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Martin Broadcasting, Inc.

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Released: March 1, 2013

Federal Communications Commission

DA 13-304


Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Martin Broadcasting, Inc.
)
File No.: EB-11-HU-0052
)

NAL/Acct. No.: 201232540004
Owner of Antenna Structure No. 1060813
)
FRN: 0003768603
Beaumont, Texas
)
)

FORFEITURE ORDER

Adopted:

March 1, 2013

Released:

March 1, 2013
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 eight
thousand dollars ($8,000) to Martin Broadcasting, Inc. (Martin Broadcasting), owner of antenna structure
number 1060813 (the Antenna Structure), located in Beaumont, Texas, for the willful and repeated
violations of Section 303(q) of the Communications Act of 1934, as amended (Act), and Sections 17.47(a)
and 17.51(a) of the Commission’s rules (Rules).1 The noted violations involved Martin Broadcasting’s
failure to (1) exhibit red obstruction lighting from sunset until sunrise, and (2) monitor the Antenna
Structure lighting on a daily basis.

II.

BACKGROUND

2.
On June 5, 2012, the Enforcement Bureau’s Houston Office (Houston Office) issued a
Notice of Apparent Liability for Forfeiture and Order (NAL) 2 to Martin Broadcasting for antenna structure
lighting and monitoring violations. In response to the NAL, Martin Broadcasting does not contest the
violations, but nonetheless urges cancellation or reduction of the proposed $10,000 forfeiture, asserting
that it has not been cited for any violations since it obtained the Antenna Structure nearly 20 years ago
and that its “financial conditions . . . raise the issue of its ability to pay the forfeiture proposed.”3 Martin
Broadcasting also certified that the lighting on the Antenna Structure was restored on January 5, 2012,
and that it is monitoring the structure’s lighting as required.4



1 47 U.S.C. § 303(q); 47 C.F.R. §§ 17.47(a), 17.51(a).
2 Martin Broadcasting, Inc., Notice of Apparent Liability for Forfeiture and Order, 27 FCC Rcd 6017 (Enf. Bur.
2012). A comprehensive recitation of the facts and history of this case can be found in the NAL and is incorporated
herein by reference.
3 Letter from Barry A. Friedman, Counsel for Martin Broadcasting, Inc., to the Houston Office, South Central
Region, Enforcement Bureau, at 1-2 (July 11, 2012) (on file in EB-11-HU-0052) (NAL Response).
4 Id. at 1. See also Letter from Barry A. Friedman, Counsel for Martin Broadcasting, Inc., to the Houston Office,
South Central Region, Enforcement Bureau (June 28, 2012) (on file in EB-11-HU-0052).

Federal Communications Commission

DA 13-304

III.

DISCUSSION

3.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Act,5 Section 1.80 of the Rules,6 and the Forfeiture Policy Statement.7 In examining Martin
Broadcasting’s response, Section 503(b)(2)(E) 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.8
As discussed below, we have considered Martin Broadcasting’s response in light of these statutory
factors, and find that a reduction of the forfeiture is warranted based solely on its history of compliance
with the Rules.
4.
First, we affirm the NAL’s uncontested finding that Martin Broadcasting violated Section
303(q) of the Act, and Sections 17.47(a) and 17.51(a) of the Rules.9 Section 303(q) of the Act states that
antenna structure owners shall maintain the painting and lighting of antenna structures as prescribed by
the Commission.10 Section 17.51(a) of the Rules states that “[a]ll red obstruction lighting shall be
exhibited from sunset until sunrise unless otherwise specified.”11 Section 17.47(a) of the Rules states that
owners of antenna structures “(1) shall make an observation of the antenna structure’s lights at least once
each 24 hours either visually . . . to insure that all such lights are functioning properly as required; or
alternatively (2) shall provide and properly maintain an automatic alarm system designed to detect any
failure of such lights and to provide indication of such failure to the owner. . . .”12 As reflected in the
NAL, an agent from the Houston Office observed that the top and midpoint red obstruction lights and the ¾
side lights on the Antenna Structure were extinguished after sunset on November 28 and 29, 2011. Martin
Broadcasting also admitted that it was not observing the Antenna Structure’s lights once every 24 hours and
had no automatic alarm system. Based on the evidence before us, we conclude that Martin Broadcasting
willfully and repeatedly violated Section 303(q) of the Act and Sections 17.47(a) and 17.51(a) of the Rules
by failing to (1) exhibit red obstruction lighting on the Antenna Structure from sunset until sunrise, and (2)
monitor the Antenna Structure’s lights as required.
5.
Martin Broadcasting nonetheless requests cancellation or reduction of the $10,000
forfeiture based on its history of compliance with the Rules and its inability to pay. After reviewing the
Commission’s records, we find that reduction of the forfeiture based on Martin Broadcasting’s history of
compliance with the Commission’s rules is warranted and reduce the forfeiture by $2,000. With regard to
an individual or entity’s inability to pay claim, the Commission has determined that, in general, gross
revenues are the best indicator of an ability to pay a forfeiture.13 As Martin Broadcasting notes, the
Commission has in a few limited cases looked to other factors, including profits and losses, to determine


