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

In the Matter of                 )
                                 )
WSMN Broadcasting, LLC           )            File Number EB-04-
                                 ) BS-003
Licensee of Station WSMN         )
Nashua, New Hampshire            )            NAL/Acct. NO. 
Facility ID #  102               ) 200532260003

                                              FRN 0011401320



             NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                              Released:  Sept 28, 
                                                             2005

By the District Director, Boston Office, Northeast Region, 
Enforcement Bureau:

I.   INTRODUCTION

      1.  In this Notice of Apparent Liability for Forfeiture 
 ("NAL"), we find that WSMN Broadcasting, LLC, ("WSMN"), 
 licensee of AM station WSMN, in Nashua, New Hampshire, 
 apparently willfully and repeatedly violated Section 73.49 of 
 the Commission's Rules ("Rules")1 by failing to enclose one of 
 WSMN's three antenna structures within an effective locked 
 fence or other enclosure.  We conclude, pursuant to Section 
 503(b) of the Communications Act of 1934, as amended ("Act"),2 
 that WSMN is apparently liable for a forfeiture in the amount 
 of seven thousand dollars ($7,000).

II.  BACKGROUND

      2.  On May 12, 2004, an agent from the FCC Enforcement 
 Bureau's Boston Office inspected the three antenna structures 
 used by AM station WSMN, Nashua, New Hampshire.  The agent 
 observed that the fence around the west tower had a large gap 
 between two pickets and the fence on one side of the gap was 
 falling down.  The gap allowed access to the tower, which was 
 series fed and had radio frequency potential at its base.  The 
 agent also observed that there was extensive vegetative growth 
 around the base of the tower, including in the gap of the 
 fence.  The agent also found that the tower's tuning unit had 
 fallen and was upside down on the ground.  The antenna 
 structures were not protected by a property fence.

III.      DISCUSSION

      3.  Section 503(b) of the 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.  The term "willful" 
 as used in Section 503(b) of the Act has been interpreted to 
 mean simply that the acts or omissions are committed 
 knowingly.3  The term ``repeated'' means the commission or 
 omission of such act more than once or for more than one day.4 

      4.  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 
 within effective locked fences or other enclosures unless the 
 towers are contained within a protective property fence.  The 
 WSMN antenna structures are series fed and therefore must 
 comply with the fencing requirements for AM transmission 
 systems.  On May 12, 2004, an FCC agent observed that the fence 
 around the west tower had a gap allowing access to the tower 
 base. Conditions around the base of the tower, including the 
 vegetative growth in the fence gap, indicated that the gap in 
 the fence had existed for a considerable time.  In addition, 
 the tower was not protected by a property fence.  Based on this 
 evidence, we find that WSMN apparently willfully and repeatedly 
 violated Section 73.49 of the Rules by failing to enclose one 
 of its three antenna structures within an effective locked 
 fence or other enclosure.5

      5.  Pursuant to The Commission's Forfeiture Policy 
 Statement and Amendment of Section 1.80 of the Rules to 
 Incorporate the Forfeiture Guidelines ("Forfeiture Policy 
 Statement"), and Section 1.80 of the Rules, the base forfeiture 
 amount for AM tower fencing violations at Broadcast stations is 
 $7,000.6  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 Act, which include the nature, 
 circumstances, extent, and gravity of the violations, and with 
 respect to the violator, the degree of culpability, and history 
 of prior offenses, ability to pay, and other such matters as 
 justice may require.7  Applying the Forfeiture Policy 
 Statement, Section 1.80, and the statutory factors, a $7,000 
 forfeiture is warranted.
  
IV.  ORDERING CLAUSES

      6.  Accordingly, IT IS ORDERED that, pursuant to Section 
 503(b) of the Communications Act of 1934, as amended, and 
 Sections 0.111, 0.311 and 1.80 of the Commission's Rules, WSMN 
 Broadcasting, LLC is hereby NOTIFIED of this APPARENT LIABILITY 
 FOR A FORFEITURE in the amount of seven thousand dollars 
 ($7,000) for violations of Section 73.49 of the Rules.8

      7.  IT IS FURTHER ORDERED that, pursuant to Section 1.80 of 
 the Commission's Rules, within thirty (30) days of the release 
 date of this Notice of Apparent Liability for Forfeiture, WSMN 
 Broadcasting, LLC SHALL PAY the full amount of the proposed 
 forfeiture or SHALL FILE a written statement seeking reduction 
 or cancellation of the proposed forfeiture.

      8.  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 Federal Communications 
 Commission, P.O. Box 358340, Pittsburgh, PA  15251-8340.  
 Payment by overnight mail may be sent to Mellon Bank /LB 
 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. 
 Payment by wire transfer may be made to ABA Number 043000261, 
 receiving bank Mellon Bank and account number 911-6106.

      9.  The response, if any, must be mailed to Federal 
 Communications Commission, Enforcement Bureau, Northeast 
 Region, Boston Office, One Batterymarch Park, Quincy, MA 02169 
 within thirty (30) days from the release date of this Notice of 
 Apparent Liability for Forfeiture and must include the 
 NAL/Acct. No. referenced in the caption.  

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

      12.      IT IS FURTHER ORDERED that a copy of this Notice 
 of Apparent Liability for Forfeiture shall be sent by Certified 
 Mail, Return Receipt Requested, and regular mail, to WSMN 
 Broadcasting, LLC at its address of record. 


                              FEDERAL COMMUNICATIONS COMMISSION



                              Dennis V. Loria
                              District Director
                              Boston Office
                              Northeast Region
                              Enforcement Bureau

_________________________

147 C.F.R.  73.49.
247 U.S.C.  503(b).  
3Section 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 or any rule or regulation of the Commission authorized 
by this Act...."  See Southern California Broadcasting Co., 6 FCC 
Rcd 4387 (1991).
4Section 312(f)(2) of the Act, 47 U.S.C.  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.'' 
5We note that the fact that the antenna structure itself and the 
land on which the antenna structure is located apparently have 
been sold to Bonnette and Picard, LLC does not impact the 
violation at issue here because it is the licensee, not the owner 
of the antenna structure, that is responsible for maintaining AM 
transmission system fencing requirements.
612 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.
747 U.S.C.  503(b)(2)(D).
8See 47 C.F.R.  1.1914.
8See 47 C.F.R.  1.1914.