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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.
1040996, and 1040997 )
Alexandria, Virginia ) FRN 5011671
Adopted: December 19, 2003 Released: December 23,
By the Chief, Enforcement Bureau:
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.
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.
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
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
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
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
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,
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.
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.