**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Piedmont Radio Co. ) File No. EB-02-AT-317

Licensee of AM Radio Station WPID, Piedmont, )

Alabama, and Owner of Unregistered Antenna ) NAL/Acct. No. 200332480006

Structure At or Near Coordinates 33º 55' 45" North )

Latitude by 085º35' 42" West Longitude, in ) FRN 0007-7794-32

Piedmont, Alabama. )

Piedmont, Alabama )

## MEMORANDUM OPINION AND ORDER 

**Adopted: April 26, 2004 Released: April 28, 2004**

By the Chief, Enforcement Bureau:

> **I. INTRODUCTION**

1.  In this *Memorandum Opinion and Order* ("*Order*"), we grant in part
    and deny in part the Petition for Reconsideration filed by Piedmont
    Radio Co. ("Piedmont"), licensee of radio station WPID(AM),
    Piedmont, Alabama. Piedmont seeks reconsideration of the *Forfeiture
    Order*[^1] in which the Chief, Enforcement Bureau ("Bureau"), found
    it liable for a monetary forfeiture in the amount of ten thousand
    dollars (\$10,000) for willful and repeated violation of Sections
    73.1125(a) and 17.4(a) of the Commission's Rules ("Rules").[^2] The
    noted violations involve Piedmont's willful and repeated failure to
    maintain a presence at its main studio during normal business hours
    and register its antenna structure. For the reasons discussed below,
    we reduce the forfeiture amount from \$10,000 to \$3,000.

    **II. BACKGROUND**

2.  On June 26, 2002, an agent from the Commission's Atlanta, Georgia
    Field Office ("Atlanta Office") attempted to inspect station
    WPID(AM)'s main studio; however, the agent was unable to gain access
    to the studio. On July 16 and August 21, 2002, the agent telephoned
    station WPID(AM) but received no answer. On August 26, 2002, the
    agent contacted WPID(AM)'s owner, who confirmed that the studio had
    been unstaffed. On June 26, 2002, the agent also inspected the
    antenna structure, which did not display an Antenna Structure
    Registration ("ASR") number. The agent subsequently checked the ASR
    data base and determined that the structure was unregistered.

3.  On October 15, 2002, the District Director of the Atlanta Office
    issued a *Notice of Apparent Liability for Forfeiture* (*"NAL"*)[^3]
    in the amount of ten thousand dollars (\$10,000) to Piedmont for
    willful and repeated violation of Sections 73.1125(a) and 17.4(a) of
    the Rules. Having no record of a response, on February 6, 2003, the
    Bureau released the *Forfeiture Order*, affirming the *NAL*. On
    March 10, 2003, Piedmont filed a petition for reconsideration of the
    *Forfeiture Order*. In its petition for reconsideration, Piedmont
    does not contest the violations, but does challenge the finding that
    no response was submitted, presenting evidence that a response was
    mailed by Certified Mail, Return Receipt Requested and received by
    the Commission on November 12, 2002.[^4] Piedmont also submits the
    tax returns for 1999, 2000 and 2001, of its principal in support of
    its claim of an inability to pay.

**III. DISCUSSION**

4.  The forfeiture amount in this case was assessed in accordance with
    Section 503(b) of the Communications Act of 1934, as amended
    ("Act"), [^5] Section 1.80 of the Rules,[^6] and *The Commission's
    Forfeiture Policy Statement and Amendment of Section 1.80 of the
    Rules to Incorporate the Forfeiture Guidelines* (*Forfeiture Policy
    Statement*).[^7] In examining Piedmont'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 any such other matters as justice may
    require.[^8]

5.  Section 73.1125(a) of the Rules requires a broadcast station to
    maintain a main studio and a presence at its main studio during
    normal business hours.[^9] Based on the agent's observations and
    Piedmont's admission that it did not maintain such a presence, we
    find that Piedmont willfully[^10] and repeatedly[^11] violated
    Section 73.1125(a) of the Rules.

6.  Section 17.4(a) of the Rules provides that the owner of an antenna
    structure that required notice to the Federal Aviation
    Administration ("FAA") must register the antenna structure with the
    Commission. Piedmont's antenna structure required FAA notification
    because it exceeded 200 feet in height.[^12] Based upon the agent's
    observations, the Commission's ASR database records and Piedmont's
    admission, we find that Piedmont willfully and repeatedly violated
    Section 17.4(a) of the Commission's Rules.

7.  Piedmont does not challenge the Bureau's finding that it violated
    Sections 73.1125(a) and 17.4(a) of the Rules. Nevertheless, Piedmont
    seeks cancellation of the forfeiture. In support of its request for
    cancellation, Piedmont states that it now has full-time main studio
    staffing during normal business hours and that it has initiated
    efforts to obtain FAA clearance and to register the tower with the
    Commission.[^13] No mitigation is warranted on the basis of
    Piedmont's post *NAL* corrective efforts. As the Commission stated
    in *Seawest Yacht Brokers*, 9 FCC Rcd 6099, 6099 (1994), "corrective
    action taken to come into compliance with Commission rules or policy
    is expected, and does not nullify or mitigate any prior forfeitures
    or violations." [^14]

8.  Finally, Piedmont asserts that payment of the forfeiture will be a
    hardship that will "take bread off the owner's table" and cause the
    owner's family very great hardship. The Commission has determined
    that, in general, a licensee's gross revenues are the best indicator
    of its ability to pay a forfeiture.[^15] We have reviewed the
    financial information provided, and we find that this information
    provides a basis for reduction of the forfeiture from the ten
    thousand dollars (\$10,000) imposed by the *Forfeiture Order* to
    three thousand dollars (\$3,000) on the basis of Piedmont's
    inability to pay.

