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Mattoon Broadcasting Company

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Released: March 20, 2014

Federal Communications Commission

DA 14-377

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)


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File Numbers: EB-10-CG-0282;
Mattoon Broadcasting Company
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EB-FIELDNER-12-00004396
Licensee of Stations WLBH and WLBH-FM
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NAL/Acct. No.: 201132320002
Mattoon, Illinois
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FRN: 0003773595
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Facility ID Nos. 40702 and 40703
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FORFEITURE ORDER

Adopted:

March 20, 2014

Released:

March 20, 2014
By the Regional Director, Northeast Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of five
hundred dollars ($500) to Mattoon Broadcasting Company (Mattoon Broadcasting), licensee of Stations
WLBH(AM) and WLBH-FM, in Mattoon, Illinois (Stations), for willfully and repeatedly violating Sections
73.49 and 73.1125(a) of the Commission’s rules (Rules).1 Mattoon Broadcasting failed to enclose the AM
Station’s antenna structures within effective locked fences or other enclosures, and failed to maintain a
management and staff presence at the Stations’ main studio.

II.

BACKGROUND

2.
On May 3, 2011, the Enforcement Bureau’s Chicago Office issued a Notice of Apparent
Liability for Forfeiture (NAL)2 in the amount of fourteen thousand dollars ($14,000) to Mattoon
Broadcasting for (1) violating Section 73.49 of the Rules by failing to maintain effective locked fences or
other enclosures around the AM Station’s four antenna structures and (2) violating Section 73.1125(a) of
the Rules for failure to maintain a management and staff presence at the Stations’ co-located main studio.
Specifically, an agent from the Chicago Office found that, on July 21 and 22, 2010, the Stations’ main
studio building was locked and no one answered when the agent rang the doorbell.3 On July 22, 2010, the
agent also conducted an inspection of AM Station WLBH’s antenna structures, which had radio
frequency potential at their bases.4 The agent observed that the fences surrounding each of the antenna
structures had either sections that were falling down or sections that were completely missing.5 In each
case, the state of disrepair allowed unfettered access to the tower and there was no perimeter fence


1 47 C.F.R. §§ 73.49, 73.1125(a).
2Mattoon Broadcasting Company, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 6577 (Enf. Bur. 2011).
A comprehensive recitation of the facts and history of this case can be found in the NAL and is incorporated herein
by reference.
3 NAL, 26 FCC Rcd at 6577.
4 NAL, 26 FCC Rcd at 6577-6578.
5 NAL, 26 FCC Rcd at 6578.

Federal Communications Commission

DA 14-377

surrounding the property on which the antenna structures were located.6 Mattoon Broadcasting responded
to the NAL on June 2, 2011.
3.
In its response to the NAL, Mattoon Broadcasting does not dispute the findings in the
NAL, but requests a reduction or cancellation of the proposed forfeiture claiming that: (1) new fences had
been installed around the antenna structures within two weeks of the agent’s inspection; (2) the General
Manager of Mattoon Broadcasting “spend[s] a substantial amount of time each day at [the] main studio
building. . .[but] was out of town for a few days from July 20-23, 2010,” “medical problems caused the
absence of another staff member,” and two other staff members come and go throughout the day; and (3)
Mattoon Broadcasting is facing financial difficulties and is unable to pay the proposed forfeiture.”7

III.

DISCUSSION

4.
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
Forfeiture Policy Statement.10 In examining Mattoon 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.11 As discussed below, we have considered
Mattoon Broadcasting’s response in light of these statutory factors, and find that a reduction of the
forfeiture is warranted based on Mattoon Broadcasting’s inability to pay.
5.
We affirm the findings in the NAL that Mattoon Broadcasting willfully and repeatedly
violated Section 73.49 of the Rules. Section 73.49 of the Rules requires that antenna structures having radio
frequency potential at the base must be enclosed within effective locked fences or other enclosures.12 On
July 22, 2010, an agent from the Chicago Office observed that the fences surrounding each of the antenna
structures had either sections that were falling down or sections that were completely missing. Based on the
degree of deterioration, agents concluded that the fences had been in disrepair for an extended period of
time, a fact which Mattoon Broadcasting does not dispute. With regard to Mattoon Broadcasting’s repairs
to the fencing after the agent’s inspection, the Commission has long held that corrective action taken to
come into compliance with the Rules is expected, and such corrective action does not nullify or mitigate
prior violations or associated forfeiture liability.13 Thus, based on the totality of the circumstances, we find
that Mattoon Broadcasting willfully and repeatedly violated Section 73.49 of the Rules.


