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


                                )
In the Matter of                   )         File No. EB-02-PA-
140
                                )
FBS Wireless Corporation        )       NAL/Acct.             No. 
200232400007
WFBS(AM)                        )
Berwick, Pennsylvania           )       FRN: 0006-7296-02
                                )          0006-7445-51


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                        Released: August 12, 2002

By the District Director, Philadelphia Office, Enforcement 
Bureau:


                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''), we find that  FBS Wireless Corporation (``FBS''),  the 
licensee  of  WFBS(AM),  Berwick,  Pennsylvania,  has  apparently 
violated  Sections  17.4(a),  17.  51(a),  and  73.  49  of   the 
Commission's Rules (the  ``Rules'').1  These violations  occurred 
as a  result of  FBS' failure  to register  the WFBS(AM)  antenna 
structure; failure  to exhibit  red obstruction  lighting on  the 
WFBS(AM) antenna structure; and  failure to enclose the  WFBS(AM) 
antenna structure with  an effective locked  fence.  We  conclude 
that FBS is apparently liable for  a forfeiture in the amount  of 
twenty thousand dollars ($20,000).

                         II.  BACKGROUND

     2.   On March  19,  2002  at 11:20  a.m.,  FCC  agent  David 
Dombrowski  of  the  Enforcement  Bureau's  Philadelphia   Office 
inspected the WFBS(AM) antenna structure.  During the inspection, 
the FCC agent requested Kevin Fennessy, the President of FBS,  to 
demonstrate that  the red  obstruction lighting  on the  WFBS(AM) 
antenna  structure  was   operating  properly.   However,   Kevin 
Fennessy responded that the red obstruction lighting has not been 
operational since  FBS acquired  the station  in February,  2000.  
The FCC agent also found that FBS failed to register the WFBS(AM) 
antenna structure with the  Commission and that  the gate to  the 
fence surrounding the WFBS(AM) antenna structure was unlocked.

     3.   On April  24, 2002  at approximately  9:00 a.m.,  agent 
Dombrowski re-inspected the  WFBS(AM) antenna structure.   During 
the inspection, the  FCC agent  found that  the WFBS(AM)  antenna 
structure was still  not registered with  the Commission and  the 
gate to the fence surrounding the WFBS(AM) antenna structure  was 
unlocked.

     4.   On May  20,  2002,  the Philadelphia  Office  issued  a 
Notice of Violation  to FBS Wireless  Corporation for failure  to 
register the WFBS(AM) antenna  structure with the Commission,  in 
violation of Section 17.4(g) of the Rules; failure to exhibit red 
obstruction  lighting  on  the  WFBS(AM)  antenna  structure,  in 
violation of  Section  17.51(a)  of the  Rules;  and  failure  to 
enclose the WFBS(AM) antenna  structure with an effective  locked 
fence, in violation of Section 73.49 of the Rules. 

     5.   On June 3, 2002, FBS submitted a response to the Notice 
of Violation  acknowledging that  the antenna  structure was  not 
registered with the Commission and that the obstruction  lighting 
on the WFBS(AM)  antenna structure had  not been operational  for 
ten years.  FBS stated that it would immediately take actions  to 
register  the  antenna  structure  and  repair  the   obstruction 
lighting.  However, FBS disputed that it is required to  register 
the  antenna   structure  with   the  Commission   and   maintain 
aeronautical marking  and  lighting.   FBS stated  that  when  it 
acquired the station the  previous licensee represented that  the 
antenna structure has an overall height above ground of 198  feet 
and does not require aeronautical marking and lighting. 

     6.   In the response, FBS  also acknowledged that the  fence 
was unlocked and  required improvements  to effectively  restrict 
access to the  WFBS(AM) antenna  structure.  FBS  stated that  it 
made repairs to the fence by closing the 10-inch gap between  the 
gate and the lock post, placing 10 '' of soil at the entrance  of 
the tower base and installing a new chain and lock.

                        III.  DISCUSSION

     7.   Section 17.4(a) of  the Rules  requires that  effective 
July 1,  1996, the  owner  of any  proposed or  existing  antenna 
structure that requires  notice of proposed  construction to  the 
Federal  Aviation  Administration  (``FAA'')  must  register  the 
structure with  the  Commission.  The  WFBS(AM)  license  BR-3502 
specifies  that  the  overall  height  of  the  WFBS(AM)  antenna 
structure  is  203  feet  above  ground.   Because  the   antenna 
structure has  an  overall height  greater  than 200  feet  above 
ground, it required a notice of proposed construction to the  FAA 
and registration  with  the Commission.   However,  the  WFBS(AM) 
antenna structure was unregistered from  at least March 19,  2002 
to June  17,  2002.   Although FBS  disputed  that  the  WFBS(AM) 
antenna structure has an overall height of 203 feet above  ground 
and requires registration with the Commission, it never  provided 
the Commission with any evidence to the contrary.  

