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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-FIELDSCR-12-00000481
Wagenvoord Advertising Group, )
Inc. NAL/Acct. No.: 201232620003
)
Licensee of Radio Station FRN: 0010300747
KLRG-AM )
Facility ID No.: 14053
Sheridan, AR )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 19, 2012 Released: July 19, 2012
By the District Director, New Orleans Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Wagenvoord Advertising Group, Inc. (Wagenvoord), licensee
of Station KLRG-AM (Station), in Sheridan, Arkansas, apparently
willfully and repeatedly violated Section 73.49 of the Commission's
rules (Rules) by failing to have an effective locked fence or other
enclosure around its antenna structure. We conclude that Wagenvoord is
apparently liable for a forfeiture in the amount of seven thousand
dollars ($7,000). In addition, we direct Wagenvoord to submit, no
later than thirty (30) calendar days from the date of this NAL, a
statement signed under penalty of perjury stating that its antenna
structure complies with the Commission's fencing requirements.
II. BACKGROUND
2. On January 24, 2012, in response to a complaint, agents from the
Enforcement Bureau's New Orleans Office (New Orleans Office) inspected
the Station's antenna structure, while the station was in operation,
and observed that over half of the fence surrounding the base of the
antenna structure was lying on the ground. The agents also observed
that there was no fence surrounding the perimeter of the property.
3. On January 25, 2012, agents from the New Orleans Office, accompanied
by the Station's engineer, conducted an inspection of Station
KLRG-AM's antenna structure while the station was in operation. Agents
again observed that over half of the fence surrounding the Station's
antenna structure was lying on the ground. The Station's engineer
stated that he had noticed that the fence was down approximately two
weeks prior to the inspection.
III. DISCUSSION
4. 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. 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. 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, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission may
also assess a forfeiture for violations that are merely repeated, and
not willful. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
A. Failure to Enclose the Antenna Structure Within an Effective Locked
Fence or Other Enclosure
5. Section 73.49 of the Rules states that antenna structures "having
radio frequency potential at the base . . . must be enclosed within
effective locked fences or other enclosures." Individual tower fences
need not be installed if the towers are contained within a protective
property fence. Station KLRG-AM's antenna structure has radio
frequency potential at the base. On January 24 and 25, 2012, agents
from the New Orleans Office observed that over half of the fence
surrounding the Station's antenna structure was lying on the ground,
while Station KLRG-AM was in operation. Thus, the fence did not
effectively enclose the base of the structure. The agents also did not
observe a perimeter fence surrounding the property. Therefore, based
on the evidence before us, we find that Wagenvoord apparently
willfully and repeatedly violated Section 73.49 of the Rules by
failing to have an effective locked fence or other enclosure around
the base of its antenna structure.
B. Proposed Forfeiture Amount and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to maintain
AM transmission system fencing requirements is $7,000. 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 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. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Wagenvoord is apparently liable for a
forfeiture in the amount of $7,000.
7. We direct Wagenvoord to submit a written statement, pursuant to
Section 1.16 of the Rules, in addition to any statement it might
submit pursuant to paragraph 9, signed under penalty of perjury by an
officer or director of Wagenvoord, stating that the Station's antenna
structure complies with the Commission's fencing rules and is enclosed
by an effective locked fence or other enclosure. This statement must
be provided to the New Orleans Office at the address listed in
paragraph 10 within thirty (30) calendar days of the release date of
this NAL.
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 of the Commission's rules, Wagenvoord
Advertising Group, Inc. is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of seven thousand dollars ($7,000)
for violation of Section 73.49 of the Rules.
9. 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 and Order,
Wagenvoord Advertising Group, Inc., SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10. IT IS FURTHER ORDERED that Wagenvoord Advertising Group, Inc. SHALL
SUBMIT a written statement, as described in paragraph 7, 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, South Central
Region, New Orleans Office, 2424 Edenborn Avenue, Suite 460,
Metairie, LA 70001. Wagenvoord Advertising Group, Inc. shall also
e-mail the written statement to SCR-Response@fcc.gov.
11. 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. Wagenvoord Advertising Group, Inc. will also
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. 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.
* 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.
12. 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. 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.
13. 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 Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, New Orleans Office, 2424 Edenborn Avenue, Suite 460,
Metairie, LA 70001, and include the NAL/Acct. No. referenced in the
caption. Wagenvoord Advertising Group, Inc. also shall email the
written response to SCR-Response@fcc.gov.
14. 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.
15. 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 Wagenvoord Advertising
Group, Inc. at 2360 NE Coachman Rd., Clearwater, FL 33765.
FEDERAL COMMUNICATIONS COMMISSION
Walter Gernon
District Director
New Orleans Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 73.49.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
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 . . . .").
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).
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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 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.
47 C.F.R. S: 73.49.
Id.
See License File No. BR-20120118AAE.
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. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.49.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1152
Federal Communications Commission DA 12-1152