9.  We have examined Piedmont's Petition for Reconsideration pursuant to
    the statutory factors above, and in conjunction with the
    Commission's *Forfeiture Policy Statement* as well. As a result of
    our review, we conclude that Piedmont willfully and repeatedly
    violated Sections 73.1125(a) and 17.4(a) of the Rules and find that,
    although cancellation of the monetary forfeiture is not warranted,
    reduction of the forfeiture amount to \$3,000 is appropriate.

10. Because Piedmont has yet to register its tower,[^16] we will
    require, pursuant to Section 308(b) of the Act,[^17] that Piedmont
    report to the Enforcement Bureau within thirty (30) days of the
    release of this *Order* whether it has achieved compliance with
    Section 17.4(a) of the Rules. Piedmont's report must be submitted in
    the form of an affidavit signed by an officer or director of the
    licensee. If Piedmont fails to submit such a report or we find that
    Piedmont has not come into compliance with Section 17.51(b), we will
    consider further appropriate enforcement action.

> **IV. ORDERING CLAUSES**

11. Accordingly, **IT IS ORDERED** that, pursuant to Section 405 of the
    Act[^18] and Section 1.106 of the Rules,[^19] Piedmont's petition
    for reconsideration of the February 26, 2003, *Forfeiture Order*
    **IS GRANTED** to the extent that the monetary forfeiture amount
    **IS** **REDUCED** to three thousand dollars (\$3,000) and **IS**
    **DENIED** in all other aspects.

12. **IT IS ALSO ORDERED** that, pursuant Section 308(b) of the Act,
    Piedmont must submit the report described in Paragraph 10, above,
    within 30 days from the release of this *Order*, to: Federal
    Communications Commission, Enforcement Bureau, Spectrum Enforcement
    Division, 445 12th Street, S.W., Room 7-A 820, Washington, D.C.
    20554, Attention: Peter Waltonen, Esquire.

13. 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.[^20] Payment shall be made by
    mailing a check or similar instrument, payable to the order of the
    "Federal Communications Commission," to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673 -- 7482. The
    payment should note NAL/Acct. No.200332480006, and FRN
    0007--7794--32. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Operations Group,
    445 12^th^ Street, S.W., Washington, D.C. 20554[^21]

14. **IT IS FURTHER ORDERED THAT** a copy of his *Order* shall be sent
    by first class mail and certified mail, return receipt requested, to
    Piedmont Radio Co., P.O. Box 227, Piedmont, Al 36277 and to its
    counsel, Lewis H. Goldman, Esq., 45 Dudley Court, Bethesda, Maryland
    20814.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: *Piedmont Radio Co*., 18 FCC Rcd 1033 (Enf. Bur. 2003).

[^2]: 47 C.F.R. §§ 73.1125(a) and 17.4.

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200332480006 (Enf. Bur., Atlanta Office, released October 15, 2002).

[^4]: The Bureau has no record of receiving the response. However, the
    Commission has determined that consideration of a previously
    unconsidered pleading within a reconsideration proceeding is
    appropriate where all the allegations are fully reviewed and
    addressed prior to a determination in the reconsideration. *See
    California Metro Mobile Communications, Inc*, 17 FCC Rcd 22,974,
    22976, ¶ 10 (2002). *See also* *Eagle Radio, Inc*., 12 FCC Rcd 5105
    ¶ 2 (1997).

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 12 FCC Rcd. 17087 (1997), *recon. denied*, 15 FCC Rcd. 303 (1999).

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: To fulfill the function, a station must equip the main studio with
    production and transmission facilities that meet applicable
    standards, maintain continuous program transmission capability, and
    maintain a meaningful management and staff presence. *See* *Main
    Studio and Program Origination Rules*, 3 FCC Rcd 5024 (1988).

[^10]: Section 312(f) of the Communications Act of 1934, as amended,
    ("Act"), 47 U.S.C. § 312(f)(1), which applies to violations for
    which forfeitures are assessed under Section 503(b) of the Act,
    provides that "\[t\]he term 'willful,' ... means the conscious and
    deliberate commission or omission of such act, irrespective of any
    intent to violate any provision of this Act or any rule or
    regulation of the Commission authorized by this Act ..." *See*
    *Southern California Broadcasting Co.,* 6 FCC Rcd 4387 (1991).

[^11]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The Conference
    Report for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. See H.R. 97^th^ Cong. 2d Sess. 51 (1982). *See* *Southern
    California Broadcasting Company,* 6 FCC Rcd 4387, 4388 (1991).

[^12]: 47 C.F.R. § 17.7(a).

[^13]: As of the adoption date of this *Order*, a search of the
    Commission's ASR Data Base reveals the tower remains unregistered.

[^14]: *See also AT&T Wireless Services, Inc.*, 17 FCC Rcd 21866, 21871
    (2002).

[^15]: *PJB Communications of Virginia, Inc.,* 7 FCC Rcd 2088, 2089
    (1992).

[^16]: *See* note 13, *supra.*

[^17]: 47 U.S.C. § 308(b)

[^18]: 47 U.S.C. § 405.

[^19]: 47 C.F.R. § 1.106.

[^20]: 37 U.S.C. §504(a).

[^21]: 47 C.F.R. § 1.1914.