**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  | File No. EB-02-DL-679        |
|                                  | *) |                              |
| East Texas Broadcasting, Inc.    | ** | NAL/Acct. No. 200332500002   |
|                                  |    |                              |
| Licensee of Station KPLT(AM) and | *  | FRN: 0005-0139-41            |
|                                  | *) |                              |
| Owner of Antenna Structure No.   | ** |                              |
| 1236893                          |    |                              |
|                                  | *  |                              |
| in Paris, Texas                  | *) |                              |
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| Mount Pleasant, Texas            |    |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
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+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: November 10, 2004 Released: November 16, 2004**

By the Assistant Chief, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of eight thousand dollars (\$8,000) to East
    Texas Broadcasting, Inc., ("East Texas"), the licensee of KPLT(AM),
    and owner of Antenna Structure Registration ("ASR") No. 1236893 in
    Paris, Texas, for willful and repeated violation of Section 17.4(a)
    of the Commission's Rules ("Rules") and willful violation of Section
    73.49 of the Rules.[^1] The noted violations involve East Texas'
    failure to register its antenna structure for radio station KPLT and
    its failure to enclose its antenna tower within an effective locked
    fence.

2.  On March 4, 2003, the Commission's Dallas, Texas District Office
    ("Dallas Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to East Texas for a forfeiture in the amount
    of ten thousand dollars (\$10,000).[^2] East Texas filed a response
    to the *NAL* on April 3, 2003.

# BACKGROUND

3.  On November 4, 2002, an agent from the Dallas Office inspected East
    Texas's antenna structure located in Paris, Texas. The agent
    determined that the structure was used by AM Station KPLT, and had
    radio frequency ("RF") potential at the base of the tower. During
    the inspection, the agent found the gate to the tower base fence
    unlocked. The station manager arrived after several minutes and
    secured the gate. In addition, a sign at the base of the tower
    structure displayed ASR number 1053395. The Commission's records
    indicated that ASR number 1053395 had been purged from the database
    with the notation "Aged Return Deletion." The KPLT station manager
    informed the Dallas Office agent that KPLT had purchased the station
    one year previously.

4.  On November 14, 2002, the Dallas Office received information from
    East Texas indicating that the previous owner of the tower had tried
    and failed to properly register the tower. The registration failure
    was due to the previous owner's failure to provide correct
    coordinates for the tower. On December 2, 2002, East Texas
    successfully registered the tower with the Commission's automatic
    tower registration system using the same incorrect data with which
    the previous owner used in its failed registration attempts.[^3]
    East Texas has owned the subject tower since August 2001.

5.  On March 4, 2003, the Dallas Office issued a NAL to East Texas for
    ten thousand dollars (\$10,000) for apparent willful and repeated
    violation of Section 17.4(a) of the Rules and apparent willful
    violation of Section 73.49 of the Rules. East Texas responded to the
    NAL pointing out its history of compliance with the Rules, and its
    prompt remedial efforts to correct the violations. It states that it
    believed the tower was registered because when it acquired the
    tower, "it had been represented to it that the prior licensee was in
    compliance with all" of the Rules. East Texas relied upon that
    representation, which was compounded by the existence of a sign at
    the base of the structure displaying ASR number 1053395.

6.  East Texas also states that it has participated in the Alternative
    Broadcast Inspection Program ("ABIP") for several of its other
    stations and has devoted substantial time and resources to prepare
    Station KPLT for that program. In support of its argument that it
    has been diligent in serving its customers and complying with the
    Rules, East Texas supplies a lengthy list of improvements and
    modifications it has made to KPLT since it acquired the station,
    including replacing the transmitter, repairing the transmitter
    building and replacing its roof, installing upgraded electrical
    system and air conditioning, and replacing all wiring on the tower
    lights.

