Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



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

In the Matter of                )
                                )
FBS Wireless Corporation.       )    File No. EB-02-PA-140
WFBS(AM)                        )
Berwick, Pennsylvania           )    NAL/Acct. No. 200232400007
                                )
                                )    FRN 0006-7296-02       

                        FORFEITURE ORDER 

Adopted:   October 16, 2003             Released:   October   20, 
2003

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
        monetary forfeiture  in  the amount  of  twenty  thousand 
        dollars ($20,000) to  FBS Wireless Corporation  (``FBS'') 
        for repeated violation of Sections 17.4(a), 17.51(a)  and 
        73.49 of  the Commission's  Rules (``Rules'')1  and  deny 
        FBS's request  for a  hearing upon  the forfeiture.   The 
        noted violations involve  FBS's failure  to register  and 
        light the antenna structure  for station WFBS(AM) and  to 
        enclose  that  antenna  structure  within  an   effective 
        locked fence.

     2.   On August  12,  2002,  the  Commission's  Philadelphia, 
        Pennsylvania,  Field  Office  (``Philadelphia   Office'') 
        released a Notice  of Apparent  Liability for  Forfeiture 
        (``NAL'') to  FBS  for  a forfeiture  in  the  amount  of 
        twenty  thousand  dollars  ($20,000).2   FBS  filed   its 
        response  to  the   NAL  on  September   16,  2002,   and 
        supplemented that response on February 3, 2003.

                         II.  BACKGROUND

     3.   FBS is the licensee of WFBS(AM), Berwick, Pennsylvania, 
        and owns that station's antenna structure.  On March  19, 
        2002, an  agent from  the Philadelphia  Office  inspected 
        WFBS's antenna  structure.   The  station's license  then 
        specified  that  the  station's  antenna  structure  must 
        exhibit red  obstruction  lighting at  night.   When  the 
        agent asked  Kevin Fennessey,  the president  of FBS,  to 
        demonstrate  the  antenna  structure's  red   obstruction 
        lighting,  Mr.   Fennessey   responded   that   the   red 
        obstruction lighting had not  been operational since  FBS 
        acquired the station  in February 2000.   The agent  also 
        observed that  the  gate  to the  fence  surrounding  the 
        antenna structure was unlocked.   In addition, the  agent 
        determined   that   the   antenna   structure   was   not 
        registered.

     4.   When the  agent reinspected  the antenna  structure  on 
        April 24, 2002, he  found that the antenna structure  was 
        still  unregistered  and  that  the  gate  to  the  fence 
        surrounding the antenna structure was still unlocked.   A 
        recent check of the FCC's Antenna Structure  Registration 
        data  base indicates  that  FBS  registered  the  antenna 
        structure on September 16, 2003.

     5.   On May  20,  2002,  the Philadelphia  Office  issued  a 
        Notice  of  Violation  (``NOV'')   to  FBS  for   various 
        violations of  the  Rules,  including  Sections  17.4(a), 
        17.51(a) and 73.49 --  failure to register and light  the 
        antenna structure  for  the  station and  to  enclose  it 
        within an effective locked fence. In its response to  the 
        NOV,  filed on  June  4,  2002,  FBS  admitted  that  its 
        antenna  structure was  unregistered  and  that  the  red 
        obstruction   lighting   had   been   extinguished    for 
        approximately 10 years.   However, FBS  also stated  that 
        the height of  the antenna ``was  in dispute'' and  ``had 
        been represented to us as 198  feet, not requiring . .  . 
        illumination . .  . .''  In  addition, FBS asserted  that 
        it had corrected the fencing violation.

     6.   On August 12,  2002, the Philadelphia  Office issued  a 
        NAL for a forfeiture in the amount of $20,000 to FBS  for 
        willful  and  repeated  violation  of  Sections  17.4(a), 
        17.51(a) and 73.49 of the Rules.  In its response,  filed 
        September  16,  2002,  FBS  seeks  cancellation  of   the 
        proposed monetary  forfeiture.  FBS  contends that  there 
        were no  willful  or  repeated violations  and  that  FBS 
        ``has diligently .  . .  worked hard  to remedy what  the 
        Enforcement Bureau  contends  that we  are  in  violation 
        of.''   FBS   also  contends   that  it   has   financial 
        difficulties  but   does   not  provide   any   financial 
        information.      Additionally,    FBS    requests     an 
        administrative hearing on the proposed forfeiture.

