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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
WCVC, Inc. ) File No. EB-02-TP-314
Licensee of Station WCVC(AM), ) NAL/Acct. No. 200332700001
Tallahassee, Florida ) FRN # 0003-7830-40
FORFEITURE ORDER
Adopted: February 2, 2004
Released: February 4, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of seven thousand dollars
($7,000.00) to WCVC, Inc. (``WCVC''), licensee of Station
WCVC(AM), Tallahassee, Florida, for willful violation of
Section 73.49 of the Commission's Rules (``Rules'').1 The
noted violation involves WCVC's failure to effectively fence
its antenna structure.
2. On October 22, 2002, the Commission's Tampa,
Florida Office (``Tampa Office'') released a Notice of
Apparent Liability for Forfeiture (``NAL'') in the amount of
seven thousand dollars ($7,000.00) to WCVC for the noted
violation.2 WCVC filed a response to the NAL on November
22, 2002.3
II. BACKGROUND
3. On August 7, 2002, in response to complaints
regarding the operations of Station WCVC(AM), agents from
the Tampa Office conducted an on-site inspection. The
agents observed that WCVC(AM)'s antenna structure, which had
radio frequency potential at its base, was not effectively
fenced or enclosed. The on-site inspection ultimately
culminated in the Tampa Office's issuance of the NAL.
4. In its response to the NAL, WCVC admitted that a
portion of the fence had been down
following the erection of a new antenna structure in 2001 or
through someone knocking it down.4 WCVC nevertheless sought
cancellation of the proposed forfeiture, claiming that that
it did not willfully violate the antenna fencing
requirements of Section 73.49, that it had years of
broadcasting experience, and that it was a ``small daytime
radio station operating out of a very humble mobile home.''
III. DISCUSSION
5. 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 Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules
to Incorporate the Forfeiture Guidelines.7 In examining
WCVC's response, Section 503(b) 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 such other matters as
justice may require.8 As explained below, we do not find
that WCVC presented mitigating evidence that would warrant
cancellation of the assessed forfeiture.
6. We are not persuaded by WCVC's ``categorical''
denial that it ``willfully violated Section 73.49.''9
Section 503(b)(1)(B) provides that any person who
``willfully or repeatedly'' fails to comply with any
provision of the Act or any rule, regulation or order issued
by the Commission under the Act ``shall be liable to the
United States for a forfeiture penalty.''10 In this
context, ``willful'' means the conscious and deliberate
commission or omission of an act, irrespective of any intent
to violate statutory or regulatory requirements.11 WCVC
has provided no evidence to suggest that anyone other than
it or its agent was responsible for the lack of full and
effective fencing. In the instant case, it is undisputed
that WCVC consciously and deliberately operated an antenna
structure with a base that had radio frequency potential,
without proper and effective fencing or other enclosures.
We find that WCVC willfully violated Section 73.49 of the
Rules.
7. We also do not find persuasive WCVC's reliance on
its assertion that it has never been cited by the Commission
for any violations previously as a basis for reducing the
forfeiture. Commission records indicate that WCVC
previously had been issued a Notice of Violation regarding
its apparent failure to comply with Commission Emergency
Alert System (``EAS'') testing and antenna structure
cleaning and repainting requirements.12
8. Finally, we find the fact that WCVC is a small
station, in and of itself, is an insufficient basis to
reduce or cancel the forfeiture. To the extent WCVC is
arguing inability to pay, the Commission will not consider
reducing or canceling a forfeiture on the basis of inability
to pay in the absence of financial documentation (e.g.,
federal tax returns, GAPP standard accounting statements, or
other reliable, objective information).13 WCVC did not
submit any financial documentation that would enable us to
assess its ability to pay.14
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,15 WCVC, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of seven thousand dollars
($7,000.00) for its failure to failure to effectively fence
or enclose an antenna structure with radio frequency
potential at its base, in willful violation of Section 73.49
of the Rules.
10. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within 30
days of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be referred
to the Department of Justice for collection pursuant to
Section 504(a) of the Act.16 Payment may be made by mailing
a check or similar instrument, payable to the order of the
Federal Communications Commission, to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should reference NAL/Acct. No.
200232500008 and FRN 0006-7409-14. Requests for full
payment under an installment plan should be sent to: Chief,
Revenue and Receivables Group, 445 12th Street, S.W.,
Washington, D.C. 20554.17
11. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Wendell Borrnick, President, WCVC,
Inc., 117 ½ Henderson Road, Tallahassee, Florida 32312.
FEDERAL COMMUNICATIONS
COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 73.49.
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 200332700001 (Enf. Bur., Tampa Office, released October
22, 2002).
3 See Letter from Wendell Borrink, President, WCVC, Inc. to
Ralph Barlow, District Director, Tampa, Florida Office,
Enforcement Bureau, Federal Communications Commission
(November 22, 2002) (``NAL Response'').
4 WCVC explained that after the contractors erected the new
antenna structure, ``evidently a small section near the
wooded area was on the ground because of a rotted fence
post, or someone later knocked it down.'' NAL Response at
1.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999).
8 47 U.S.C. § 503(b)(2)(D).
9 NAL Response at 1.
10 47 C.F.R. § 503(b)(1)(B).
11 See 47 U.S.C. § 312(f); see also Southern California
Broadcasting Co., 6 FCC Rcd 4387, 4387-88, ¶ 5 (1991).
12 See Enforcement Bureau Field Operations List of Actions
Taken, 15 FCC Rcd 20423, 20425 (Enf. Bur. 2000) (referencing
the September 14, 2000, Notice of Violation issued to WCVC,
Inc. for apparent violation of Sections 11.61 and 17.50 of
the Rules); see, e.g., Hill Country Real Estate
Developmental Corp., DA 03-3200, ¶ 5 (Enf. Bur., released
October 20, 2003) (rejecting a violator's past history claim
on the basis of previously issued Warnings and/or Notices of
Violations). We also note that the fact that the
complainant here may have been a disgruntled station
employee is irrelevant to the issue of whether a violation
occurred and a forfeiture should be imposed.
13 See NAL at ¶ 11.
14 See, e.g., Commonwealth License Subsidiary, LLC, DA 03-
3147, ¶ 10 (Enf. Bur., released October 14, 2003) (denying a
requested cancellation of a forfeiture for an antenna
fencing violation on the basis of inability to pay, because
the licensee failed to substantiate its ``suggestion'' that
payment would adversely affect the station's financial
viability); Hancock Broadcasting Corporation, 16 FCC Rcd
15344, 15346, ¶ 8 (Enf. Bur. 2001) (reducing an assessed
forfeiture for antenna fencing and EAS violations, based on
the licensee's inability to pay claim, which it
substantiated through the submission of three recent federal
tax returns).
15 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.