7.  East Texas suggests that the forfeiture is not warranted, given its
    overall participation in ABIP, its history of compliance, and the
    substantial station improvements it has made to Station KPLT. At a
    minimum, it argues, the forfeiture should be reduced by the sum of
    \$3,900, citing *Truth Broadcasting Corporation*[^4] and *NetCom
    Technologies*.[^5] In addition, East Texas argues that we should
    take into account that KPLT is in the small market of Paris, Texas,
    and the Commission has recognized that forfeitures impose a "far
    greater hardship" on a small market station than on others, citing
    *Dominga Barreto Santiago*[^6] and *Canby Telephone
    Association*.[^7]

# discussion

8.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended, ("Act"),[^8] Section 1.80 of the Rules,[^9] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC
    Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999) ("*Policy
    Statement*"). In examining East Texas' response, 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 such other matters as justice may
    require.[^10]

9.  Section 73.49 of the Rules requires broadcast licensees to maintain
    an effective locked fence or other enclosures around the base of an
    antenna tower having radiofrequency potential at the base. The
    Dallas Office agent's observation was that AM Station KPLT has radio
    frequency potential at the base of its antenna tower, thereby
    requiring an effective locked fence or other enclosure. At the time
    of the inspection on November 4, 2002, the KPLT antenna structure
    was not enclosed within an effective locked fence or other enclosure
    as required by Section 73.49. East Texas does not contest that its
    antenna tower was without an effective locked enclosure around the
    base. Accordingly, we conclude that East Texas willfully[^11]
    violated Section 73.49 of the Rules.

10. Section 17.4(a) of the Rules requires that the owner of any proposed
    or existing antenna structure that requires notice of proposed
    construction to the FAA must register the structure with the
    Commission. East Texas owns the tower structure for KPLT, and the
    structure is approximately 92 meters in height, requiring that it be
    registered with the FAA. East Texas believed that the tower was
    registered when it purchased the tower, however, it is well
    established that mistake or inadvertence resulting in a rule
    violation is considered willful.[^12] Moreover, because the
    violation continued for at least a year, it is repeated.[^13]
    Accordingly, we conclude that East Texas willfully and repeatedly
    violated Section 17.4(a) of the Rules.

11. As East Texas acknowledges, remedial action taken to correct the
    violation is not a mitigating factor, and indeed, East Texas did not
    take action prior to the inspection to correct the subject
    violations. East Texas contends, nevertheless, that it deserves
    consideration for the significant improvements it has made to the
    station to bring it into compliance and to maintain compliance with
    the Rules. Station improvements are commendable, but compliance with
    our rules is expected and does not constitute grounds for a
    reduction in the proposed forfeiture.[^14] We conclude, therefore,
    that East Texas is not entitled to a reduction in the forfeiture
    amount for its station improvements.

12. East Texas argues that its participation in ABIP in other stations
    it owns, and its plan to place Station KPLT in the ABIP program,
    deserves consideration. We conclude that these efforts are not
    grounds for a reduction in forfeiture because neither Section 1.80
    of the Rules nor the *Policy Statement* authorizes remediation of a
    forfeiture for these actions.

13. East Texas also argues that it should have a reduction of the
    forfeiture because it operates in a small market. The cases cited in
    support of this position by East Texas, however, illustrate the
    general rule that reduction of a forfeiture for small market status
    is always accompanied by showing of financial hardship and/or
    inability to pay with the required documentation.[^15] East Texas
    provided no documentation showing its inability to pay, and
    accordingly, we find no merit in its request for reduction based on
    small market status.

14. Finally, East Texas argues it has never been cited for a previous
    violation of the Commission's Rules, and citing *Truth Broadcasting
    Corporation*, *supra* and *NetCom Technologies, supra*, seeks a
    reduction in the forfeiture amount on that basis. Our records show
    that East Texas is correct. Accordingly, we find that a reduction of
    \$2000 of the proposed forfeiture is warranted for East Texas'
    history of compliance.

15. A search of the Commission's ASR database reveals that as of the
    adoption date of this *Order*, East Texas still had not corrected
    the registration information for its antenna structure with the
    Commission. Accordingly, we will require, pursuant to Section 308(b)
    of the Act,[^16] that East Texas submit a report to the Enforcement
    Bureau within 30 days of the release date of this *Order*
    demonstrating that it is in compliance with our antenna registration
    Rules as required by Section 17.4(a). East Texas's report must be
    submitted in the form of an affidavit or declaration, under penalty
    of perjury, and signed by an officer or director of the licensee.
    East Texas should note that its continued noncompliance could result
    in additional enforcement action.

16. We have examined East Texas' response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that East
    Texas willfully violated Section 73.49 of the Rules, and that it
    willfully and repeatedly violated Section 17.4 of the Rules, but we
    find that the proposed forfeiture should be reduced to \$8,000 for
    these violations because of its history of compliance.

