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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-AT-316
Marshall County Radio Corp. ) NAL/Acct. No. 200332480002
Licensee of AM Radio Station )
WAXO ) FRN 0003-7254-88
Lewisburg, Tennessee )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 5, 2002
By the Enforcement Bureau, Atlanta Office:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Marshall County Radio Corp., licensee of AM
radio station WAXO, Lewisburg, Tennessee, apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000) for
willful and repeated violation of Section 73.49 of the
Commission's Rules (``Rules'').1 Specifically, we find Marshall
County Radio Corp. apparently liable for failing to enclose its
antenna tower within an effective locked fence or other
2. On August 8, 2002, an agent from the FCC Enforcement
Bureau's Atlanta Field Office inspected the antenna tower of
radio station WAXO(AM), Lewisburg, Tennessee. The agent observed
that the gate around the antenna tower was not locked. The
antenna tower had radio frequency potential at the base.
3. On October 1, 2002, the agent telephoned station WAXO to
speak with Marshall County Radio Corp.'s President and General
Manager Bob Smartt. Mr. Smartt was not in, and the agent left a
message regarding the unlocked base fencing. On October 2, 2002,
Mr. Smartt returned the agent's call and stated that he had been
aware of the unlocked fence but had not taken action to secure
the fence until after the agent's October 1, 2002, telephone
3. Section 73.49 of the Rules requires that antenna towers
having radio frequency potential at the base be enclosed within
effective locked fences or other enclosures. From August 8,
2002, until October 1, 2002, WAXO's antenna tower was not
enclosed within an effective locked fence or other enclosure.
4. Based on the evidence before us, we find that Marshall
County Radio Corp. willfully2 and repeatedly3 violated Section
73.49 of the Rules by failing to provide an effective locked
fence or other enclosure around its antenna tower.
5. Pursuant to Section 1.80(b)(4) of the Rules, the base
forfeiture amount for AM tower fencing violations is $7,000.4 In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D)
of the Communications Act of 1934, as amended (``Act''), which
include 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.5 Considering the
entire record and applying the factors listed above, this case
warrants a $7,000 forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,6 and Sections 0.111, 0.311 and 1.80 of the
Rules,7 Marshall County Radio Corp., is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand dollars ($7,000) for willful and repeated violation of
Section 73.49 of the Rules by failing to provide an effective
locked fence for its antenna tower.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty
days of the release date of this NAL, Marshall County Radio Corp.
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to
the order of the Federal Communications Commission, to the
Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. and FRN referenced above. Request for payment of
the full amount of this NAL under an installment plan should be
sent to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. referenced above.
10. 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.
11. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
12. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Marshall County Radio Corp., 217 W. Commerce St., Lewisburg,
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
District Director, Atlanta Office
1 47 C.F.R. § 73.49.
Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful,'
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act ....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
3 The 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.'' 47 U.S.C. §
4 47 C.F.R. § 1.80(b)(4).
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.