6 Id.
7 Letter from James R. Livesay II, President and General Manager of Mattoon Broadcasting Company, to the
Chicago Office, Northeast Region, Enforcement Bureau at 1-2 (dated June 2, 2011) (on file in EB-10-CG-0282)
(Response).
8 47 U.S.C. § 503(b).
9 47 C.F.R. § 1.80.
10 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).
11 47 U.S.C. § 503(b)(2)(E).
12 47 C.F.R. § 73.49.
13 See Consolidated Radio, Inc., 26 FCC Rcd 15173 (Enf. Bur. 2011) citing International Broadcasting
Corporation
, Order on Review, 25 FCC Rcd 1538 (2010).
2

Federal Communications Commission

DA 14-377

6.
We also affirm the findings in the NAL that Mattoon Broadcasting willfully and repeatedly
violated Section 73.1125(a) of the Rules. Section 73.1125(a) of the Rules requires broadcast stations to
maintain a main studio.14 The Commission has interpreted Section 73.1125 (also known as the “Main
Studio Rule”) to require, among other things, that a licensee maintain a “meaningful management and staff
presence” at its main studio.15 Specifically, the Commission has found that a main studio “must, at a
minimum, maintain full time managerial and full-time staff personnel.”16 Although management personnel
need not be “chained to their desks” during normal business hours, they must “report to work at the main
studio on a daily basis, spend a substantial amount of time there and…use the studio as a ‘home base.’”17
On July 21 and 22, 2010, an agent found, and Mattoon Broadcasting concedes, that no staff or
management were present at the Stations’ main studio during normal business hours. Mattoon
Broadcasting’s unsubstantiated claims that the General Manager as well as several other employees
usually spend a substantial amount of time at the main studio does not change the fact that, on two days,
the agent found no staff or management present at the main studio. Accordingly, we find that Mattoon
Broadcasting willfully and repeatedly violated Section 73.1125(a) of the Rules by failing to maintain a
meaningful presence at the Stations’ main studio.
7.
We grant, however, Mattoon Broadcasting’s request for a reduction based on its inability
to pay. 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.18 Based on the
financial documents provided by Mattoon Broadcasting, we find sufficient basis to reduce the forfeiture
to $500. However, we caution Mattoon Broadcasting that a party’s inability to pay is only one factor in
our forfeiture calculation analysis, and is not dispositive.19 We have previously rejected inability to pay
claims in cases of repeated or otherwise egregious violations.20 Therefore, future violations of this kind


14 47 C.F.R. § 73.1125.
15 Amendment of Section 73.1125 and 73.1130 of the Commission’s Rules, the Main Studio and Program
Origination Rules for Radio and Television Broadcast Stations,
Memorandum Opinion and Order, 3 F.C.C.R. 5024,
5026 (1988), erratum issued, 3 FCC Rcd 5717 (1988) (correcting language in n.29).
16 See Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order, 6 FCC Rcd 3615, 3616 (1991)
(“Jones Eastern”) (noting that, “[t]his is not to say that the same staff person and manager must be assigned full-
time to the main studio. Rather, there must be management and staff presence on a full-time basis during normal
business hours to be considered ‘meaningful.’”) clarified, 7 FCC Rcd 6800 (1992) (“Jones Eastern II”). See also
Birach Broadcasting Corporation,
Notice of Apparent Liability, 25 FCC Rcd 2635 (Enf. Bur. 2010).
17 Jones Eastern II, 7 FCC Rcd at 6802.
18 See 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).
19 See 47 U.S.C. § 503(b)(2)(E) (requiring Commission to 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).
20 Dexter Blake, Memorandum Opinion and Order, 27 FCC Rcd 15087 (Enf. Bur. 2012), aff’d in part, Forfeiture
Order, 25 FCC Rcd 10038 (Enf. Bur., Northeast Region 2010) (reducing forfeiture based on inability to pay, but
warning that future violations of the same kind may not be reduced due to financial circumstances); Kevin W. Bondy,
Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western Region 2011) (holding that violator’s repeated acts of
malicious and intentional interference outweigh evidence concerning his ability to pay) (petition for reconsideration
pending); Hodson Broadcasting Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (holding that
permittee’s continued operation at variance with its construction permit constituted an intentional and continuous
violation, which outweighed permittee’s evidence concerning its ability to pay the proposed forfeitures). See
(continued….)
3

Federal Communications Commission

DA 14-377

may result in significantly higher forfeitures that may not be reduced due to Mattoon Broadcasting’s
financial circumstances.

IV.

ORDERING CLAUSES

8.
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, Mattoon Broadcasting Company

IS LIABLE FOR A MONETARY FORFEITURE

in the
amount of five hundred dollars ($500) for violation of Sections 73.49 and 73.1125(a) of the
Commission’s rules.21
9.
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.22 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.23 Mattoon Broadcasting
Company shall send electronic notification of payment to NER-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.24 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-
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.
10.
Any request for making full payment over time under an installment plan should be sent
to: Chief Financial Officer—Financial Operations, Federal Communications Commission, 445 12th
(Continued from previous page)


Michael W. Perry, Forfeiture Order, 27 FCC Rcd 2281, 2284, para. 8 (2012) (reducing forfeiture based on inability to
pay, but warning that future violations of the same kind may not be reduced due to financial circumstances).
21 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4), 73.49, 73.1125(a).
22 47 C.F.R. § 1.80.
23 47 U.S.C. § 504(a).
24 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
4

Federal Communications Commission

DA 14-377

Street, S.W., Room 1-A625, Washington, D.C. 20554.25 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.
11.

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 Mattoon Broadcasting Company at
P.O. Box 322, Mattoon, Illinois 61938-0322 and 5746 E. Country Road 1000 N, North Route 45,
Mattoon, Illinois, 61938.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director
Northeast Region
Enforcement Bureau


25 See 47 C.F.R. § 1.1914.
5

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