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$12K NAL to Birach Broad. for Tower Fencing Violations

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Released: June 26, 2014
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Federal Communications Commission

DA 14-885

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Birach Broadcasting Corporation

)

File No.: EB-FIELDNER-13-00010859

)

Owner of Antenna Structure Numbers

)

NAL/Acct. No.: 201432400009

1222688 and 1222689

)

FRN: 0003766847

Licensee of Station WWCS

)

Facility ID No.: 5349

Canonsburg, Pennsylvania

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

Adopted: June 26, 2014

Released:

June 26, 2014

By the District Director, Philadelphia Office, Northeast Region, Enforcement Bureau:

I.

INTRODUCTION

1.

We propose a penalty of $12,000 against Birach Broadcasting Corporation (Birach

Broadcasting) for apparently failing to enclose AM Station WWCS’s two antenna structures in Canonsburg,

Pennsylvania, within effective locked fences. Although Birach Broadcasting was aware that the fences were

in a state of disrepair, it failed to confirm that repairs were completed, which resulted in unrestricted public

access to the antenna structures for an extended period of time. The damaged fences presented a particular

public safety concern because the antenna structures were located in a residential neighborhood. The

Enforcement Bureau previously proposed penalties against Birach Broadcasting for apparent fencing

violations on two separate occasions. This history of noncompliance with the antenna structure fencing

rules warrants a significant increase to our normal penalties. In addition, these apparent violations raise

concerns that Birach Broadcasting may have a systemic compliance issue with the antenna structure fencing

rules. As a result, we order Birach Broadcasting to submit information regarding the current fencing of its

antenna structures and provide a timeline to remediate any current violations.

2.

In this Notice of Apparent Liability for Forfeiture (NAL), we find that Birach Broadcasting,

owner of antenna structure numbers 1222688 and 1222689 (Antenna Structures) and licensee of Station

WWCS in Canonsburg, Pennsylvania, apparently willfully and repeatedly violated Section 73.49 of the

Commission’s rules (Rules),1 by failing to enclose the Antenna Structures within an effective locked fence

or other enclosure. We conclude that Birach Broadcasting is apparently liable for a forfeiture in the amount

of twelve thousand dollars ($12,000).

II.

BACKGROUND

3.

On August 22, 2013, an agent of the Enforcement Bureau’s Philadelphia Office

(Philadelphia Office) conducted an inspection of the Antenna Structures utilized for the Station WWCS

two-tower directional antenna array located in a residential neighborhood of Canonsburg, Pennsylvania.

At the time of the inspection, the agent observed that each Antenna Structure was surrounded by a

wooden fence, but that large sections of each fence had completely fallen onto the ground. The agent also

observed that there was no fence around the perimeter of the property and that a significant amount of

vegetation had grown over the fallen fencing. These conditions led to unrestricted public access to both

Antenna Structures, which had radio frequency potential at their bases.

1 47 C.F.R. § 73.49.

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Federal Communications Commission

DA 14-885

4.

On September 4, 2013, the Philadelphia Office issued a Notice of Violation (NOV) to

Birach Broadcasting for failing to enclose the Antenna Structures within an effective locked fence or

other enclosure in violation of Section 73.49 of the Rules.2 Birach Broadcasting’s NOV Response stated

that it hired a tower company in July 2013 to repair the fences, but it was not aware that the work was

never completed until notified by the FCC agent.3 The NOV Response further stated that the fencing

repairs were completed just a few days after the FCC inspection by a different tower company.4

III.

DISCUSSION

5.

Section 503(b) of the Communications Act of 1934, as amended (Act), provides that any

person who willfully or repeatedly fails to comply substantially with the terms and conditions of any license,

or willfully or repeatedly fails to comply with any of the provisions of the Act or of any rule, regulation, or

order issued by the Commission thereunder, shall be liable for a forfeiture penalty.5 Section 312(f)(1) of the

Act defines “willful” as the “conscious and deliberate commission or omission of [any] act, irrespective of

any intent to violate” the law.6 The legislative history to Section 312(f)(1) of the Act clarifies that this

definition of willful applies to both Sections 312 and 503(b) of the Act,7 and the Commission has so

interpreted the term in the Section 503(b) context.8 The Commission may also assess a forfeiture for

violations that are merely repeated, and not willful.9 The term “repeated” means the commission or

omission of such act more than once or for more than one day.10

A.

Failure to Enclose the Antenna Structures Within an Effective Locked Fence

6.

The evidence in this case is sufficient to establish that Birach Broadcasting violated Section

73.49 of the Rules, which states that “[a]ntenna towers having radio frequency potential at the base . . .

must be enclosed within effective locked fences or other enclosures . . . . [I]ndividual tower fences need

2 See Birach Broad. Corp., Notice of Violation, V201332400040 (Sept. 4, 2013) (on file in EB-FIELDNER-13-

00010859) (NOV).

