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

In the Matter of                )
                                )
Hoffman Communications, Incorporated )  File No. EB-02-NF-113
Licensee of Station WGGM(AM)    )
Owner of Antenna Structure Numbers 1040995,  )    NAL/Acct.   No. 
200232640008
1040996, and 1040997            )
Alexandria, Virginia            )    FRN 5011671       

                        FORFEITURE ORDER 

     Adopted:  December 19, 2003        Released:   December  23, 
2003  

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
        monetary forfeiture in  the amount  of nineteen  thousand 
        six hundred dollars ($19,600) to Hoffman  Communications, 
        Incorporated  (``HCI''),  owner   of  antenna   structure 
        numbers  1040995,  1040996,   and  1040997  in   Chester, 
        Virginia, and  licensee of  radio station  WGGM(AM),  for 
        willful  and  repeated  violations  of  Sections   73.49, 
        17.21,  and   73.1745(a)   of  the   Commission's   Rules 
        (``Rules'').1   Specifically,  we  find  HCI  liable  for 
        failing to maintain effective fencing around its  antenna 
        structures, for failing  to install prescribed  lighting, 
        and for exceeding authorized nighttime power limits.  

     2.   On  September  30,  2002,  the  Commission's   Norfolk, 
        Virginia  Resident  Agent  Office   (``Norfolk  Office'') 
        released a Notice  of Apparent  Liability for  Forfeiture 
        (``NAL'') to  HCI  for  a forfeiture  in  the  amount  of 
        twenty-one thousand  dollars  ($21,000).2   HCI  filed  a 
        response to the NAL on October 30, 2002.

                         II.  BACKGROUND

     3.   On August 19 and 20, 2002, a Commission agent from  the 
        Norfolk Office  observed  Station  WGGM(AM)'s  operations 
        and  facilities in  Chester,  Virginia.   On  both  days, 
        while  WGGM(AM)  was   broadcasting  with  three   towers 
        energized, the fencing  around the base  of each  antenna 
        structure was  ineffective.  Entire  sections of  fencing 
        around two of  the towers were  down while fence  pickets 
        around the  third were  missing or  separated.  With  the 
        exception of thick brush around one tower, the  condition 
        of all three  fences allowed unobstructed  access to  the 
        base of the energized towers.  Also on August 19 and  20, 
        2002, the same  agent inspected  HCI's antenna  structure 
        numbers 1040995  (93.9  meters), 1040996  (93.7  meters), 
        and  1040997  (117.7   meters).   While  conducting   the 
        inspection, the  agent  observed that  only  the  tallest 
        antenna  structure  had  lighting  installed,  while  the 
        remaining two did  not.  Finally,  on August  19 and  20, 
        2002,  after  sunset,  the  agent  took  field   strength 
        measurements at the  monitoring points  specified in  the 
        WGGM(AM) license.  On  both nights, at  two of the  three 
        nighttime monitoring point  locations, WGGM(AM)  exceeded 
        field strength limits  by more  than 150%  of the  values 
        specified in its license.   

     4.   On September 30, 2002, the Norfolk Office issued a  NAL 
        for  $21,000  to   HCI  for   violating  Sections   73.49 
        ($7,000), 17.21  ($10,000),  and 73.1745(a)  ($4,000)  of 
        the Rules.  HCI filed a  response on October 30, 2002  in 
        which  it  requests  cancellation  or  reduction  of  the 
        proposed forfeiture amount.