     7.   With a supplementary response, filed February 3,  2003, 
        FBS provided a copy of No Hazard determination issued  by 
        the FAA  on  December 11,  2002  (four months  after  the 
        NAL), which  indicates  that the  height of  the  antenna 
        structure is  200 feet  and that  ``marking and  lighting 
        are not necessary for  aviation safety.''  In its  letter 
        of February 20, 2003,  the Philadelphia Office  requested 
        that  FBS measure  the  antenna  structure  to  determine 
        whether it exceeds 200  feet above the ground.  On  March 
        3, 2003, FBS, through its contractor, D&L  Communications 
        Services, measured  the  antenna  structure's  height  as 
        199.5 feet.  This measurement,  however, did not  include 
        the concrete  base  of the  antenna structure.   The  FCC 
        agent   estimates   that    the   concrete   base    adds 
        approximately  3  feet  to  the  height  of  the  antenna 
        structure.

     8.   After the measurement, FBS applied for a new No  Hazard 
        determination.  On August 11, 2003, the FAA issued a  new 
        No Hazard determination  on the basis  of a tower  height 
        of 202 feet.  The  new No Hazard determination  indicates 
        that no painting  or lighting is  now required for  FBS's 
        antenna structure.

                      III.      DISCUSSION

     9.   The  proposed  forfeiture  amount  in  this  case   was 
        assessed  in  accordance  with  Section  503(b)  of   the 
        Communications  Act  of  1934,  as  amended   (``Act''),3 
        Section  1.80  of  the   Rules,4  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 
        FBS'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.5

     10.  Section 17.4(a) of the Rules requires the  registration 
        of  antenna  structures  which  require  notice  to   the 
        Federal Aviation Administration.  As provided in  Section 
        17.7(a) of the Rules,6  FAA notification is required  for 
        towers whose height above ground level exceeds 200  feet.  
        The  March 3,  2003,  measurement  establishes  that  the 
        height of FBS's  antenna structure  is approximately  202 
        1/2  feet  above  the  ground.   FBS  concedes  that  its 
        antenna structure was not registered. We find that  FBS's 
        antenna structure  was  unregistered from  the  time  FBS 
        acquired it in  February 2000 until  September 16,  2003.  
        Accordingly,  we  find  that  FBS  repeatedly7   violated 
        Section 17.4(a).8

     11.  As  indicated   above,  FBS's   license  required   red 
        obstruction lighting  for the  antenna structure  Section 
        17.51(a)  of the  Rules  requires  that  red  obstruction 
        lighting be exhibited  between sunset  and sunrise.   FBS 
        concedes that  the  antenna structure's  red  obstruction 
        lighting has not functioned for at least ten years.   The 
        FAA's August 11,  2003, No Hazard  determination was  not 
        in effect until that date (subsequent to the issuance  of 
        the  NAL).   We,  therefore,  find  that  FBS  repeatedly 
        violated Section 17.51(a).

     12.  Section 73.49 of  the Rules  requires the  owner of  an 
        antenna  structure to  enclose  it  within  an  effective 
        locked fence.  On the basis of the agent's  investigation 
        and  FBS's  admission,  we   find  that  FBS   repeatedly 
        violated Section 73.49.

     13.  FBS also argues that  it did not ``willfully''  violate 
        the  Rules.   Section  503(b)   of  the  Act  gives   the 
        Commission  authority  to  assess  a  forfeiture  penalty 
        against any person if the Commission determines that  the 
        person has ``willfully or  repeatedly'' failed to  comply 
        with  the  provisions  of  the  Act  or  with  any  rule, 
        regulation or order  issued by the  Commission.  In  view 
        of our determination  that the  violations are  repeated, 
        it is  unnecessary  to determine  whether they  are  also 
        willful.

     14.  FBS states that it  has financial difficulties but  has 
        submitted no financial documentation.   As stated in  the 
        NAL,  the  Commission  will  not  consider  reducing   or 
        canceling a forfeiture on  the basis 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;  or  (3) some  other  reliable  and 
        objective  documentation  that  accurately  reflects  the 
        petitioner's current financial status.

