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

In the Matter of                )
                                )
Cumulus Licensing Corporation   )    File No. EB-01-CG-415
                                )    NAL/Acct. No. 200232320007
Licensee of Station WNAM(AM)    )    FRN 0002-8348-10
Oshkosh, Wisconsin              )    

                        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  seven thousand  dollars 
  ($7,000)  to   Cumulus  Licensing  Corporation   (``Cumulus''), 
  licensee of  AM Station WNAM,  Oshkosh, Wisconsin, for  willful 
  violation   of  Section   73.49  of   the  Commission's   Rules 
  (``Rules'').1  The  noted violation involves Cumulus's  failure 
  to  maintain  an effective  locked  fence  or  other  enclosure 
  around  the base  of  an antenna  tower  having  radiofrequency 
  potential at the base.

2.        On August 16, 2002, the Commission's Chicago,  Illinois 
  Field Office (``Chicago  Office'') issued a Notice of  Apparent 
  Liability for Forfeiture (``NAL'') to Cumulus for a  forfeiture 
  in the  amount of  seven thousand  dollars ($7,000).2   Cumulus 
  filed a response to the NAL on September 16, 2002.3  

                         II.  BACKGROUND

3.        On  August  7,  2001,  while  conducting  tower  safety 
  inspections  as part  of  a field-wide  targeted  tower  safety 
  compliance program, an agent from the Chicago Office  inspected 
  the five antenna structures used as an antenna array for  WNAM, 
  Oshkosh,  Wisconsin.   The   agent  observed  that  the   fence 
  surrounding  one of  the antenna  structures had  fallen  over, 
  allowing unrestricted access to the base of the antenna.  

4.        On September  6,  2001,  the Chicago  Office  issued  a 
  Notice  of  Violation  (``NOV'')  to  Cumulus  for  failure  to 
  maintain an  effective locked fence  or other enclosure  around 
  the  base  of   an  antenna  structure  having   radiofrequency 
  potential at  the base.  In its  response, dated September  18, 
  2001, Cumulus  stated that  its market  manager, Jeff  Schmidt, 
  supervised  the completion  of a  new  fence on  September  18, 
  2001.

5.        On August 16,  2002, the Chicago  Office issued an  NAL 
  finding Cumulus apparently  liable for a $7,000 forfeiture  for 
  failure  to  maintain  an  effective  locked  fence  or   other 
  enclosure  around the  base of  its  antenna tower  in  willful 
  violation  of Section  73.49 of  the Rules.   In its  response, 
  Cumulus requests cancellation of the proposed forfeiture.  

                      III.      DISCUSSION

6.        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  Cumulus'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 requires broadcast licensees 
  to  maintain  an effective  locked  fence  or  other  enclosure 
  around  the base  of  an antenna  tower  having  radiofrequency 
  potential  at the  base.   At the  time  of the  inspection  on 
  August 7, 2001, the  fence surrounding one of the WNAM  antenna 
  structures  had fallen  over, allowing  unrestricted access  to 
  the  base  of  the antenna.   Cumulus's  response  to  the  NAL 
  indicates  that the  fence was  not fixed  until September  18, 
  2001.  Accordingly, we  conclude that Cumulus violated  Section 
  73.49 of the Rules.

8.        Cumulus contends, among other things, that a forfeiture 
  should not  be imposed  because WNAM's  station engineer  makes 
  weekly  visits to  the tower  site, and  the engineer  did  not 
  notice  the fencing  problem  because  the tower  at  issue  is 
  located about  a quarter mile from the  main tower site and  is 
  surrounded by  tall corn which  hinders the fence's  visibility 
  during the  months of August  and September.  We  think that  a 
  licensee's regular  visits to a tower  site to ensure that  the 
  tower  is in  full compliance  with  Commission rules  are,  in 
  appropriate circumstances,  entitled to  substantial weight  in 
  determining whether to issue  a forfeiture and, if so, for  how 
  much.  However,  in order to fully  credit a licensee for  such 
  visits,  it is  essential that  the licensee  actually  inspect 
  each tower at the site.  Here, the licensee indicates that  its 
  station  engineer  visited  the  main  tower  site,  but  never 
  checked the  tower at  issue, which  was only  about a  quarter 
  mile  away.  Based  on  the record,  it  is apparent  that  the 
  licensee did  not inspect  this tower  for more  than a  month, 
  from at  least August 7,  the date the  FCC agent observed  the 
  violation,  until  on or  around  September  15,  when  Cumulus 
  received the  NOV from  the Chicago  Office.7  Moreover,  while 
  the licensee contends  that tall corn surrounding the tower  at 
  issue hindered the  fence's visibility, we do not believe  that 
  this justifies the  engineer's failure to check the tower.   In 
  any  event,  there  is  no  tall  corn  visible  in  the   area 
  surrounding the  tower fence  in the photographs  taken by  the 
  FCC agent  at the  time of  his inspection.   To the  contrary, 
  these photographs show  that the tower fence is easily  visible 
  and  accessible.8   Furthermore,  we  disagree  with  Cumulus's 
  assertion   that   this  situation   is   similar   to   Vernon 
  Broadcasting, Inc.9  In that case, the Commission canceled  the 
  proposed forfeiture based on its finding that the licensee  had 
  inspected the  tower at issue shortly  prior to the  inspection 
  by the FCC agent.  As noted above, the licensee in the  instant 
  case did not inspect  the tower at issue for at least a  month.  
  Moreover, when the  licensee inspected a nearby tower, it  made 
  a conscious decision not to inspect the tower at issue.