     8.   Section 17.51(a)  of the  Rules requires  that all  red 
obstruction lighting shall  be exhibited from  sunset to  sunrise 
unless  otherwise  specified.    The  WFBS(AM)  license   BR-3502 
specifies that the  WFBS(AM) antenna structure  must exhibit  red 
obstruction lighting  at  night.   On March  19,  2002,  the  red 
obstruction lighting on  the WFBS(AM) antenna  structure was  not 
functioning.  FBS admitted  in its  response dated  June 3,  2002 
that the obstruction  lighting has not  been operational for  ten 
years. Although FBS disputed that the WFBS(AM) antenna  structure 
has an  overall height  of  203 feet  above ground  and  requires 
aeronautical  marking  and  lighting,   it  never  provided   the 
Commission with any evidence to the contrary. 

     9.   Section 73.49 of the Rules requires that antenna towers 
having radio frequency potential at the base (series fed,  folded 
unipole, and  insulated  base  antennas) must  be  enclosed  with 
effective locked fences or other  enclosures.  On March 19,  2002 
and April  24,  2002,  the  gate to  the  fence  surrounding  the 
WFBS(AM) antenna structure was unlocked. 

     10.  Based on  the  evidence before  us,  we find  that  FBS 
willfully2 and  repeatedly3  violated  Section  17.4(a),  Section 
17.51(a) and  73.49 of  the Rules.   The Commission's  Forfeiture 
Policy Statement and Amendment  of Section 1.80  of the Rules  to 
Incorporated the Forfeiture Guidelines,  12 FCC Rcd 17087,  17113 
(1997), recon. denied, 15 FCC Rcd 303(1999) (``Forfeiture  Policy 
Statement''),4 sets the base  forfeiture amount for FBS'  failure 
to exhibit red obstruction lighting at $10,000, for FBS'  failure 
to register the antenna structure  with the Commission at  $3,000 
and for FBS'  failure to  maintain an effective  locked fence  at 
$7,000.  In  assessing the  monetary forfeiture  amount, we  must 
take into  account the  statutory factors  set forth  in  Section 
503(b)(2)(D) of the Communications  Act of 1934,5 (the  ``Act''), 
as amended, 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.  Applying the 
Forfeiture Policy  Statement and  the  statutory factors  to  the 
instant case and applying  the inflation adjustments, we  believe 
that a twenty  thousand dollar ($20,000)  monetary forfeiture  is 
warranted.

                      IV.  ORDERING CLAUSES

     11.  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 FBS  Wireless  Corporation  is  hereby  NOTIFIED  of  its 
APPARENT LIABILITY  FOR  A FORFEITURE  in  the amount  of  twenty 
thousand dollars ($20,000) for failing to exhibit red obstruction 
lighting on the WFBS(AM)  antenna structure; failure to  register 
the WFBS(AM) antenna structure  with the Commission; and  failure 
to maintain an effective locked fence around the WFBS(AM) antenna 
structure. 

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

     13.  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. 200232400007 and FRN: 0006-7296-02/0006-7445-51.
     14.  The  response,  if  any,  must  be  mailed  to  Federal 
Communications  Commission,  Enforcement  Bureau,  Technical  and 
Public Safety Division, 445  12th Street, S.W., Washington,  D.C. 
20554 and MUST  INCLUDE THE NAL/Acct.  No. 200232400007 and  FRN: 
0006-7296-02/0006-7445-51.

     15.  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.

     16.  Requests for payment of the full amount of this  Notice 
of Apparent Liability  under an installment  plan should be  sent 
to: Chief,  Revenue and  Receivables Operations  Group, 445  12th 
Street, S.W., Washington, D.C. 20554.8

     17.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall  be  sent  by  Certified  Mail,  Return 
Receipt Requested, to FBS Wireless Corporation., 114 North Market 
Street, Berwick, Pennsylvania 18603. 


                                   FEDERAL         COMMUNICATIONS 
COMMISSION



                                   John E. Rahtes
                                   District Director
                                   Philadelphia Office
_________________________

1 47 C.F.R.  17.4(a), 17.51(a) and 73.49.

2 Section  312(f)(1) of  the Act,  47 U.S.C.   312(f)(1),  which 
applies 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).

3 Section  312(f)(2),  which  also  applies  to  Section  503(b), 
provides:  [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.
4
 47 C.F.R.  1.80.

5 47 U.S.C  503(b)(2)(D).

6 47 U.S.C  503(b).

7 47 C.F.R.  0.111 and 0.311.

8 See 47 C.F.R.  1.1914.