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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Truth Broadcasting Corporation ) File No. EB-01-NF-286
) NAL/Acct. No. 200232640004
Licensee of Station WTOB(AM) ) FRN 0004-9851-49
Winston-Salem, North Carolina )
Adopted: November 26, 2002 Released: December 2,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand eight
hundred dollars ($8,800) to Truth Broadcasting Corporation
(``Truth''), licensee of Station WTOB(AM), Winston-Salem,
North Carolina, for willful and repeated violation of Sections
73.49 and 73.1350(a) of the Commission's Rules (``Rules'').1
The noted violations involve Truth's failure to enclose three
of its antenna structures within an effective locked fence or
other enclosure, and failure to operate in accordance with the
terms of the station authorization in that Station WTOB(AM)
exceeded authorized field strength limits.
2. On June 12, 2002, the Commission's Norfolk, Virginia
Resident Agent Office (``Norfolk Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Truth for a
forfeiture in the amount of eleven thousand two hundred
dollars ($11,200).2 Truth filed a response to the NAL on July
3. On January 22 and 23, 2002, in response to a complaint
alleging that WTOB was operating with excessive power at
night, an agent from the Norfolk Office inspected the six
antenna structures that Truth owns and uses for WTOB. On both
occasions, the agent observed that the wooden base fencing
around each tower and observed that numerous wooden fence
boards were either broken or missing on three of the towers,
allowing access to the tower bases. Further, the station
authorization for WTOB limits the station's nighttime power
level by specifying field strength limits at nine monitoring
points. The agent took field strength measurements at two of
the nine monitoring points and found that the field strength
levels exceeded the limits specified in the station
authorization by at least 15 percent.
4. On June 12, 2002, the Norfolk Office issued an NAL
finding Truth apparently liable for a forfeiture for willfully
and repeatedly violating Sections 73.49 and 73.1350(a) of the
Rules by failing to maintain effective antenna tower base
fencing and exceeding authorized field strength limits on
January 22 and 23, 2002.3 The Norfolk Office noted that the
base forfeiture amounts for these violations are $7,000 for
failure to comply with AM fencing requirements and $4,000 for
failure to comply with power limits. However, taking into
account Truth's history of compliance with the Commission's
rules, the Norfolk Office reduced the proposed forfeiture for
failure to comply with AM fencing requirements from $7,000 to
$5,600 and reduced the proposed forfeiture for exceeding
authorized field strength limits from $4,000 to $3,200. On
July 12, 2002, Truth filed a response to the NAL. In its
response, Truth does not dispute that it failed to operate
WTOB in accordance with the terms of the station authorization
in violation of Section 73.1350(a) or seek reduction of the
$3,200 forfeiture proposed in the NAL for this violation.
However, Truth argues that the $5,600 forfeiture proposed for
failure to comply with AM fencing requirements should be
substantially reduced, if not eliminated entirely.
5. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),4 Section 1.80 of the Rules,5 and
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Truth's
response, Section 503(b) of the Act requires that the
Commission take into account 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
6. Section 73.49 of the Rules provides that antenna towers
having radiofrequency potential at the base must be enclosed
within effective locked fences or other enclosures. On
January 22 and 23, 2002, an FCC agent observed that numerous
wooden fence boards were either broken or missing on three of
Truth's six antenna towers, allowing access to the tower
bases. Truth acknowledges that numerous boards on its fences
were either broken or missing at the time of the inspections.
Truth argues, however, that the $5,600 forfeiture proposed in
the NAL (adjusted downward from $7,000 to reflect Truth's
history of compliance) for its failure to comply with AM
fencing requirements should be substantially reduced, if not
eliminated entirely. Truth states that its tower fences were
in place and locked and that the NAL only found that fence
boards were broken or missing, creating gaps in what are
otherwise adequate locked fences. Truth also provides a sworn
statement from its contract engineer, who states that he fully
inspects the WTOB transmitter site on a periodic basis and
that he saw no broken or missing boards on the fences in his
inspection of the site in November 2001, about two months
prior to the FCC's inspection. The engineer further states
that vandals have caused damage to the site in the past and
that he believes that trespassing vandals caused the damage
observed by the FCC agent. Truth submits that the $7,000 base
forfeiture amount for AM fencing violations would apply in
situations where the tower owner installs inherently
inadequate fences or negligently leaves fences unlocked, not
in situations such as this where the damage is caused by
vandals. Finally, Truth asserts that it is increasing the
frequency of its transmitter site inspections so that it will
in the future detect and repair damage sooner after it occurs.
