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


In the Matter of                 )    File No. EB-02-PA-118
                                )
WOYK, Inc.                       )    NAL/Acct. No. 200232400005
WOYK(AM)                         )
York, PA                         )    FRN 0005-0231-06


                  MEMORANDUM OPINION AND ORDER

   Adopted: July 18, 2003               Released: July 22, 2003

By the Chief, Enforcement Bureau:

                         I.   INTRODUCTION

       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 
violation.2

                          II.  BACKGROUND

       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.

                         III.   DISCUSSION

      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 
CANCELLED.

       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 
20005.

      
                         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, 
2002).
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).