     15.  No mitigation  is  warranted  on  the  basis  of  FBS's 
        correction of the fencing   violation and removal of  the 
        lighting  requirements.   As  the  Commission  stated  in 
        Seawest Yacht  Brokers,  9  FCC Rcd  6099,  6099  (1994), 
        ``corrective action taken  to come  into compliance  with 
        Commission rules  or  policy is  expected, and  does  not 
        nullify   or   mitigate   any   prior   forfeitures    or 
        violations.'' 9

     16.  We have examined FBS'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 FBS  repeatedly violated Sections  17.4(a), 
        17.51(a) and 73.49  of the  Rules and find  no basis  for 
        cancellation  or  reduction   of  the  proposed   $20,000 
        monetary forfeiture.

     17.  FBS seeks an administrative  hearing upon the  monetary 
        forfeiture.  Section  1.80(g) of  the Rules  provides  in 
        pertinent part that  the procedure for  issuing a  Notice 
        of  Opportunity for  Hearing    in  a  forfeiture  matter 
        ``will ordinarily  be  followed only  when a  hearing  is 
        being held for some  reason other than the assessment  of 
        a forfeiture . . . and  a forfeiture is to be  considered 
        as an alternative or in addition to any other  Commission 
        action.   However,  these  procedures  may  be   followed 
        whenever the  Commission, in  its discretion,  determines 
        that they will better  serve the ends of justice.''   FBS 
        has provided no information  that warrants a hearing  and 
        we find that  a hearing would not  better serve the  ends 
        of justice.

                        IV.  ORDERING CLAUSES

     18.  Accordingly, IT IS  ORDERED that,  pursuant to  Section 
        503(b)  of  the  Act,  and  Sections  0.111,  0.311   and 
        1.80(f)(4) of the Rules,10  FBS IS LIABLE FOR A  MONETARY 
        FORFEITURE  in the  amount  of  twenty  thousand  dollars 
        ($20,000) for failure to  register and light its  antenna 
        structure and  to  enclose it  with an  effective  locked 
        fence,  in  repeated   violation  of  Sections   17.4(a), 
        17.51(a) and 73.49   of the Rules.

     19.  IT IS  FURTHER  ORDERED, pursuant  to  Sections  0.111, 
        0.311 and 1.80(g)  of the Rules,  that FBS's request  for 
        an administrative hearing IS DENIED.

     20.  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.11  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.  200232400007 and FRN  0006-7296-
        02.  Requests for full payment under an installment  plan 
        should be sent to: Chief, Revenue and Receivables  Group, 
        445 12th Street, S.W., Washington, D.C. 20554.12

     21.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
        be sent by First Class and Certified Mail Return  Receipt 
        Requested  to  FBS   Wireless  Corporation,  114   Market 
        Street, 2nd Floor, Berwick, PA 18603.

                              FEDERAL COMMUNICATIONS COMMISSION

                         


                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

  1 47 C.F.R.  17.21(a).  

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232400007 (Enf. Bur., Philadelphia Office, released August 12, 
2002).    

  3 47 U.S.C.  503(b).

  4 47 C.F.R.  1.80.

  5 47 U.S.C.  503(b)(2)(D).

  6 47 C.F.R.  17.7(a).

  7 As provided by 47 U.S.C.  312(f)(2), a continuous  violation 
is ``repeated''  if it  continues for  more than  one day.    The 
Conference Report for Section  312(f)(2) indicates that  Congress 
intended to apply this  definition to Section 503  of the Act  as 
well as  Section 312.   See  H.R. Rep.  97th  Cong. 2d  Sess.  51 
(1982).  See Southern California Broadcasting Company, 6 FCC  Rcd 
4387, 4388 (1991)  and Western Wireless  Corporation, 18 FCC  Rcd 
10319 at fn. 56 (2003).

  8  On July  23, 2003,  the Wireless  Telecommunications  Bureau 
released a Public Notice, DA-03-2411,  granting a 60 day  amnesty 
period to the owners  of certain unregistered antenna  structures 
identified during an audit.  FBS's antenna structure is not among 
those identified  during the  audit and,  therefore, FBS  is  not 
entitled to an amnesty period to register its tower.

  9 See also Callais  Cablevision, Inc., 17 FCC Rcd 22626,  22629 
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973);  and 
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).

  10 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  11 47 U.S.C.  504(a).

  12 See 47 C.F.R.  1.1914.