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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-PA-118
WOYK, Inc. ) NAL/Acct. No. 200232400005
York, PA ) FRN 0005-0231-06
MEMORANDUM OPINION AND ORDER
Adopted: July 18, 2003 Released: July 22, 2003
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
cancel a proposed monetary forfeiture in the amount of seven
thousand dollars ($7,000), issued to WOYK, Inc., (``WOYK''),
licensee of Station WOYK(AM), for its apparent willful violation
of Section 73.49 of the Commission's Rules (``Rules'').1 The
noted violation involves WOYK's apparent failure to maintain an
adequate tower fence enclosure.
2. On July 17, 2002, the Commission's Philadelphia,
Pennsylvania Field Office (``Philadelphia Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') in the
amount of seven thousand dollars ($7,000) to WOYK for the noted
3. On March 8, 2002, an agent from the Philadelphia Office
inspected the three-tower array of WOYK(AM) in York,
Pennsylvania. The agent observed that the middle tower (antenna
structure registration number 1029250) was not enclosed within
an effective locked fence. The agent determined that the middle
tower could be accessed through an opening in the fence created
when a portion of the fence fell off a warped fence post.
4. On July 17, 2002, the Philadelphia Office issued a NAL
in the amount of $7,000 to WOYK for failure to maintain an
adequate tower fence enclosure in willful violation of Section
73.49 of the Rules. In its response to the NAL, WOYK requests
rescission or reduction of the proposed forfeiture amount. The
licensee asserts that the fence is a five to six foot wooden
stockade, and consists of sections nailed to fence posts at the
top, middle, and bottom. According to the licensee, the fence
section at issue did not fall off the fence post, but rather was
secured to the middle and bottom of the fence post and only fell
away from the top of the fence post creating a gap of
approximately six to twelve inches in the fence. Furthermore,
WOYK asserts that because only the top portion of the fence
section fell away, it would have been virtually impossible for
anyone to access the tower without either breaking down the fence
or climbing over it. WOYK states that it repaired the fence by
securing the top of the fence section to the fence post in the
same manner as it was at the middle and bottom. The response is
supported by a declaration from WOYK's president submitted under
penalty of perjury.
5. WOYK states that the fence was repaired less than 24
hours after it was notified that the fence needed repair.
Further, WOYK contends that because the Philadelphia Office did
not send it a Notice of Violation regarding this matter, it never
had an opportunity, pursuant to Section 503(b)(2)(D) of the
Communications Act of 1934 as amended3 (``Act''), to speak to the
nature, circumstances, extent or gravity of the violation. WOYK
also contends that although the base forfeiture amount for a
violation of AM tower fencing is $7,000, this is not a situation
in which the licensee had no fence or a partial fence. WOYK
argues that in this case, the violation was minor in that there
was a slight gap in the fence which was almost immediately
repaired and posed no danger to the public or the environment.
The licensee also claims that during the inspection, the agent
only mentioned the fence ``in passing'' and never inquired again
about the fence or returned to the station to reinspect the
fence. For these reasons, the licensee contends that the
forfeiture should be rescinded or reduced.
6.The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the 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). In examining WOYK'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 may require.6
7.Section 73.49 of the Rules states that antenna towers
having radio frequency potential at the base ``must be enclosed
within effective locked fences or other enclosures.''7 WOYK
submitted a signed declaration from its president, who repaired
the fence, stating that the fence section at issue is generally
secured to the fence post at the top, middle, and bottom, and
that the fence section referred to in the NAL only fell away from
the top, creating a six to twelve inch gap, but that the fence
section remained secured to the fence post at the middle and
bottom. WOYK admits that the fence may have been in some minor
disrepair but argues that it would have been virtually impossible
to access the tower without climbing over the fence or breaking
it down. After reviewing the record before us, we conclude that
there is not enough evidence to support a finding that WOYK
failed to maintain an effective locked fence in violation of
Section 73.49. Consequently, we cancel the NAL.8
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
504(b) of the Act,9 and Sections 0.111, 0.311, and 1.80(f)(4) of
the Rules,10 the forfeiture in the amount of seven thousand
dollars ($7,000) proposed in the July 17, 2002 NAL issued to WOYK
for failure to maintain an adequate tower fence enclosure IS
9. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail, Return Receipt Requested, to WOYK,
Inc., 1360 Copenhaffer Road, York, Pennsylvania, 17404, and to
its counsel, Allan G. Moskowitz, Esq., Kaye Scholer LLP, The
McPherson Building, 901 Fifteenth Street, NW, Washington DC
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 73.49.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232400005 (Enf. Bur., Philadelphia Office, released July 17,
3 47 U.S.C. § 503(b)(2)(D).
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 73.49.
8 In light of our finding above, we need not reach a
determination on WOYK's remaining arguments; however, in response
to WOYK's argument that it had no opportunity to address the
nature, circumstances, extent or gravity of the violation prior
to the issuance of the NAL, we note that neither Section 503(b)
of the Act nor Section 1.80 of the Rules require the Commission
to issue a Notice of Violation prior to the issuance of a NAL.
Moreover, consistent with Section 1.80(f)(3) of the Rules WOYK
has been afforded an opportunity to submit a response to the NAL
addressing the nature, circumstances, extent or gravity of the
violation, which it has done.
9 47 U.S.C. § 504(b)
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).