7. We conclude that Truth willfully and repeatedly
violated Section 73.49 of the Rules and that Truth has
presented no basis for cancellation or reduction of the
forfeiture proposed for this violation. We are not persuaded
by Truth's suggestion that a reduction of the proposed
forfeiture is warranted because the NAL only found that fence
boards were broken or missing. The condition of the fences
constituted a safety hazard because the fences were inadequate
to protect the public from possible contact with the radiating
antenna structures.7 Moreover, while Truth speculates that
trespassing vandals caused the damage to the fences, it
provides no evidence that the missing and broken fence boards
were in fact the result of vandalism, rather than neglect or
some other cause. Further, we do not think that Truth's
inspection of the transmitter site approximately two months
prior to the FCC's inspection warrants mitigation of the
forfeiture amount. Particularly where, as here, a licensee
claims that it has a history of vandalism to its transmitter
site and the site is in a residential area, we think that more
frequent inspections are required. Finally, regarding Truth's
assertion that it is now increasing the frequency of its
transmitter site inspections, the Commission has repeatedly
stated that remedial actions taken to correct a violation are
not mitigating factors warranting reduction of a forfeiture.8
8. Section 73.1350(a) of the Rules requires licensees to
maintain and operate a broadcast station in a manner that
complies with the technical rules and in accordance with the
terms of the station authorization. The station authorization
for WTOB limits the station's nighttime power by specifying
field strength limits at various monitoring points. Truth
does not dispute that on January 22 and 23, 2002, WTOB's field
strength exceeded authorized limits at two of the assigned
monitoring points. Accordingly, we conclude that Truth
willfully and repeatedly violated Section 73.1350(a) of the
Rules and that there is no basis for reduction of the $3,200
forfeiture proposed in the NAL for this violation (adjusted
downward from $4,000 to reflect Truth's history of
9. The NAL also found Truth apparently liable for a $2,400
forfeiture for failing to register its antenna structures in
willful and repeated violation of Section 17.4(a) of the
Rules. After considering Truth's response to the NAL, we are
persuaded that the proposed $2,400 forfeiture should be
10. We have examined Truth's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Truth willfully and repeatedly violated Sections
73.49 and 73.1350(a) of the Rules, and we find no basis to
rescind or reduce the forfeitures proposed for these
violations, which total $8,800. However, we cancel the $2,400
forfeiture proposed in the NAL for violation of Section
17.4(a) of the Rules.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,9 Truth Broadcasting Corporation IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eight thousand eight
hundred dollars ($8,800) for willful and repeated violations
of Sections 73.49 and 73.1350(a) of the Rules.
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.10 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232640004 and FRN
0004-9851-49. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to Truth Broadcasting Corporation, 3789 Will Scarlet
Road, Winston-Salem, North Carolina 27104, and to its counsel,
James P. Riley, Esq., Fletcher, Heald & Hildreth, P.L.C., 1300
North 17th Street, 11th Floor, Arlington, Virginia 22209-3801.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 73.49 and 73.1350(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232640004 (Enf. Bur., Norfolk Office, released June 12, 2002).
3 The NAL also found Truth apparently liable for a forfeiture
for failing to register its antenna structures in apparent
willful and repeated violation of Section 17.4(a) of the Rules,
47 C.F.R. § 17.4(a), and proposed a $2,400 forfeiture for this
violation (adjusted downward from the base forfeiture amount of
$3,000 to reflect Truth's history of compliance). As noted
below, we are canceling this forfeiture.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 See Culpeper Broadcasting Corporation, 15 FCC Rcd 12594
(Enf. Bur. 2000) (assessing a forfeiture for failure to maintain
an effective locked fence where several boards were missing,
creating a gap in the fence large enough to permit a person to
climb through the fence).
8 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 U.S.C. § 504(a).
11 See 47 C.F.R. § 1.1914.