# ordering clauses

17. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^17]
    East Texas Broadcasting, Inc., licensee of Station KPLT(AM), in
    Paris, Texas, **IS LIABLE FOR A MONETARY FORFEITURE** in the amount
    of eight thousand dollars (\$8,000) for its violation of Sections
    17.4 and 73.49 of the Rules.

18. **IT IS FURTHER ORDERED** that, pursuant to Section 308(b) of the
    Act, East Texas Broadcasting, Inc. must submit the report described
    in paragraph fifteen (15) above no later than thirty (30) days from
    the release date of this *Order* to: Federal Communications
    Commission, Enforcement Bureau, Spectrum Enforcement Division, 445
    12^th^ Street, S.W., Washington, D.C. 20554, Attention: Susan
    Magnotti, Esquire.

19. 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.[^18] Payment of the
    forfeiture must be made by check or similar instrument, payable to
    the order of the Federal Communications Commission. The payment must
    include the NAL/Acct. No. and FRN No. referenced above. Payment by
    check or money order may be mailed to Forfeiture Collection Section,
    Finance Branch, Federal Communications Commission, P.O. Box 73482,
    Chicago, Illinois 60673-7482. Payment by overnight mail may be sent
    to Bank One/LB 73482, 525 West Monroe, 8th Floor Mailroom, Chicago,
    IL 60661. Payment by wire transfer may be made to ABA Number
    071000013, receiving bank Bank One, and account number 1165259.
    Requests for full payment under an installment plan should be sent
    to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^19]

20. IT **IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to East
    Texas Broadcasting, Inc., PO Box 990, Mount Pleasant, Texas 75456,
    and to its counsel Howard J. Barr, Esq., Womble Carlyle Sandridge &
    Rice, Seventh Floor, 1402 Eye Street, N.W., Washington, DC 20005.

FEDERAL COMMUNICATIONS COMMISSION

George R. Dillon

Assistant Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 17.4(a), 73.49.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332500002 (Enf. Bur., Dallas Office, released March 4, 2003).

[^3]: The previous owner's application was reviewed by FCC staff prior
    to ubiquitous public use of the automated tower registration system.
    According to correspondence between the tower's previous owners and
    the Commission, the data provided is in error by more that one
    second. The tower requires a new Federal Aviation Administration
    ("FAA") study and corrected data for the tower registration in the
    Commission's database.

[^4]: 17 FCC Rcd. 24376 (Enf. Bur. 2002).

[^5]: 16 FCC Rcd 9524 (Enf. Bur. 2001).

[^6]: 14 FCC Rcd 6065 (CIB 1999).

[^7]: 5 FCC Rcd 731 (Mobile Services Div. 1990).

[^8]: 47 U.S.C. § 503(b).

[^9]: 47 C.F.R. § 1.80.

[^10]: 47 U.S.C. § 503(b)(2)(D).

[^11]: Section 312(f)(1) of the 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 ...." *Southern California Broadcasting Co.*, 6 FCC Rcd
    4387 (1991).

[^12]: A violation resulting from an inadvertent mistake or a failure to
    become familiar with the FCC\'s requirements is considered a willful
    violation. See *PBJ Communications of Virginia, Inc*., 7 FCC Rcd
    2088 (1992); *Standard Communications Corp.*, 1 FCC Rcd 358 (1986);
    *Triad Broadcasting Co., Inc*., 96 FCC 2d 1235, 1242 (1984).

[^13]: As provided by 47 U.S.C. § 312(f)(2), "\[t\]he term 'repeated',
    when used with reference to the commission or omission of any act,
    means the commission or omission of such act more than once or, if
    such commission or omission is continuous, 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. Rep. 97^th^ Cong. 2d Sess. 51
    (1982). *Southern California Broadcasting Co., supra.*

[^14]: *AT&T Wireless Services, Inc.,* 17 FCC Rcd 7891 (2002),
    *forfeiture ordered,* 17 FCC Rcd 21866, 21875-76 at ¶¶ 26-28 (2002),
    *Seawest Yacht Brokers,* 9 FCC Rcd 6099, 6099 ¶ 7 (1994).

[^15]: *Dominga Barreto Santiago* and *Canby Telephone Association*,
    *supra*.

[^16]: 47 U.S.C. § 308(b).

[^17]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^18]: 47 U.S.C. § 504(a).

[^19]: *See* 47 C.F.R. § 1.1914.