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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
C.W.H. Broadcasting, Inc. ) File No. EB-01-
Licensee of WHNY(AM) ) NAL/Acct. No.
McComb, Mississippi ) FRN: 0006-3820-48
Adopted: March 11, 2002 Released: March 13,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand five
hundred dollars ($3,500) to C.W.H. Broadcasting, Inc.
(``C.W.H. Broadcasting''), licensee of Station WHNY(AM), for
willfully violating Sections 17.4(a)(2), 17.51(a), and 73.49
of the Commission's Rules (``Rules'').1 The noted
violations involve C.W.H. Broadcasting's failures to
register WHNY(AM)'s three antenna structures; exhibit red
obstruction lighting on those antenna structures; and
enclose one of those antenna structures within an effective
locked fence or other enclosure.
2. On October 24, 2001, the District Director of the
Commission's New Orleans, Louisiana Field Office issued a
$20,000 Notice of Apparent Liability for Forfeiture
(``NAL'') to C.W.H. Broadcasting.2 On November 21, 2001,
C.W.H. Broadcasting filed a response to the NAL. We assess
a $3,500 forfeiture based on C.W.H. Broadcasting's
demonstrated inability to pay the originally proposed
3. This NAL arose from a complaint that WHNY(AM)'s
antenna structures were not lit. Following the complaint,
an agent from the New Orleans Field Office reviewed
WHNY(AM)'s license and determined that its antenna
structures were subject to the painting, lighting, and
registration requirements of Part 17 of the Rules. The
agent's search of the FCC's antenna structure registration
database revealed that C.W.H. Broadcasting had not
registered the antenna structures as required. On March 16,
2001, agents from the New Orleans Field Office visited
WHNY(AM) and saw that the gate to the fence enclosing the
``south'' antenna structure was unlocked and standing open.
Additionally, three days later, on March 19, 2001, after the
sun had set, an agent saw that none of WHNY(AM)'s antenna
structures had operating lights.
4. On March 20, 2001, an agent met with WHNY(AM)'s
owner and discussed the violations at issue here.
Subsequently, on March 29, 2001, the agent issued a Notice
of Violation (``NOV'') to C.W.H. Broadcasting, which
included the violations noted in the subject NAL. C.W.H.
Broadcasting responded on April 24, 2001, asserting, among
other things, that it was acting to obtain antenna structure
registration numbers and to fix the light outages. C.W.H.
Broadcasting also stated that it had purchased a new lock
and had locked the fence around the ``south'' antenna
structure. In a Continuation of NOV that the agent issued
on April 26, 2001, he asked C.W.H. Broadcasting to provide
him with copies of its antenna structure registration
applications (and copies of registrations once obtained) and
to notify him when C.W.H. Broadcasting fixed its light
outages. C.W.H. Broadcasting did not respond to the
Continuation of NOV. Subsequently, on October 24, 2001, the
District Director of the New Orleans Field Office issued the
5. In its response to the NAL, C.W.H. Broadcasting
does not contest any of the violations cited in the NAL.
Instead, C.W.H. Broadcasting asks us to cancel the proposed
$20,000 forfeiture based on its purported 50-year history of
overall compliance with the Rules and its alleged inability
to pay that amount. To support the latter point, C.W.H.
Broadcasting supplies us with copies of its U.S. income tax
returns for the years 1998-2000. Providing additional
context, C.W.H. Broadcasting tells us that it assumed that
its contract engineer and small office staff would keep
WHNY(AM) in compliance with the Rules, and was disappointed
to learn that it had misplaced its reliance in them.
According to C.W.H. Broadcasting, the death of a WHNY(AM)
general manager in July of 2000 further exacerbated
WHNY(AM)'s compliance status. C.W.H. Broadcasting states
that it did not hire a replacement general manager until
March of 2001. Despite its staffing issues, C.W.H.
Broadcasting mentions that it took ``immediate corrective
measures'' to address the outstanding violations.
6. C.W.H. Broadcasting states that the same person
has owned WHNY(AM) for the last 50 years. During that
time, the owner does not recall receiving ``citations for
technical violations of any type.'' Our search of FCC
records reveals that the station has been cited for
technical violations on at least two previous occasions.
Specifically, on February 13, 1981, the New Orleans Field
Office issued a NOV to WHNY(AM) for four technical
violations of the Rules. Approximately ten years later, on
April 24, 1991, the New Orleans Field Office issued a NAL to
WHNY(AM) for three technical violations of the Rules, two of
which related to the painting and lighting of WHNY(AM)'s
towers. Thus, we find that the record does not support
C.W.H. Broadcasting's claim that it has not been the subject
of FCC enforcement action for technical violations in the
past 50 years. Accordingly, we find that CWH Broadcasting's
compliance record does not provide a basis to reduce the
7. Although other factors can be considered, the best
indication of a company's ability to pay a forfeiture is its
gross receipts.3 After reviewing C.W.H. Broadcasting's
financial information, we find evidence that would support a
financial hardship-based reduction of the $20,000 proposed
forfeiture amount to $3,500.
8. With respect to WHNY(AM)'s staffing issues, we
cite to the FCC's long-held position that licensees are
responsible for their agents' acts and omissions.4 Turning
to WHNY(AM)'s claim of remedial action, we cite to another
well-established FCC position: remedial action, although
commendable, will not nullify a forfeiture penalty.5
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended
(``Act''),6 and Sections 0.111, 0.311, and 1.80(f)(4) of the
Rules,7 C.W.H. Broadcasting, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $3,500 for willfully violating
Sections 17.4(a)(2), 17.51(a), and 73.49 of the Rules.
10. Payment of the forfeiture shall be made in the
manner provided for in Section 1.808 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.9 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 note ``NAL/Acct. No.
200232620001'' and ``FRN: 0006-3820-48'' referenced above.
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. 20554.10
11. IT IS FURTHER ORDERED that a copy of this Order
shall by sent by certified mail, return receipt requested,
to M. Scott Johnson, Esq., Gardner, Carton & Douglas, 1301 K
Street, N.W., Suite 900, East Tower, Washington, D.C. 20005
and to C.W.H. Broadcasting, Inc., P.O. Box 1223, McComb,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 17.4(a)(2), 17.51(a), 73.49.
2 C.W.H. Broadcasting, Inc., NAL/Acct. No. 200232620001
(Enf. Bur., New Orleans Office, rel. Oct. 24, 2001). This
NAL was first issued NAL/Acct. No. ``200132620006,'' which
the District Director subsequently corrected to its present
NAL/Acct. No. of ``200232620001.''
3 See PJB Communications, 7 FCC Rcd 2088, 2089 (1992).
4 See Liability of Sundial Broadcasting Corp., 30 FCC 2d 949
5 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.