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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
State Broadcasting Corporation ) File No. EB-02-AT-340
Gulfport, Mississippi ) NAL/Acct. No. 200332480010
) FRN 0005-0035-20
)
FORFEITURE ORDER
Adopted: March 12, 2004 Released: March 16,
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) to State Broadcasting Corporation
(``State''), licensee of AM radio station WMLT, Dublin,
Georgia, for willful violation of Section 73.49 of the
Commission's Rules (``Rules'').1 The noted violation
involves State's failure to enclose one of its antenna
structures within an effective locked fence or other
enclosure.
2. On November 5, 2002, the Commission's Atlanta, Georgia
Office, (``Atlanta Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to State for a
forfeiture in the amount of seven thousand dollars
($7,000).2 State filed a response to the NAL.
II. BACKGROUND
3. On August 27, 2002, while conducting tower safety
inspections as part of a field-wide targeted tower safety
compliance program, an agent from the Atlanta Office
inspected the antenna array for WMLT. The agent observed
that the fence surrounding one of the antenna structures
was incomplete and broken, allowing access to the base of
the antenna structure.
4. On November 5, 2002, the Atlanta Office issued a NAL to
State for failure to enclose one of its antenna
structures within an effective locked fence or other
enclosure in willful violation of Section 73.49 of the
Rules. In its response, State requests cancellation of
the proposed forfeiture based on its corrective efforts
and its participation in the Georgia Association of
Broadcasters' Alternative Broadcast Inspection Program
(``ABIP'').
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended, (``Act''),3
Section 1.80 of the Rules,4 and The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Policy Statement''). In examining State'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.5
6. Section 73.49 of the Rules requires broadcast licensees
to maintain an effective locked fence or other enclosures
around the base of an antenna tower having radiofrequency
potential at the base. At the time of the inspection on
August 27, 2002, one of the WMLT antenna structures was
not enclosed within an effective locked fence or other
enclosure. State's response to the NAL indicates that it
does not disagree that the fence was ineffective. State
asserts that an entirely new fence, gate and lock were
installed at the antenna structure sometime between
November 5, 2002 and December 19, 2002. Thus, State
asserts that there is now an effective, locked fence in
place. However, we note that remedial actions taken to
correct the violation, while commendable, are not
mitigating factors.6 Accordingly, we conclude that State
willfully violated Section 73.49 of the Rules.
7. Further, State asserts that WMLT is a participant in
the Georgia Association of Broadcasters' ABIP,7 and was
awaiting inspection at the time the fencing violation was
discovered. State contends that because WMLT was
voluntarily participating in the ABIP, it was protected
from the issuance of the NAL. We disagree. Initially,
we note that State did not hold a valid certificate of
compliance, because it had not yet been inspected. Thus,
State was not entitled to the protections provided by the
ABIP agreement, namely, protection from random, routine
inspections. Moreover, based upon our review of a copy
of the ABIP agreement in effect at the time of the
inspection and issuance of the NAL,8 we further note
that, assuming, arguendo, State established that it had
requested and paid for a yet to be performed Georgia
Association of Broadcasters' station inspection, State
would not have been protected from an inspection
resulting from an external trigger, in this case, the
targeted tower safety compliance program. Accordingly,
the provision in the ABIP agreement providing that the
FCC will terminate any attempted inspection of a station
upon a showing that a Georgia Association of
Broadcasters' inspection has been requested and paid for
would not have exempted State from the type of inspection
that resulted in issuance of the NAL.9
8. We have examined State's response to the NAL pursuant
to the statutory factors above, and in conjunction with
the Policy Statement. As a result of our review, we
conclude that State willfully violated Section 73.49 of
the Rules and affirm the forfeiture amount of $7,000.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4)
of the Rules,10 State Broadcasting Corporation IS LIABLE
FOR A MONETARY FORFEITURE in the amount of seven thousand
dollars ($7,000) for 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.11 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. 200332480010 and FRN 0005-0035-
20. Requests for full payment under an installment plan
should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.12
11. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to State Broadcasting Corporation, P.O. Box 2639,
Gulfport, Mississippi 39505.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 73.49.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480010 (Enf. Bur., Atlanta Office, released November 5,
2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
7 ABIP Programs are established pursuant to written agreements
between FCC Field Offices and state broadcast associations.
Under an ABIP agreement, a state broadcast association provides
contract inspection services for a fee to its member stations.
The inspector notifies the station of any actual or potential
violations of the Commission's rules and the station is then
given a brief period of time to correct any deficiencies. Upon
confirmation that any deficiencies have been corrected, the
association sends a certificate of compliance to the station and
to the relevant Field Office. Upon receipt of a certificate of
compliance, the Field Office agrees not to conduct routine random
inspections of the station for the period covered by the
certificate.
8 State associations, including the Georgia Association of
Broadcasters, recently signed new ABIP agreements with the
Enforcement Bureau. The new agreements became effective on
September 29, 2003, and similarly permit targeted tower safety
inspections.
9 See Cumulus Licensing Corporation, 18 FCC Rcd 21234, 21236
(Enf. Bur. 2003) (licensee was issued a forfeiture for failing to
maintain an effective locked fence around an antenna tower even
though it had received a certificate of compliance under an ABIP,
because the violation was discovered during an inspection
conducted as part of a targeted tower safety compliance program).
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.