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                            Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                        )
                              )
Fenix Broadcasting, Corp.               )    File  No.  EB-02-TP-
207
WWFE, 670 kHz                 )    NAL/Acct. No.: 200232700008
Miami, Florida                          )    FRN: 0006-1648-67           
             
                                
           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                   Released: May 7, 2002  

By the Enforcement Bureau, Tampa Office:

                        I.   Introduction

     1.  In this Notice of Apparent Liability for Forfeiture,  we 
find that  Fenix  Broadcasting  Corp.  (``Fenix''),  licensee  of 
WWFE(AM) in  Miami, Florida,  apparently violated  the  following 
Sections of  the  Federal Communications  Commission's  (``FCC'') 
Rules:  11.35(a)  (failure to  have operational  Emergency  Alert 
System (``EAS'')  equipment);  17.51  (failure to  exhibit  tower 
lights from  sunset to  sunrise);and  73.49 (failure  to  enclose 
antenna towers  having  radio  frequency potential  at  the  base 
within effective locked enclosures).1``''  We conclude that Fenix 
is apparently liable for a forfeiture in the amount of twenty one 
thousand dollars ($21,000).

                      II.       Background

     2.    On March  28, 2002,  agents from  the FCC  Enforcement 
Bureau's Miami and Tampa Offices inspected radio station WWFE  in 
Miami, Florida.  The agents found the EAS equipment mounted in an 
equipment  rack  at  the  studio   but  the  equipment  was   not 
operational.  A review  of the  station logs  showed no  evidence 
that WWFE had ever conducted any  type of EAS tests, nor did  the 
logs have any entry regarding the operation or repair of the  EAS 
equipment.  

              3.    Still on March 28, 2002, the agents inspected 
the WWFE  transmitter  site and  antenna  tower array  in  Miami, 
Florida.  None of the six  AM antenna towers was enclosed  within 
an effective locked fence or other enclosure.  A perimeter  fence 
did surround a  portion of  the transmitter  site containing  the 
towers, however, the fence did not enclose the area in the  front 
of the  property, thus  allowing unimpeded  access to  the  tower 
bases.

     4.   Still  on  March 28,  2002,  after sunset,  the  agents 
returned to  the tower  site and  observed only  one of  the  six 
towers properly lighted.  A review of the station logs during the 
inspection earlier  in the  day revealed  no entry  of any  light 
outage or  lighting system  problem.   Also, the  station  owners 
stated  during  the  inspection  that  they  had  experienced  no 
problems with  the  tower  lighting  system  or  automatic  alarm 
system.   The  agents  contacted   the  local  Federal   Aviation 
Administration Flight Service Station and determined that no  one 
reported a tower light outage for any of WWFE's towers.

                           II.  Discussion
                                   
     5.    Section  11.35(a)  of  the  Rules  requires  broadcast 
stations to ensure that  EAS equipment is  installed so that  the 
monitoring and transmitting  functions are  available during  the 
times the station is in  operation.2  At the time of  inspection, 
the EAS equipment was not  operational.  The station logs  showed 
no evidence that the equipment had been taken out of service  for 
repair nor that tests had ever been made.

     6.   Section 17.51 requires tower lighting be exhibited from 
sunset to sunrise.3  Fenix failed to exhibit the required  lights 
on the WWFE towers after sunset on March 28, 2002.

     7.  Section  73.49 requires  that antenna  towers that  have 
radio  frequency  potential  at  the  base  be  enclosed   within 
effective locked  fences or  other enclosures.4   WWFE's  antenna 
tower array  was not  securely enclosed  thus allowing  unimpeded 
access by the general public to the tower bases.

     8.  Based on the evidence before  us, we find that on  March 
28, 2002, Fenix willfully5 violated Sections 11.35(a), 17.51  and 
73.49 of  the  Rules6  by  failing  to  provide  operational  EAS 
equipment,  failing  to  light  its  towers  between  sunset  and 
sunrise, and failing to enclose  towers with an effective  locked 
enclosure.

     9.   Pursuant to Section 1.80(b)(4)  of the Rules, the  base 
forfeiture amounts for the violations  cited in this Notice  are:  
$8,000 for non-operational EAS equipment; $10,000 for failure  to 
comply with prescribed tower lighting; and $7,000 for failure  to 
enclose antenna tower  bases.7  Section 503(b)(2)(D)  of the  Act 
requires the Commission to consider ``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``''  Regarding the EAS violation, because WWFE shared 
EAS  equipment  with  co-located  station  WRHC(AM),  a  downward 
adjustment of  the  forfeiture  amount  to  $4,000  for  the  EAS 
violation  is  warranted.   Considering  the  entire  record  and 
applying the statutory factors listed above, this case warrants a 
$21,000 forfeiture.

                      IV.  Ordering Clauses

     10.   Accordingly, IT IS  ORDERED THAT, pursuant to  Section 
503(b) of the  Act9 and  Sections 0.111,  0.311 and  1.80 of  the 
Rules,10 Fenix is hereby NOTIFIED of its APPARENT LIABILITY FOR A 
FORFEITURE in  the amount  of $21,000  for willful  violation  of  
Sections  11.35(a),  17.51  ,  and  73.49   of  the  Commission's 
Rules.11

     11.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Commission's Rules,12  within thirty days  of the release  of 
this NOTICE  OF  APPARENT LIABILITY,  Fenix  SHALL PAY  the  full 
amount of  the  proposed  forfeiture  or  SHALL  FILE  a  written 
statement seeking  reduction  or  cancellation  of  the  proposed 
forfeiture.

     12.   Payment of the forfeiture may  be made by 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 must note  the 
FRN and NAL/Acct. No. referenced in the letterhead above.

     13.  The  response,  if  any,  must  be  mailed  to  Federal 
Communications Commission,  Office  of the  Secretary,  445  12th 
Street, SW, Washington,  D.C.  20554,  Attn: Enforcement  Bureau-
Technical & Public Safety Division, and must include the FRN  and 
NAL/Acct. No. referenced in the letterhead above.

     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.  Requests for payment of the full amount of this  Notice 
of Apparent Liability  under an installment  plan should be  sent 
to:  Federal  Communications   Commission,  Chief,  Revenue   and 
Receivables Operations Group,  445 12th  Street, SW,  Washington, 
D.C. 20554.13

     16.   IT IS FURTHER ORDERED THAT this notice shall be  sent, 
by  certified   mail,   return  receipt   requested,   to   Fenix 
Broadcasting, Corp., 330  S.W. 27th Avenue  #207, Miami,  Florida 
33135.

                              FEDERAL COMMUNICATIONS COMMISSION



                              Ralph M. Barlow
                              District Director
  

 


_________________________

1 47 C.F.R.  11.35(a), 17.51, and 73.49
2 47 C.F.R.  11.35(a)
3 47 C.F.R.  17.51
4 47 C.F.R.  73.49
5 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies equally to 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).
6 47 C.F.R.  11.35(a), 17.51, and 73.49
7 47 C.F.R.  1.80(b)(4)
8 47 U.S.C. 503(b)(2)(D)
9 47 U.S.C.  503(b)
10 47 C.F.R.  0.111, 0.311, and 1.80.
11 47 C.F.R.  11.35(a), 17.51, and 73.49
12 47 C.F.R.  1.80
13 See 47 C.F.R.  1.1914