**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                  | * | File Number: EB-08-OR-0013     |
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| Perihelion Global, Inc.           | ) | NAL/Acct. No. 200832620005     |
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| Licensee of WTKN-AM               | * | FRN: 0016367518                |
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| Corinth, Mississippi              | * |                                |
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| Facility ID \# 31411              | ) |                                |
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+-----------------------------------+---+--------------------------------+

## FORFEITURE ORDER

**Adopted:** November 21, 2008 **Released:** November 25, 2008

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 fifteen thousand dollars (\$15,000) to
    Perihelion Global, Inc. ("Perihelion"), licensee of station WTKN-AM,
    in Corinth**,** Mississippi, for willful and repeated violation of
    Sections 73.49, 73.1125(a) and 73.1201(a)(2) of the Commission\'s
    Rules ("Rules") .[^1] The noted violations involve Perihelion's
    failure to enclose its antenna structure within an effective locked
    fence or other enclosure, failure to maintain a main studio, and
    failure to transmit the station identification.

    **II. BACKGROUND**

2.  On February 6, 2008, the Commission's New Orleans Office of the
    Enforcement Bureau ("New Orleans Office") received a complaint
    concerning station WTKN-AM, alleging multiple violations, including
    having no main studio. On February 8 and 11, 2008, an agent from the
    New Orleans Office called Perihelion and left messages to be
    contacted to schedule an inspection, but the agent's calls were
    never returned.

3.  On February 25, 2008, an agent from the New Orleans Office monitored
    WTKN-AM from 7 PM-CST to 9 PM-CST. During this time, the station did
    not air any of the required station identifications.

4.  On February 26, 2008, an agent from the New Orleans Office inspected
    the transmitter site for station WTKN-AM. The agent observed a large
    hole in the locked gate for the protective fence surrounding the
    WTKN-AM antenna structure, which had radio frequency potential at
    its base. This hole allowed easy access to the antenna structure.
    The agent also monitored the station throughout the day, and the
    station did not broadcast any of the required station
    identifications.

5.  Still on February 26, 2008, the agent attempted to locate and
    inspect the main studio for station WTKN-AM. The agent called the
    local number for station WTKN-AM and left messages asking to be
    called back. However, no employee from station WTKN-AM ever returned
    the agent's calls. The agent also contacted the owner of the land on
    which the transmitter is located, but he was unaware of a main
    studio address or a contact phone number for anyone locally employed
    by station WTKN-AM. The only known local address for the station was
    that of the transmitter site. The agent observed a small building in
    the same pasture as the antenna structure located within the antenna
    structure's protective fence. However, this building was not staffed
    by any employees and was accessible only through the hole in the
    antenna structure's protective fence. The transmitter site and
    building were not visible from the main road, there were no signs
    for the station on the building, fence, or main road, and there was
    no path from the private driveway to the building.

6.  On February 26, 2008, the attorney for station WTKN-AM requested to
    modify a previously submitted Special Temporary Authority ("STA")
    request. The attorney sought permission for station WTKN-AM to
    operate without a main studio. In this communication, the attorney
    stated the main studio for WTKN-AM is located at the transmitter
    site and that weather had rendered the access path to the main
    studio impassable a majority of the time.

7.  On February 27, 2008, the agent from the New Orleans Office visited
    the transmitter site again. The agent observed the same hole in the
    locked gate for the protective fence surrounding the antenna
    structure as had been observed the previous day. The agent monitored
    station WTKN-AM from 8:30 AM-CST to 11:15 AM-CST and observed that
    the station did not broadcast the required station identifications.

8.  On February 28, 2008, station WTKN-AM's attorney called the New
    Orleans Office and spoke to the agent that attempted to inspect
    station WTKN-AM. This was the first contact the agent had with
    anyone representing station WTKN-AM.

9.  On May 9, 2008, the New Orleans Office issued a *Notice of Apparent
    Liability for Forfeiture* to Perihelion in the amount of fifteen
    thousand dollars (\$15,000), for the apparent willful and repeated
    violation of Sections 73.49, 73.1125(a) and 73.1201(a)(2) of the
    Rules.[^2] Perihelion submitted a response to the *NAL* requesting
    to pay the forfeiture in six installments.

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III. **DISCUSSION**

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10. The proposed forfeiture amounts in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^3] Section 1.80 of the Rules,[^4] 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) ("*Forfeiture
    Policy Statement*"). In examining Perihelion's 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 other such matters as justice
    may require.[^5]

11. Section 73.49 of the Rules[^6] requires antenna towers having radio
    frequency potential at the base to be enclosed within effective
    locked fences or other enclosures. On February 26 and 27, 2008, an
    agent from the New Orleans Office observed a large hole in the gate
    of the locked fence surrounding the antenna structure for station
    WTKN-AM. This hole was large enough to provide easy access to the
    antenna structure. The antenna structure had radio frequency
    potential at its base.

