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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-
Wilson Broadcasting Co., Inc. ) NAL/Acct.
Licensee, Station WAGF(AM) )
Dothan, Alabama ) FRN
Adopted: March 12, 2003 Released: March 17, 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 Wilson Broadcasting Co., Inc.
(``Wilson''), licensee of Station WAGF(AM), Dothan,
Alabama, for willful and repeated violation of Section
73.49 of the Commission's Rules (``the Rules'').1 The
noted violation involves Wilson's failure to provide
an effective locked fence enclosure for the station's
2. On June 10, 2002, the District Director of the
Commission's Atlanta, Georgia Field Office (``Atlanta Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'')2
in the amount of $7,000 to Wilson. Wilson submitted a response
on August 2, 2002.3
3. On April 23, 2002, a Commission agent from the Atlanta
Field Office conducted an inspection of the WAGF(AM) transmitter
site and antenna structure. The antenna structure with a folded
unipole AM broadcast antenna attached was not enclosed by
fencing. Also, the feed wire from the tuning box to the antenna
was not protected by fencing. The antenna had radio frequency
potential at the base of the antenna structure.
4. On April 24, 2002, a Commission agent from the Atlanta
field office inspected station WAGF(AM). Again, the agent noted
that the station's antenna structure was not enclosed by fencing.
The station owner, Mr. J.R. Wilson, stated that the station had
been operating for about one month and that the fencing had not
yet been installed. On June 10, 2002, the District Director of
the Atlanta Office issued a NAL to Wilson for violation of
Section 73.49 of the Rules.
5. On August 2, 2002, Wilson submitted a response to the
NAL. In its response, Wilson claims that the forfeiture was
proposed in error and the NAL must be rescinded because the
antenna structure was surrounded by a protective property fence,
and therefore was not accessible to the general public.
6. The forfeiture amount in this case is being
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). In examining Wilson'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 provides that antenna towers
having radio frequency potential at the base (series fed, folded
unipole, and insulated base antennas) must be enclosed within
effective locked fences or other enclosures. Section 73.49 also
provides that individual tower fences need not be installed if
the towers are contained within a protective property fence.
Wilson claims that at the time of the inspection the WAGF tower
was surrounded by a protective property fence and the tower was
therefore not accessible by the general public. Although the
property was surrounded by a fence, the investigating agent
observed breaks in the fence and there was an open gap in the
fence at the driveway. On April 23, 2002, when the agent
inspected the transmitter site and on April 24, 2002, when the
agent inspected the property with Mr. Wilson, the agent drove
directly onto the property without complete restriction from the
property fence and walked right up to the unenclosed tower.
Although Wilson indicates that construction on a second tower was
on-going at the time of the inspection and that construction
required portions of the property fence to be removed, the
existing tower was still radiating and unenclosed during such
construction, presenting a possible safety hazard. Further,
Wilson indicates that the fence surrounding the antenna structure
was taken down on April 20, 2002, to facilitate the new
construction, and the new fence surrounding the antenna structure
was constructed ``on or about April 26, 2002.'' However, Wilson
does not indicate what measures were taken during construction to
protect individuals from the radiating tower in the interim.
8. Wilson also claims that the fact that Mr. Wilson's
brother resided on the property at the time of the tower
construction helped to prevent intrusion onto the site. Wilson
further contends that a portion of the land surrounding the
property is swampland which also added a ``further barrier that
precluded casual or inadvertent access to the site.'' However,
the rules require that the type of antenna structure at issue
here be surrounded either by an effective locked fence or other
enclosure or be contained within a protective property fence.
The fact that a portion of the property abuts swampland or that
someone lives on the property to provide security does not excuse
Wilson from complying with the requirements of Section 73.49.
Further, the fact that the investigating agent could drive,
unimpeded, onto the property, walk right up to the antenna
structure and touch it at a time when it was radiating means that
Wilson had neither an effective locked fence enclosure nor an
effective protective property fence. Therefore, Wilson was in
violation of Section 73.49 of the Rules. Finally, although
Wilson also claims that the front gate was locked at all times
when the site was unoccupied, the agent has stated that there was
no gate on the property fence at the time he conducted the
inspection and a section of the property fence had been removed
to facilitate the construction of the tower.
9. 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,7 Wilson Broadcasting Co., Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $7,000 for willfully and repeatedly
violating Section 73.49 of the Rules.
10. 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.8
Payment shall 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 note
NAL/Acct. No. 20023480005, and FRN 0004-3330-19. 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. 20554.9
11. IT IS FURTHER ORDERED THAT this Order shall be
sent by regular mail and by certified mail, return receipt
requested, to Wilson Broadcasting Co., Inc., Radio Station
WAGF(AM), 808 N. Oates St., Dothan, Alabama 36303.
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.
20023480005 (Enf. Bur., Atlanta Field Office, released June 10,
3 A response to a Commission NAL should be filed within 30
days of the issuance of the NAL. See Section 1.80(f)(3) of the
Rules. Although Wilson's response was filed more than 30 days
from the issuance of the NAL, we will still consider it in this
proceeding to ensure that we have a complete record.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
8 47 U.S.C. § 504(a).
9 See 47 C.F.R. § 1.1914.