5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines
, Report and Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
8 47 U.S.C. § 503(b)(2)(E).
9 See NAL, supra note 2.
10 47 U.S.C. § 303(q).
11 47 C.F.R. § 17.51(a).
12 47 C.F.R. § 17.47(a).
13 See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd 2088, 2089 (1992) (forfeiture not
deemed excessive where it represented approximately 2.02 percent of the violator’s gross revenues); Local Long
Distance, Inc.,
Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator’s gross revenues); Hoosier Broadcasting Corporation, Forfeiture Order,
15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it represented approximately 7.6 percent of the
violator’s gross revenues).
2

Federal Communications Commission

DA 13-304

ability to pay.14 Those cases, however, involved licensees in severe financial distress. Although it states
it “has either sustained an operating loss or had no taxable income” over the past three years,15 Martin
Broadcasting has failed to demonstrate that it is experiencing a comparable level of financial distress or
that it otherwise should qualify for an exception to our gross revenues policy. For example, unlike First
Greenville
, Martin Broadcasting has not indicated that its owners have personally funded its losses,
loaned it significant funds, and received no income from it.16 Moreover, unlike Rish, Martin Broadcasting
services a city with a population of 118,296.17 Based on the financial documents provided by Martin
Broadcasting, we thus conclude its gross revenues are sufficient to support the forfeiture and decline to
reduce on inability to pay on these grounds.18

IV.

ORDERING CLAUSES

6.
Accordingly,

IT IS ORDERED

that, pursuant to Section 503(b) of the Communications
Act of 1934, as amended, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80(f)(4) of the Commission’s
rules, Martin Broadcasting, Inc.

IS LIABLE FOR A MONETARY FORFEITURE

in the amount of
eight thousand dollars ($8,000) for violations of Section 303(q) of the Act and Sections 17.47(a) and
17.51(a) of the Commission’s rules.19
7.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
Rules within thirty (30) calendar days after the release date of this Forfeiture Order.20 If the forfeiture is
not paid within the period specified, the case may be referred to the U.S. Department of Justice for
enforcement of the forfeiture pursuant to Section 504(a) of the Act.21 Martin Broadcasting, Inc. shall send
electronic notification of payment to SCR-Response@fcc.gov on the date said payment is made.
The payment must be made by check or similar instrument, wire transfer, or credit card, and must include
the NAL/Account number and FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.22 When completing the FCC Form 159, enter the
Account Number in block number 23A (call sign/other ID) and enter the letters “FORF” in block number
24A (payment type code). Below are additional instructions you should follow based on the form of
payment you select:
Ÿ
Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-


14 See, e.g., First Greenville Corporation, Memorandum Opinion and Order and Forfeiture Order, 11 FCC Rcd 7399
(1996) (First Greenville), Benito Rish, Memorandum Opinion and Order, 10 FCC Rcd 2861 (1995) (Rish).
15 NAL Response at 2.
16 Cf. First Greenville, 11 FCC Rcd at 7403 (considered that the station’s losses exceeded its income and that the
sole shareholder funded those losses and received no income from the station when reducing proposed forfeiture).
17 According to the 2010 Census, Beaumont City, Texas has a population of 118, 296.
http://2010.census.gov/2010census/popmap/ipmtext.php?fl=48 (last visited Aug. 10, 2012). Cf. Rish, 10 FCC Rcd
at 2862 (considered the station’s unprofitable history and the fact that it was a directional daytime-only AM station
serving a small community of license with a population of 425 when reducing proposed forfeiture).
18 The $10,000 forfeiture falls within the percentage range that the Commission has previously found acceptable.
The $2,000 reduction based on history of compliance with the Rules also reduces the financial penalty imposed
against Martin Broadcasting.
19 47 U.S.C. §§ 303(q), 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4), 17.47(a), 17.51(a).
20 47 C.F.R. § 1.80.
21 47 U.S.C. § 504(a).
22 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
3

Federal Communications Commission

DA 13-304

9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-
GL, 1005 Convention Plaza, St. Louis, MO 63101.
Ÿ
Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank
at (314) 418-4232 on the same business day the wire transfer is initiated.
Ÿ
Payment by credit card must be made by providing the required credit card information on
FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment.
The completed Form 159 must then be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank –
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101.
8.
Any request for full payment under an installment plan should be sent to: Chief Financial
Officer—Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-
A625, Washington, D.C. 20554.23 If you have questions regarding payment procedures, please contact
the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
9.

IT IS FURTHER ORDERED

that a copy of this Forfeiture Order shall be sent by both
First Class Mail and Certified Mail, Return Receipt Requested, to Martin Broadcasting, Inc. at P.O. Box
419, Baytown, Texas 77522-0419, and to its counsel, Barry A. Friedman at Thompson Hine LLP, 1919 M
Street, N.W., Suite 700, Washington, DC 20036-1600.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau


23 See 47 C.F.R. § 1.1914.
4

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