                      III.      DISCUSSION

     5.   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 
        HCI'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

     6.   Section 73.49 of the  Rules requires antenna  structure 
        owners  to  provide  effective  locked  fences  or  other 
        enclosures   around   antenna   structures   with   radio 
        frequency potential  at their  bases.  On  August 19  and 
        20, 2002,  the investigating  agent found  HCI's  antenna 
        structures (numbers 1040995, 1040996, and 1040997) to  be 
        without  effective  locked  fencing  because  there  were 
        sections  of gaps  in  two  of  the  fences  and  pickets 
        missing from  the  fence surrounding  the  third  antenna 
        structure.   HCI   does  not   challenge  this   finding.  
        However,  HCI submits  that  because  it  discovered  the 
        disrepair  of  the  fencing  on  August  12,  2002,   and 
        contracted to have it  repaired on August 15, 2002,  four 
        days before the inspection, its own discovery and  prompt 
        action should  be considered  in mitigation.6   We  agree 
        with HCI that  its efforts  to get  the fencing  repaired 
        prior to  the  inspection constitute  good faith  on  its 
        part and, therefore, we will reduce the total  forfeiture 
        for the fencing violation to $5,600.7

     7.   Section 17.21(a) of the Rules requires tower owners  to 
        paint  and  light  their  antenna  structures  when  they 
        exceed 60.96 meters  (200 feet) in  height above  ground.  
        On August  19  and  20, 2002,  HCI's  antenna  structures 
        (numbers 1040995  and  1040996), which  are  both  taller 
        than  60.96  meters,  had   no  lights  installed.    The 
        Commission's ASR  database  indicates  that  both  towers 
        should be lighted.  Thus,  the Norfolk Office  determined 
        that HCI  was in  violation of  Section 17.21(a)  of  the 
        Rules.  HCI  disagrees with  the NAL's  finding that  the 
        antenna structures  require lighting.   HCI asserts  that 
        when it  constructed the  three tower  array in  1988  it 
        understood  from  its   consultants  that  only   antenna 
        structure  number   1040997   required   lighting.    HCI 
        believed  that  antenna  structure  numbers  1040995  and 
        1040996  did  not  require  lighting  because  they  were 
        shielded by antenna structure  number 1040997.  HCI  also 
        argues that  several  contractors,  consulting  engineers 
        and even FCC inspectors  have visited the WGGM(AM)  tower 
        site over the  years and  no one has  ever informed  them 
        that  antenna  structure  numbers  1040995  and   1040996 
        required lighting.  Finally,  HCI states that,  following 
        the inspection, it  conducted its  own investigation  and 
        found a number of errors in the official filings for  the 
        three towers.  On  October 25, 2002,  HCI filed with  the 
        Federal Aviation Administration  (``FAA'') three  Notices 
        of Proposed Construction or  Alteration:  one to  correct 
        the height of  antenna structure number  1040997; one  to 
        remove the lighting  requirements from antenna  structure 
        number  1040995;   and  one   to  remove   the   lighting 
        requirements  from  antenna  structure  number   1040996.  
        Because  HCI believed  that  the  FAA  would  remove  the 
        lighting requirements from  both antenna structures,  HCI 
        requested that the Commission  cancel the portion of  the 
        forfeiture  relating  to   the  lighting  violations   or 
        suspend the  forfeiture  until  the FAA  acted  on  HCI's 
        applications.

     8.   Notwithstanding the  information  that  may  have  been 
        provided  to  HCI   by  its   consultants,  the   antenna 
        structure registrations  for  antenna  structure  numbers 
        1040995, 1040996, and 1040997,  which were issued by  the 
        Commission to HCI on  March 17, 1998, required all  three 
        structures to  be lighted.   Although the  FAA has  since 
        removed the lighting requirements from antenna  structure 
        number 1040996, at the time of the inspection, all  three 
        antenna structures were required to be lighted.   Antenna 
        structure numbers  1040995  and 1040996  were  not.   The 
        FAA's  subsequent No  Hazard  determination  was  not  in 
        effect until after the issuance of the NAL.  Thus,  these 
        unlighted towers violated Section  17.21(a) of the  Rules 
        and  we  therefore  find   that  Hoffman  willfully   and 
        repeatedly violated  Section  17.21(a).8   Moreover,  the 
        FAA  has confirmed  the  violation  by  reaffirming  that 
        antenna  structure  number  1040995  is  required  to  be 
        lighted.

