24390; see also note 19, supra. 23 47 U. S. C. § 308( b). 4