3 See Letter from John Trent of the Law Offices of Putbrese, Hunsaker, & Trent, P.C., Birach Broadcasting

Corporation (Sept. 13, 2013) (on file in EB-FIELDNER-13-00010859) (NOV Response).

4 Id.

5 47 U.S.C. § 503(b).

6 47 U.S.C. § 312(f)(1).

7 H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) (“This provision [inserted in Section 312] defines the terms

‘willful’ and ‘repeated’ for purposes of section 312, and for any other relevant section of the act (e.g., Section 503)

. . . . As defined[,] . . . ‘willful’ means that the licensee knew that he was doing the act in question, regardless of

whether there was an intent to violate the law. ‘Repeated’ means more than once, or where the act is continuous, for

more than one day. Whether an act is considered to be ‘continuous’ would depend upon the circumstances in each

case. The definitions are intended primarily to clarify the language in Sections 312 and 503, and are consistent with

the Commission’s application of those terms . . . .”).

8 See, e.g., Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5

(1991), recons. denied, 7 FCC Rcd 3454 (1992).

9 See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362,

para. 10 (2001) (Callais Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable television operator’s

repeated signal leakage).

10 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also applies to violations for which forfeitures are

assessed under Section 503(b) of the Act, provides that “[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.” See Callais Cablevision, Inc., 16 FCC Rcd at 1362,

para. 9.

2

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Federal Communications Commission

DA 14-885

not be installed if the towers are contained within a protective property fence.”11 The Antenna Structures

have radio frequency potential at their base and therefore must be enclosed within an effective locked

fence. On August 22, 2013, when Station WWCS was in operation, agents from the Philadelphia Office

observed that numerous sections of the fences surrounding each of the two Antenna Structures had fallen

down, thereby allowing ready access to the bases of the Antenna Structures. The agents also observed

that there was no fence around the perimeter of the property. Based on the amount of vegetation growing

over the fallen sections of the fences, it was clear that the fences had been in that position for an extended

period of time. Indeed, Birach Broadcasting acknowledged in its NOV Response that it was aware that

the fences needed repair as early as July 2013. Therefore, based on the evidence before us, we find that

Birach Broadcasting apparently willfully and repeatedly violated Section 73.49 of the Rules by failing to

enclose the Antenna Structures within an effective locked fence.

B.

Proposed Forfeiture and Reporting Requirement

7.

Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the Rules,

the base forfeiture amount for an AM fencing violation is $7,000.12 We retain the discretion, however, to

issue a higher or lower forfeiture than provided in the Forfeiture Policy Statement or to apply alternative or

additional sanctions as permitted by statute, subject to the statutory cap.13 In assessing the monetary

forfeiture amount, we must take into account the statutory factors set forth in Section 503(b)(2)(E) of the

Act, which include the nature, circumstances, extent, and gravity of the violations, 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.14

8.

Since 2012, the Enforcement Bureau has proposed $27,000 in penalties against Birach

Broadcasting for apparent violations of the antenna structure rules, including for fencing violations.15

The

fact that Birach Broadcasting apparently continues to commit similar violations at its other transmitter sites

demonstrates a disregard for the FCC’s authority and raises concerns that it may have a systemic

compliance issue with the antenna structure fencing rules.16 As a result, after applying the Forfeiture Policy

Statement, Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that a $5,000

upward forfeiture is warranted and Birach Broadcasting is apparently liable for a forfeiture in the amount of

$12,000.17

11 47 C.F.R. § 73.49.

12 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) (Forfeiture Policy Statement), recons. denied,

15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80.

13 47 C.F.R. § 1.80(b)(8), Note (“The Commission and its staff retain the discretion to issue a higher or lower

forfeiture than provided in the guidelines, to issue no forfeiture at all, or to apply alternative or additional sanctions

as permitted by statute.”).

14 47 U.S.C. § 503(b)(2)(E).

15 Birach Broad. Corp., Notice of Apparent Liability for Forfeiture, 29 FCC Rcd 468 (Enf. Bur. 2014) (PAID);

Birach Broad. Corp., Notice of Apparent Liability for Forfeiture and Order, 27 FCC Rcd 5827 (Enf. Bur. 2012).

16 Although Birach Broadcasting has not yet paid the forfeiture issued in 2012, the “underlying facts of [the] prior

violation . . . show[] a pattern of non-complaint behavior.” See Forfeiture Policy Statement, 12 FCC Rcd at 17103,

para. 34 (“[U]sing the underlying facts of a prior violation that shows a pattern of non-compliant behavior against a

licensee in a subsequent renewal, forfeiture, transfer, or other proceeding does not cause the prejudice that Congress

sought to avoid.”); see also Equity Commc’ns LP, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 8031,

8033, para. 7 (Enf. Bur. 2012) (using the underlying facts from a prior NAL to support an upward adjustment in the

proposed forfeiture amount for an AM fencing violation).