9.        We also  disagree  with  Cumulus's  argument  that  its 
  history  of  overall compliance  with  the  Commission's  rules 
  supports cancellation  of the proposed forfeiture.   Commission 
  records indicate  that on  October 26, 2000,  the FCC's  Tampa, 
  Florida Field Office  found that Cumulus had failed to  install 
  Emergency Alert System equipment at three Tallahassee,  Florida 
  broadcast  stations, and  that on  August 12,  2002, the  FCC's 
  Kansas  City, Missouri  Field  Office found  that  Cumulus  had 
  violated  the  public  inspection  file  rule  at  two   Kansas 
  broadcast stations.10  In light of these recent violations,  we 
  do not  believe that Cumulus  is entitled to  any reduction  of 
  the  proposed  forfeiture  based  on  its  history  of  overall 
  compliance.

10.       Finally, Cumulus states that  WNAM is a participant  in 
  the    WBA's   Alternative    Broadcast   Inspection    Program 
  (``ABIP'')11 and  holds a valid  certificate of compliance  for 
  WNAM.  Cumulus asserts that this certificate entitles it to  at 
  least one warning from the Commission before any forfeiture  is 
  imposed.  We  disagree.  WBA  provided and we  have reviewed  a 
  copy  of the  ABIP  agreement in  effect  at the  time  of  the 
  inspection and the NAL.12  Although this agreement states  that 
  the Field  Office will not  conduct a routine  inspection of  a 
  broadcast   station  that   holds   a  valid   certificate   of 
  compliance,  nothing in  the  agreement suggests  that  such  a 
  station  is  entitled to  a  warning  prior to  issuance  of  a 
  forfeiture  for   a  violation  observed   during  a   targeted 
  compliance   program.   Indeed,   under  the   ABIP   agreement 
  submitted by the  WBA, the Field Office expressly reserved  the 
  right  to inspect  a station  during the  period covered  by  a 
  certificate of compliance on the basis of, among other  things, 
  a  complaint or  a targeted  compliance  program, such  as  the 
  targeted  tower safety  compliance  program which  led  to  the 
  issuance of the NAL in this case.

11.       We have examined Cumulus'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 Cumulus  willfully violated Section 73.49 of  the 
  Rules, and  we find no  basis to rescind  or reduce the  $7,000 
  forfeiture proposed for this violation.  

                      IV.  ORDERING CLAUSES

12.       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,13 Cumulus  Licensing Corporation  IS LIABLE  FOR  A 
  MONETARY FORFEITURE  in the  amount of  seven thousand  dollars 
  ($7,000) for willful violation of Section 73.49 of the Rules.

13.       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.14  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.  200232320007 and  FRN 
  0002-8348-10.  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. 
  20554.15

14.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be sent by first  class mail and certified mail return  receipt 
  requested  to  Cumulus  Licensing  Corporation,  3535  Piedmont 
  Road, Building 14,  14th Floor, Atlanta, Georgia 30305, and  to 
  its counsel,  Lewis J. Paper, Esq.,  Dickstein Shapiro Morin  & 
  Oshinsky  LLP, 2101  L Street,  N.W., Washington,  D.C.  20037-
  1526.

                         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. 
200232320007 (Enf.  Bur.,  Chicago Office,  released  August  16, 
2002).    

  3 The  Wisconsin Broadcasters Association  (``WBA''), which  is 
not a  party to  the proceeding,  filed comments  on the  NAL  on 
September 25, 2002.

  4 47 U.S.C.  503(b).

  5 47 C.F.R.  1.80.

  6 47 U.S.C.  503(b)(2)(D).

  7  Cumulus  states  that it  received  the  NOV  on  or  around 
September 15,  2001,  and  arranged for  the  fence's  repair  by 
September 18, 2001.

  8 The  inspecting agent  also noted  that the  tower fence  was 
visible from the main highway and the access road.  

  9 60 RR 2d 1275 (1986).

  10 See Notice  of Apparent Liability for Forfeiture,  NAL/Acct. 
No. 200132700002 (Enf. Bur.,  Tampa Office, released October  26, 
2000); Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200232560024 (Enf. Bur., Kansas City Office, released August  12, 
2002).

  11   ABIP  Programs   are  established   pursuant  to   written 
agreements  between  FCC  Field   Offices  and  state   broadcast 
associations.   Under  an  ABIP  agreement,  a  state   broadcast 
association provides contract  inspection services for  a fee  to 
its member stations.  The inspector  notifies the station of  any 
actual or potential violations of the Commission's rules and  the 
station is  then given  a brief  period of  time to  correct  any 
deficiencies.  Upon confirmation that any deficiencies have  been 
corrected, the association sends  a certificate of compliance  to 
the station and to the relevant Field Office.  Upon receipt of  a 
certificate of compliance, the Field Office agrees not to conduct 
routine random inspections of the station for the period  covered 
by the certificate.  

  12 State associations,  including the WBA, recently signed  new 
ABIP agreements with the Enforcement Bureau.  The new  agreements 
became  effective  on  August  15,  2003,  and  similarly  permit 
targeted tower safety inspections.

  13 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  14 47 U.S.C.  504(a).

  15 See 47 C.F.R.  1.1914.