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 Federal  Communications  Commission  DA  04-  1108 
 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  33  55  45  North  ) 
 Latitude  by  085  35  42  West  Longitude,  in  )  FRN  0007-  7794-  32  Piedmont,  Alabama.  ) 
 Piedmont,  Alabama  ) 
 A.  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  Commissions  Rules  (  Rules).  2  The  noted  violations  involve  Piedmonts  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  Commissions  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, 


 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). 
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 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  Commissions 
 Forfeiture  Policy  Statement  and  Amendment  of  Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines  (Forfeiture  Policy  Statement).  7  In  examining  Piedmonts  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  agents  observations  and 
 Piedmonts  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.  Piedmonts  antenna  structure  required  FAA  notification  because  it  exceeded  200  feet  in  height.  12  Based  upon  the  agents  observations,  the  Commissions  ASR  database  records  and  Piedmonts 
 admission,  we  find  that  Piedmont  willfully  and  repeatedly  violated  Section  17.4(  a)  of  the  Commissions  Rules. 


 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). 
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 7.  Piedmont  does  not  challenge  the  Bureaus  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  Piedmonts  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  owners  table  and  cause  the  owners  family  very  great  hardship.  The  Commission  has 
 determined  that,  in  general,  a  licensees  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  Piedmonts  inability  to  pay. 


 9.  We  have  examined  Piedmonts  Petition  for  Reconsideration  pursuant  to  the  statutory  factors  above,  and  in  conjunction  with  the  Commissions  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.  Piedmonts  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  Piedmonts  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  As  of  the  adoption  date  of  this  Order,  a  search  of  the  Commissions  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. 
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 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 


 20  37  U.  S.  C.  504(  a). 
 21  47  C.  F.  R.    1.1914. 
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