     9.   Section 73.1745(a)  of  the Rules  prohibits  broadcast 
        stations  from operating  at  times,  or  with  modes  or 
        power, other than those specified and made a part of  the 
        license, unless  otherwise  provided by  part 73  of  the 
        Rules.  After sunset on August 19 and 20, 2002,  WGGM(AM) 
        exceeded field strength  limits of permissible  operating 
        power at two nighttime monitoring points by over 150%  in 
        violation of Section 73.1745(a)  of the Rules.  HCI  does 
        not dispute the violation.   However, HCI states that  it 
        ceased  nighttime   operations   on  August   21,   2002, 
        investigated   the   matter,   and   resumed    nighttime 
        operations within authorized  parameters on September  4, 
        2002.   Consequently,   HCI  seeks   mitigation  of   the 
        forfeiture  because  of  its  prompt  corrective  action.  
        Remedial actions taken  to correct  the violation,  while 
        commendable, are not mitigating factors.9

     10.  There is no  evidence that  HCI is  in compliance  with 
        Section 17.21 of the  Rules with respect to the  lighting 
        of antenna  structure  number 1040995.   Accordingly,  we 
        will require, pursuant  to Section 308(b)  of the  Act,10 
        that HCI report  to the Enforcement  Bureau no more  than 
        thirty (30) days following the release of this Order  how 
        it has  achieved  compliance with  Section 17.21  of  the 
        Rules  for  antenna  structure  number  1040995.    HCI's 
        report must  be submitted  in the  form of  an  affidavit 
        signed by an officer or director of HCI.  

                        IV.  ORDERING CLAUSES

     11.  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,11  HCI IS LIABLE FOR A  MONETARY 
        FORFEITURE  in  the  amount  of  nineteen  thousand   six 
        hundred  dollars  ($19,600)   for  failure  to   maintain 
        effective fencing around its antenna structures,  failure 
        to  install  prescribed   lighting,  and  for   exceeding 
        authorized  nighttime  power   limits,  in  willful   and 
        repeated  violation   of  Sections   73.49,  17.21,   and 
        73.1745(a) of the Rules.

     12.   IT IS FURTHER ORDERED that, pursuant to Section 308(b) 
        of the  Act,  HCI must  submit  the report  described  in 
        Paragraph 10,  above,  within no  more than  thirty  (30) 
        days following  the  release of  this Order,  to  Federal 
        Communications Commission,  Enforcement Bureau,  Spectrum 
        Enforcement Division,  445  12th Street,  S.W.,  Room  7-
        A728,  Washington,  D.C.  20554,  Attention:   Jacqueline 
        Ellington, Esq.

     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.12  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.  200232640008 and  FRN  5011671.  
        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. 20554.13









     14.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
        be sent by First Class and Certified Mail Return  Receipt 
        Requested   to   Hoffman   Communications,   Inc.,   2461 
        Eisenhower Avenue,  Alexandria,  Virginia 22331  and  its 
        counsel, Kevin Latek, Esq.,  Dow, Lohnes, and  Albertson, 
        1200 New Hampshire Avenue, NW, Suite 800, Washington,  DC 
        20036.

                              FEDERAL COMMUNICATIONS COMMISSION

                         


                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

  1 47 C.F.R.  73.49, 17.21, and 73.1745(a) .  

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232640008 (Enf. Bur., Norfolk  Office, released September  30, 
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 The fences were repaired on August 22, 2002.

  7 See Radio One Licenses, Inc., 18 FCC Rcd 15964 (2003).

  8  See, FBS Wireless  Corporation, 18 FCC Rcd 21018 (Enf.  Bur. 
2003). 

  9 See,  e.g., AT&T Wireless Services,  Inc., 17 FCC Rcd  21866, 
21871 (2002);  Seawest  Yacht Brokers,  9  FCC Rcd  6099  (1994); 
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).



  10 47 U.S.C.   308(b).

  11 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  12 47 U.S.C.  504(a).

  13 See 47 C.F.R.  1.1914.