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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 )
Adopted: October 16, 2003 Released: October 20, 2003
By the Chief, Enforcement Bureau:
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
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,
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.
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
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
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.
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-
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,
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,
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.