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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-04-BF-018
M.B. Communications, Inc. ) NAL/Acct. No.
Penn Yan, New York ) FRN: 0000012005
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 25,
By the Resident Agent, Buffalo Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that M. B. Communications, Inc., licensee of
radio station WYLF, has apparently willfully and repeatedly
violated Sections 73.49, 73.1560(a)(1), and 73.1745(a) of the
Commission's Rules (the ``Rules'')1 by failing to enclose the
WYLF tower within an effective locked fence or other enclosure
and by operating with excessive power during daytime, postsunset
and nighttime hours We conclude that M.B. Communications, Inc.
is apparently liable for a forfeiture in the amount of eleven
thousand dollars ($11,000).
2. On February 2, 2004, the Commission's Buffalo Office
received an anonymous phone call stating that WYLF was operating
overpowered during nighttime operation. On February 4, 2004, an
agent of the Buffalo Office made field strength measurements
approximately 1.07 miles from the WYLF antenna at coordinates N
latitude 42 39 52, W longitude 076 06 00. The agent took
measurements for daytime and nighttime operation and determined
that the station was operating in excess of authorized levels for
both modes of operation. On February 9, the agent made field
strength measurements at 7:45 PM and monitored the station until
8:15 PM. During that time, the station did not reduce power to
the authorized nighttime level. The agent took additional
measurements on February 24, 2004 at 12:13 PM and confirmed that
the station was operating in excess of authorized levels during
3. On February 24, 2004, an agent from the Buffalo Office
visually inspected the WYLF antenna and tower enclosure. The
agent found that the gate to the enclosure was secured by a long-
cabled lock, but the amount of slack in the cable resulted in an
inadequately secured lock that allowed unimpeded access to the
tower. The agent also observed a space of at least eighteen (18)
inches between the bottom of the fence and the ground that
allowed unimpeded access to the live tower.
4. Section 73.49 of the Rules provides that ``[a]ntenna
towers having radio frequency potential at the base (series fed,
folded unipole, and insulated base antennas) must be enclosed
within effective locked fences or other enclosures.'' The Rules
regarding how to secure tower sites are intended to ensure that
the public is appropriately protected from any potential adverse
effects from RF exposure. As described above, an inadequately
secured lock on the gate and a gap between the bottom of the
fence and the ground allowed unimpeded entry to the tower.
5. Section 73.1560(a)(1) of the Rules provides that
``[e]xcept as provided for in paragraph (d) of this section, the
antenna input power of an AM station as determined by the
procedures specified in § 73.51 must be maintained as near as
practicable to the authorized antenna input power and may not be
less than 90 % or more than 105% of the authorized power.''
Measurements made on February 4, 2004, and February 9, 2004,
showed daytime operation at power levels of 115% to 123% of
6. Section 73.1745(a) of the Rules provides that ``[n]o
broadcast station shall operate at times, or with modes of power,
other than those specified and made a part of the license, unless
otherwise provided in this part.'' Measurements of station WYLF
on February 4, 9, and 24, 2004, along with operating parameter
entries in station logs dating back to December 2, 2002, showed
the station was operating at power levels of 115% to 2551% of
authorized power during daytime, postsunset, and nighttime
7. Based on the evidence before us, we find that M.B.
Communications, Inc. willfully2 and repeatedly3 violated Sections
73.49, 73.1560(a)(1),and 73.1745(a) of the Rules by failing to
enclose the WYLF tower within an effective locked fence or other
enclosure and failing to insure WYLF was operating at the
authorized modes of power specified and made part of the license.
8. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113
(1997), recon. denied, 15 FCC Rcd 303(1999) (``Forfeiture Policy
Statement''), and Section 1.80 of the Rules4, the base forfeiture
amount for AM tower fencing is $7,000 and the base forfeiture
amount for exceeding power limits is $4,000. 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, as amended5 (``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. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, an eleven thousand dollar ($11,000) monetary forfeiture is
9. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act6, and Sections 0.111, 0.311 and 1.80 of the
Rules7, M.B. Communications Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of eleven
thousand dollars ($11,000) for willful and repeated violations of
Sections 73.49, 73.1560(a)(1), and73.1745(a) of the Rules.
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, M.B. Communications, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
10. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
11. Any response to this NAL must be mailed to Federal
Communications Commission, Buffalo Office, 1307 Federal Building,
111 West Huron Street, Buffalo, New York 14202, and MUST INCLUDE
THE NAL/Acct. No. referenced above.
12. 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
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
14. 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 address listed above for the
filing of the response. 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by Certified Mail
Return Receipt Requested to M.B. Communications, Inc., 100 Main
Street, Penn Yan, New York 14527.
Gene J. Stanbro
Attachment A - FCC List of Small Entities, October 2002
1 47 C.F.R. §§ 73.49, 73.1560(a)(1), and 73.1745(a).
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.
447 C.F.R. § 1.80.
47 U.S.C. § 503(b)(2)(D).
47 U.S.C. § 503(b).
747 C.F.R. §§ 0.111 and 0.311.
8 See 47 C.F.R. § 1.1914.