17 See Telava Wireless, Inc., Notice of Apparent Liability for Forfeiture and Order, 27 FCC Rcd 3246 (Enf. Bur.

(continued....)

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Federal Communications Commission

DA 14-885

9.

In light of Birach Broadcasting’s apparent history of non-compliance, we also direct it to

submit a written statement signed under penalty of perjury by an officer or director of Birach Broadcasting

pursuant to Section 1.16 of the Rules providing: (1) a list of all antenna structures owned by Birach

Broadcasting; (2) whether the antenna structures are enclosed within an effective locked fence or other

enclosure; and (3) a repair timeline where an antenna structure is not enclosed within an effective locked

fence or other enclosure.18 This statement is in addition to any statement that Birach Broadcasting

submits pursuant to paragraph 15 and must be provided to the Philadelphia Office at the address listed in

paragraph 12 within thirty (30) calendar days of the release date of this NAL.

IV.

ORDERING CLAUSES

10.

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 of the Commission’s rules,

Birach Broadcasting Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A

FORFEITURE in the amount of twelve thousand dollars ($12,000) for violations of Section 73.49 of the

Commission’s rules.19

11.

IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission’s rules,

within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture, Birach

Broadcasting Corporation SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a

written statement seeking reduction or cancellation of the proposed forfeiture.

12.

IT IS FURTHER ORDERED that Birach Broadcasting Corporation SHALL SUBMIT a

written statement as described in paragraph 9 within thirty (30) calendar days of the release date of this

Notice of Apparent Liability for Forfeiture and Order. This statement must be mailed to Federal

Communications Commission, Enforcement Bureau, Northeast Region, Philadelphia Office, 2300 East

Lincoln Highway, Langhorne, Pennsylvania 19047 and include the NAL/Acct. No. referenced in the

caption. Birach Broadcasting Corporation also shall e-mail the written response to NER-

Response@fcc.gov.

13.

Payment of the forfeiture must be made by check or similar instrument, wire transfer, or

credit card, and must include the NAL/Account Number and FRN referenced above. Birach Broadcasting

Corporation shall also send electronic notification on the date said payment is made to NER-

Response@fcc.gov. Regardless of the form of payment, a completed FCC Form 159 (Remittance

Advice) must be submitted.20 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:

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.

(...continued from previous page)

2012) (proposing $5,000 upward adjustment where repeated violations raised concern of systematic non-compliance

with the antenna structure rules); Telava Wireless, Inc., Notice of Apparent Liability for Forfeiture and Order, 27

FCC Rcd 3239 (Enf. Bur. 2012) (same).

18 See Telava Wireless, Inc., 27 FCC Rcd at 3234, para. 7 (ordering antenna structure owner to provide information

regarding current compliance).

19 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80, and 73.49.

20 An FCC Form 159 and detailed instructions for completing the form may be obtained at

http://www.fcc.gov/Forms/Form159/159.pdf.

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Federal Communications Commission

DA 14-885

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.

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.

14.

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

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

20554.21 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.

15.

The written statement seeking reduction or cancellation of the proposed forfeiture, if

any, must include a detailed factual statement supported by appropriate documentation and affidavits

pursuant to Sections 1.16 and 1.80(f)(3) of the Commission’s rules.22 Mail the written statement to

Federal Communications Commission, Enforcement Bureau, Northeast Region, Philadelphia Office, 2300

East Lincoln Highway, Langhorne, Pennsylvania 19047 and include the NAL/Acct. No. referenced in the

caption. Birach Broadcasting Corporation also shall e-mail the written response to NER-

Response@fcc.gov.

16.

The Commission will not consider reducing or canceling a forfeiture in response to a claim

of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three-year period;

(2) financial statements prepared according to generally accepted accounting principles (GAAP); or (3)

some other reliable and objective documentation that accurately reflects the petitioner’s current financial

status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the

financial documentation submitted.

17.

IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for

Forfeiture and Order shall be sent by both Certified Mail, Return Receipt Requested, and first class mail to

Birach Broadcasting Corporation at 21700 Northwestern Highway, Suite 1190, Tower 14, Southfield,

Michigan 48075.

FEDERAL COMMUNICATIONS COMMISSION

David C. Dombrowski

District Director

Philadelphia Office

Northeast Region

Enforcement Bureau

21 See 47 C.F.R. § 1.1914.

22 47 C.F.R. §§ 1.16, 1.80(f)(3).

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