12. Section 73.1125(a) of the Rules requires broadcast stations to
    maintain a main studio.[^7] "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."[^8] The
    Commission has defined a minimally acceptable "meaningful presence"
    as full-time managerial and full-time staff personnel.[^9] On
    February 26, 2008, an agent from the New Orleans Office attempted to
    inspect station WTKN-AM's main studio, but was unable to locate the
    main studio or contact any employees for the station. The agent
    subsequently learned that the station's main studio was located at
    the transmitter site. However, the only building at the transmitter
    site was unstaffed during normal business hours, so the agent was
    unable to determine whether it was equipped with the required
    production and transmission facilities. The agent was unable to find
    any evidence that station WTKN-AM employed any local staff in the
    area. The building was also inaccessible to the public, because it
    was located in a pasture and was not visible from the road. There
    were no signs on the building or the road that would identify the
    building as the main studio, and there was no path going from the
    private driveway to the building. Finally, the building was located
    within the station's locked antenna structure fence and was only
    accessible via the hole in the fence. The attorney for the station
    stated that the main studio was inaccessible to the public a
    majority of the time due to weather conditions.

13. Section 73.1201(a)(2) of the Rules[^10] requires broadcast station
    identification announcements to be made hourly, as close to the hour
    as feasible, at a natural break in program offerings. An agent from
    the New Orleans Office monitored station WTKN-AM on February 25, 26,
    and 27, 2008 for several hours. Station WTKN-AM did not give station
    identifications at any time while the agent was monitoring.

14. In response to the *NAL*, Perihelion states it does not dispute any
    of the findings in the *NAL*. Perihelion adds that it was the victim
    of sabotage to devalue the company and claims someone intentionally
    programmed the computer to remove the station identifications a day
    or two before the initial complaint was filed. This claim, however,
    does not negate the fact that Perihelion broadcast without station
    identification prior to February 6, 2008 and until February
    27, 2008. Perihelion also asserts it will take steps to ensure
    future compliance with the rules. However, post-inspection
    corrective action taken to come into compliance with the Rules is
    expected, and does not nullify or mitigate any prior forfeitures or
    violations.[^11] Therefore, based on the evidence before us, we find
    that Perihelion willfully[^12] and repeatedly[^13] violated Sections
    73.49, 73.1125(a) and 73.1201(a)(2) of the Rules by failing to
    enclose its antenna structure within an effective locked fence or
    other enclosure, failing to maintain a main studio, and failing to
    transmit the station identification.

15. Finally, Perihelion requests to pay the forfeiture in six
    installments. However, Perihelion failed to provide the requested
    documentation and good faith payment for the installment payment
    plan. Accordingly, we can not grant the requested installment
    payment plan at this time.

16. We have examined Perihelion's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that
    Perihelion willfully and repeatedly violated Sections 73.49,
    73.1125(a) and 73.1201(a)(2) of the Rules. We find no basis for
    cancellation or reduction of the \$15,000 forfeiture proposed for
    these violations.

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IV. **ORDERING CLAUSES**

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17. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311 and 1.80(f)(4) of the Commission's Rules, Perihelion Global,
    Inc. **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
    fifteen thousand dollars (\$15,000) for violations of Sections
    73.49, 73.1125(a) and 73.1201(a)(2) of the Rules.[^14]

18. 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.[^15] 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/Account Number and FRN Number referenced above.
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 979088, St. Louis, MO
    63197-9000. Payment by overnight mail may be sent to U.S. Bank --
    Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
    Louis, MO 63101. Payment\[**s**\] by wire transfer may be made to
    ABA Number 021030004, receiving bank TREAS/NYC, and account
    number 27000001. For payment by credit card, an FCC Form 159
    (Remittance Advice) must be submitted.  When completing the FCC Form
    159, enter the NAL/Account number in block number 23A (call
    sign/other ID), and enter the letters "FORF" in block number 24A
    (payment type code). Requests for full payment under an installment
    plan should be sent to:  Chief Financial Officer \-- Financial
    Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 
    20554.   Please contact the Financial Operations Group Help Desk at
    1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
    regarding payment procedures. Perihelion will also send electronic
    notification on the date said payment is made to
    SCR-Response@fcc.gov.

19. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to
    Perihelion Global, Inc. at its address of record and to its counsel,
    Scott C. Cinnamon, 1250 Connecticut Ave. NW, Washington, DC 20036.

    FEDERAL COMMUNICATIONS COMMISSION

    Dennis P. Carlton

    Regional Director, South Central Region

    Enforcement Bureau

[^1]: 47 C.F.R. §§ 73.49, 73.1125(a), 73.1201(a)(2).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200832620005 (Enf. Bur., New Orleans Office, May 9, 2008) ("*NAL*").

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(E).

[^6]: 47 C.F.R. § 73.49.

[^7]: 47 C.F.R. § 73.1125(a).

[^8]: *Main Studio and Program Origination Rules*, Memorandum Opinion
    and Order, 3 FCC Rcd 5024, 5026 (1988).

[^9]: *Jones Eastern of the Outer Banks, Inc.*, Memorandum Opinion and
    Order, 6 FCC Rcd 3615, 3616 (1991), *clarified* 7 FCC Rcd 6800
    (1992).

[^10]: 47 C.F.R. § 73.1201(a)(2).

[^11]: *See Seawest Yacht Brokers*, Forfeiture Order, 9 FCC Rcd 6099
    (1994).

[^12]: 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 ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd
    4387 (1991).

[^13]: 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. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^14]: 47 U.S.C. § 503(b); 47 C.F.R. §§§ 0.111, 0.311, 1.80(f)(4),
    73.49, 73.1125(a), 73.1201(a)(2).

[^15]: 47 U.S.C. § 504(a).