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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Radio Plus, Inc.
) File No.: EB-07-CG-139
Licensees of AM Station
WFDL ) NAL/Acct. No.: 200732320002
Waupun, Wisconsin ) FRN: 0006949911
Facility ID No. 42092 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 27, 2007
By the District Director, Chicago Field Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Radio Plus, Inc., licensee of AM radio station WFDL in Waupun,
Wisconsin, apparently willfully and repeatedly violated Section 73.49
of the Commission's Rules ("Rules") by failing to enclose the WFDL
antenna tower within an effective locked fence or other enclosures. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Radio Plus, Inc. is apparently liable
for a forfeiture in the amount of seven thousand dollars ($7,000).
2. On February 6, 2007, an agent from the Enforcement Bureau's Chicago
Field Office conducted an inspection of the AM antenna tower used by
Radio Plus, Inc. to broadcast AM station WFDL. The WFDL antenna tower
is series fed and, therefore, required to be fenced. Upon inspection
of the WFDL antenna tower, the agent found that the wooden fence
surrounding the tower was in poor condition. The top of the fence had
pieces missing and the gate had missing and broken wooden slats that
left a gap in the gate large enough for a child or adult to enter the
tower site. In addition, during the inspection, the agent found that
the fence gate was open and did not have a lock. The antenna site,
located in Waupun, Wisconsin, is approximately 1300 feet northeast of
Waupun Middle School and sports field. The agent also noted that
there was no perimeter fence surrounding the property upon which the
antenna structure was sited to prevent the public from accessing the
3. On February 6, 2007, the agent advised the Chief Operator and the
General Manager of WFDL of the lack of an effectively locked enclosure
surrounding the base of the WFDL tower. The Chief Operator and
General Manager acknowledged the condition of the fence. They provided
a copy of a proposal, dated September 17, 2006, to replace the tower
4. 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) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. Section 73.49 of the Rules states 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. The WFDL AM antenna tower is series fed.
In adopting the Report and Order promulgating the most recent
amendment of Section 73.49, the Commission stated that "a fencing
requirement is necessary to protect the general public." The Chicago
agent's inspections on February 6, 2007, revealed no locked fence or
effective barrier surrounding the base of the WFDL tower. The chief
operator of WFDL acknowledged the lack of effective fencing to the
agent; therefore, the violation was willful. The violation occurred on
more than one day, therefore it was repeated. Based on the evidence
before us, we find that Radio Plus Inc. apparently willfully and
repeatedly violated Section 73.49 of the Rules by failing to enclose
the WFDL AM antenna tower within an effective locked fence or other
6. 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 amount for failure to maintain an effective AM tower fence is
seven thousand dollars, $7,000. 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. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude Radio Plus Inc.
is apparently liable for a seven thousand dollar ($7,000) forfeiture.
IV. ORDERING CLAUSES
7. 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, Radio Plus Inc. is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand dollars ($7,000) for violation of Section 73.49 of the Rules.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Radio Plus Inc., SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
9. 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, Pittsburg, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
10. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Chicago Field
Office, 1550 North Northwest Highway, Suite 306, Park Ridge, Illinois
60068 and must include the NAL/Acct. No. referenced in the caption.
11. 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.
12. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director-Financial Operations, Room 1A625, 445 12th
Street, S.W., Washington, D.C. 20554.
13. 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 Radio Plus Inc. at their address of
FEDERAL COMMUNICATIONS COMMISSION
James M. Roop
47 C.F.R. S: 73.49.
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 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."
47 C.F.R. S: 73.49.
Review of the Technical an Operational Regulations of Part 73, Subpart A,
AM Broadcast Stations, 59 Rad. Reg. 2d (Pike & Fischer) 927, P:6 (1986)
("Report and Order").
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(D).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80, 73.49.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission