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JMK Communications, Inc.

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Released: July 18, 2012

Federal Communications Commission

DA 12-1149

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
JMK Communications Inc.
) File No.: EB-11-CF-0110
) NAL/Acct. No.: 201232340001
Licensee of Station WPWC(AM)
) FRN No: 0007309503
Dumfries, Virginia
) Facility ID: 25995
)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

Adopted: July 17, 2012
Released: July 18, 2012
By the District Director, Columbia Office, Northeast Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture and Order (NAL), we find that JMK
Communications Inc. (JMK), licensee of AM Station WPWC, in Dumfries, Virginia (Station), apparently
willfully and repeatedly violated Section 73.49 of the Commission’s rules (Rules)1 by failing to enclose the
Station’s antenna structures within effective locked fences or other enclosures. We conclude that JMK is
apparently liable for a forfeiture in the amount of seven thousand dollars ($7,000). We further direct JMK
to submit, no later than thirty (30) calendar days from the release date of this NAL, a written statement
signed under penalty of perjury stating that the Station is now in compliance with Section 73.49 of the
Rules.

II.

BACKGROUND

2.
On September 2, 2011, in response to a complaint, an agent from the Enforcement Bureau’s
Columbia Office inspected the Station’s four-tower array in Dumfries, Virginia.2 All four antenna structures
have radio frequency potential at their base. The agent observed that one of the antenna structures had no
fencing at all around the base of the structure, while the other three antenna structures had only partial
fencing around their bases, thereby allowing unrestricted access to all the structures. The level of
deterioration observed by the agent indicated that the fences had been in that condition for a significant
period of time. The agent also observed that there was no perimeter fence around the property where the
antenna structures were located.

III.

DISCUSSION

3.
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

1 47 C.F.R. § 73.49.
2 At the time of the inspection, the antenna structure registration numbers were not posted at the base of the
structures. The agent later determined that the following registration numbers are associated with the Station’s
antenna structures: 1022267, 1022268, 1022269, and 1022270.

Federal Communications Commission

DA 12-1149

order issued by the Commission thereunder, shall be liable for a forfeiture penalty.3 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.4 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,5 and the Commission has so
interpreted the term in the Section 503(b) context.6 The Commission may also assess a forfeiture for
violations that are merely repeated, and not willful.7 The term “repeated” means the commission or
omission of such act more than once or for more than one day.8

A.

Failure to Enclose the Antenna Structure Within an Effective Locked Fence

4.
The evidence in this case is sufficient to establish that JMK 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.9 On September 2, 2011, agents
from the Columbia Office observed that one of the Station’s antenna structures had no fencing and the other
three antenna structures had only partial fencing. Based on the degree of deterioration, agents concluded
that the fences had been in disrepair for an extended period of time. Agents also did not observe a perimeter
fence. Accordingly, based on the evidence before us, we find that JMK apparently willfully and repeatedly
violated Section 73.49 of the Rules by failing to enclose the Station’s antenna structures within effective
locked fences or other enclosures.

B.

Proposed Forfeiture and Reporting Requirement

5.
Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for failure to maintain an effective AM tower fence is $7,000.10 In assessing the
monetary forfeiture amount, we must also 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

3 47 U.S.C. § 503(b).
4 47 U.S.C. § 312(f)(1).
5 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 . . . .”).
6 See, e.g., Application for Review of Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
7 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).
8 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.
9 47 C.F.R. § 73.49.
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) (Forfeiture Policy Statement), recon. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80.

Federal Communications Commission

DA 12-1149

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 Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that JMK is apparently liable for a forfeiture in the
amount of $7,000.12
6.
We direct JMK to submit a statement, pursuant to Section 1.16 of the Rules13 signed under
penalty of perjury by an officer or director of JMK stating that it is now in compliance with Section 73.49 of
the Rules.

IV.

ORDERING CLAUSES

7.
Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications
Act of 1934, as amended, and Sections 0.111, 0.204(b), 0.311, 0.314 and 1.80 of the Commission’s rules,
JMK Communications Inc. is hereby

NOTIFIED

of this

APPARENT LIABILITY FOR A
FORFEITURE

in the amount of seven thousand dollars ($7,000) for violations of Section 73.49 of the
Rules.14
8.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Commission’s rules
within thirty (30) days of the release date of this Notice of Apparent Liability for Forfeiture and Order, JMK
Communications Inc.

SHALL PAY

the full amount of the proposed forfeiture or

SHALL FILE

a written
statement seeking reduction or cancellation of the proposed forfeiture.
9.

IT IS FURTHER ORDERED

that JMK Communications Inc.

SHALL SUBMIT

a
written statement as described in paragraph 6 within thirty (30) calendar days of the release date of this
Notice of Apparent Liability for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast Region, Columbia Office, 9200 Farm
House Lane, Columbia, Maryland 21046 and include the NAL/Acct. No. referenced in the caption. JMK
Communications, Inc. shall also e-mail the written statement to NER-Response@fcc.gov.
10.
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. JMK 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.15 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-

11 47 U.S.C. § 503(b)(2)(E).
12 See, e.g., Patrick H. Sickafus, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 6818 (Enf. Bur. 2011)
(proposing $7,000 base forfeiture for failure to maintain effective locked fences surrounding two antenna structures
in a three-tower array) (forfeiture paid).
13 47 C.F.R. § 1.16.
14 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.204(b), 0.311, 0.314, 1.80, 73.49.
15 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.

Federal Communications Commission

DA 12-1149

GL, 1005 Convention Plaza, St. Louis, MO 63101.
 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.
11.
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. 20554.16 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.
12.
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 1.80(f)(3) and 1.16 of the Rules.17 Mail the written statement to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Columbia Office, 9200 Farm House Lane,
Columbia, Maryland 21046 and include the NAL/Acct. No. referenced in the caption. JMK
Communications Inc. also shall e-mail the written response to NER-Response@fcc.gov.
13.
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 practices (“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.
14.

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
JMK Communications Inc., 4525 Wilshire Boulevard, Los Angeles, California 90010.
FEDERAL COMMUNICATIONS COMMISSION
Salomon Satche
District Director
Columbia Office
Northeast Region
Enforcement Bureau

16 See 47 C.F.R. § 1.1914.
17 47 C.F.R. §§ 1.16, 1.80(f)(3).

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