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JMK Communications, Inc.

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Released: May 3, 2013

Federal Communications Commission

DA 13-982

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
)
)
)

FORFEITURE ORDER

Adopted:

May 2, 2013

Released:

May 3, 2013
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 seven
thousand dollars ($7,000) to JMK Communications, Inc. (JMK), licensee of AM Station WPWC, in
Dumfries, Virginia (Station), for its willful and repeated violation of Section 73.49 of the Commission’s
rules (Rules).1 The noted violations involved JMK’s failure to enclose the Station’s antenna structures
within effective locked fences or other enclosures.

II.

BACKGROUND

2.
On July 18, 2012, the Enforcement Bureau’s Columbia Office (Columbia Office) issued a
Notice of Apparent Liability for Forfeiture and Order (NAL)2 to JMK for violating Section 73.49 of the
Rules by failing to maintain effective locked fences or other enclosures around the Station’s four antenna
structures. Specifically, an agent from the Columbia Office observed during an inspection conducted on
September 2, 2011, that one of the Station’s antenna structures had no fencing at all around the base of the
structure and the other three antenna structures had only partial fencing around their bases, thereby allowing
unrestricted access to all the structures. The Columbia Office concluded that the damage to the fences was
so extensive that they must have been in that condition for a significant period of time. The agent also had
observed that there was no perimeter fence around the property where the antenna structures were located.
3.
JMK submitted a response to the NAL requesting cancellation of the proposed $7,000
forfeiture because (1) the damage to the fences surrounding the antenna structures resulted from an
“unforeseeable natural disaster” that caused “extensive flooding” and (2) the antenna structure site “is
protected from public intrusion by natural barriers,” thus ensuring that, during the brief time the fences
were damaged, “there was no reasonable danger of public contact with the towers.”3 JMK also stated,


1 47 C.F.R. § 73.49.
2JMK Communications, Inc., Notice of Apparent Liability for Forfeiture and Order, 27 FCC Rcd 8111 (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 Peter Gutmann, Counsel for JMK Communications, Inc., to the Columbia Office, Northeast Region,
Enforcement Bureau at 1-2 (dated August 17, 2012) (on file in EB-11-CF-0110) (NAL Response).

Federal Communications Commission

DA 13-982

and provided supporting documentation, that new fences had been installed around the antenna structures
as of July 23, 2012.4

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),5 Section 1.80 of the Rules,6 and the
Forfeiture Policy Statement.7 In examining JMK’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 JMK’s response in light of
these statutory factors, and find that cancellation of the forfeiture is not warranted.
5.
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. In addition, JMK does not
dispute the condition of the fences. Thus, based on the totality of the circumstances, we find that JMK
willfully and repeatedly violated Section 73.49 of the Rules.
6.
We now address JMK’s arguments for cancellation of the forfeiture. First, we decline to
cancel or reduce the forfeiture based on JMK’s claim that the damage to the fences observed by the agents
during the inspection on September 2, 2011, was the result of an unforeseeable natural disaster.10 JMK
does not provide the date, or any supporting documentation, that severe storms and flooding occurred in
Dumfries, Virginia, immediately prior to the agent’s inspection. JMK merely states that the agent’s
inspection of the fences “appears to have followed damage caused by extensive flooding and wind from
several storms in quick succession.”11 The antenna structure site observed by the agent during the
inspection on September 2, 2011, however, did not show any signs of a storm severe enough to have
damaged and/or removed portions of the fences.12 In fact, although JMK claims that it had to wait for the


4 Id. at 2.
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 47 C.F.R. § 73.49.
10 NAL Response at 2.
11 NAL Response at 1.
12 We are not persuaded by the undated, out-of-context photograph submitted by JMK as evidence of “a segment of
the wooden fence that previously had surrounded the towers but that was washed away in the flood waters and was
found a considerable distance from the site.” NAL Response at 1. We also note that, in its NAL Response, JMK
addresses what it believes caused damage to “segments of the wooden fence” and “major portions of the former
tower fencing,” but does not address the antenna structure that had no fence at all. Because we find no basis to
conclude that a natural disaster was the cause of the damage to the fences that were missing “portions” or
“segments,” we find it unnecessary to consider whether a natural disaster could have washed away an entire fence.
2

Federal Communications Commission

DA 13-982

ground to dry before it could replace the fence after the agent’s inspection, the agent found on the day of
the inspection that the ground was solid enough for him to drive down an access road and onto the field
where the antenna structures were located.13 For all these reasons, we believe that it was negligence on
the part of JMK, and not a natural disaster, that resulted in the absence of one fence and the deterioration
of the other three fences. We therefore decline to cancel or reduce the forfeiture on these grounds.
7.
We also reject JMK’s claim that the forfeiture should be cancelled because the
seriousness of the violation is mitigated by the fact that several sides of the antenna structure site were
surrounded by a body of water and a 30-foot cliff, thereby limiting access to the site between the time the
fences were damaged and the time the fences were fixed.14 First, the inaccessibility to the site on several
sides is irrelevant if the site is easily accessible from another side of the site. As noted above, the agent
was able to easily gain access to the antenna structure site by driving down an access road and, at the time
of the agent’s inspection, the access road was not closed off by a locked gate, as JMK reports is now the
case.15 Second, by JMK’s own admission, the public can gain access by “swimming or boat” and we
disagree with JMK that the difficulties associated with accessing the antenna structure site in that manner
ensures “[n]o reasonable danger of public access”16 We therefore find that neither cancellation nor
reduction is warranted on this basis and impose a forfeiture in the amount of $7,000.

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, JMK Communications, Inc.

IS LIABLE FOR A MONETARY FORFEITURE

in the amount of
seven thousand dollars ($7,000) for violation of Section 73.49 of the Commission’s rules.17
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.18 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.19 JMK Communications, Inc. 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.20 When completing the FCC Form 159, enter the


13 We also note that the complaint that prompted the agent’s inspection referenced an online article, dated August
20, 2011, which contained a photograph showing a severely damaged fence at the Station’s antenna structure site.
See Crew Called to Fire at Radio Tower, Potomac Local News (August 20, 2011) www.potomaclocal.com. Thus,
even prior to the agent’s inspection on September 2, 2011, there is evidence that at least one of the fences was
severely damaged.
14 NAL Response at 2.
15 Id.; Agent’s Statement on file in EB-11-CF-0110.
16 NAL Response at 2; see also cf. A Radio Company, Inc., Memorandum Opinion and Order, 22 FCC Rcd 2019
(2007) (reducing forfeiture because 12-inch deep swamp filled with crocodiles and leaches surrounding antenna
structure was considered a semi-permanent barrier impeding access to the base of the antenna structure).
17 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4), 73.49.
18 47 C.F.R. § 1.80.
19 47 U.S.C. § 504(a).
20 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 13-982

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
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.
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 JMK Communications, Inc. at 4525
Wilshire Boulevard, Los Angeles, California 90010, and to its counsel, Peter Gutmann at Womble
Carlyle Sandridge & Rice, 1200 Nineteenth Street, NW, Suite 500, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director
Northeast Region
Enforcement Bureau


21 See 47 C.F.R. § 1.1914.
4

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