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


In the Matter of                  )
                              )  )
File No. EB-03-TP-231             )   File No. EB-03-TP-231
Metropolitan   Radio   Group  of  )                              )
Florida, Inc.                  )  )   FRN 0007006884
                              )  )   NAL/Acct. No. 200332700030
NAL/Acct. No. 200332700030        )
Licensee  of  AM  Radio  Station  )   FRN 0007006884
WRXB,                         ) 
St. Petersburg, Florida        )
FRN 0007006884
                              )
Springfield, Missouri         ) 
 

                      FORFEITURE ORDER

Adopted:  June 28, 2004                                          
Released:  June 30, 2004         
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 Metropolitan Radio Group of Florida, Inc. 
(``Metro Radio''), licensee of Station WRXB(AM), St. 
Petersburg, Florida, for willful and repeated violation of 
Section 73.49 of the Commission's Rules (``Rules'').1  The 
noted violation involves Metro Radio's failure to maintain 
effective locked fences around the bases of its three AM 
antenna towers or a protective property fence around the 
three antenna towers.

II.   BACKGROUND 

     2.   On May 15, 2003, two agents from the Commission's 
          Tampa Field Office (``Tampa Office'') inspected 
          Station WRXB(AM) in St. Petersburg, Florida.  The 
          agents observed that each of the station's three 
          antenna towers had radio frequency potential at 
          their bases.  They also found that none of the 
          station's three AM antenna towers were enclosed 
          within an effective locked fence.  A perimeter 
          fence surrounded the property containing the three 
          towers; however, the main entrance gate to the 
          property was open and unlocked allowing 
          unrestricted access to the bases of all three 
          towers.  Station personnel stated that the 
          entrance gate to the property remained opened and 
          unlocked for a month prior to the inspection.  

     3.   On August 25, 2003, the Tampa Office issued a 
          Notice of Apparent Liability for Forfeiture 
          (``NAL'') to Metro Radio in the amount of seven 
          thousand dollars ($7,000).2  Metro Radio filed a 
          response to the NAL on September 24, 2003, seeking 
          a reduction or cancellation of the proposed 
          forfeiture.  Although it acknowledged that the 
          gate was unlocked when the agents visited the 
          station, Metro Radio disputes that the gate was 
          unlocked for a period of over a month.  Metro 
          Radio asserts that the local management adopted 
          this policy of unlocking the gate during normal 
          business hours ``for a brief period of time.''3  
          It further states that it discontinued this 
          practice after the agents' inspection.  Metro 
          Radio claims that the station maintained 
          additional fencing within the perimeter fencing 
          ``that further restricts individuals who enter the 
          property to access the studio building from 
          approaching the transmission towers''4 and that 
          station personnel monitored the pathway from the 
          gate to the building.  Metro Radio also notes that 
          it hired a firm to erect interior fencing around 
          the base of each tower.  Finally, it argues the 
          forfeiture should be reduced in light of its 
          overall history of compliance with the Rules.

III.        DISCUSSION

     4.   The proposed forfeiture amount in this case was 
          assessed in accordance with Section 503(b) of the 
          Communications Act of 1934, as amended (``Act''),5 
          Section 1.80 of the Rules,6 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) (``Forfeiture 
          Policy Statement'').  In examining Metro Radio'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.7

     5.   Section 73.49 of the Rules requires AM antenna 
          towers having radio frequency potential at the 
          base (series fed, folded unipole, and insulated 
          base antennas) to be enclosed within an effective 
          locked fence or other enclosure.8  Alternatively, 
          individual tower fences need not be installed if 
          multiple towers are contained within a protective 
          property fence.9  Metro Radio acknowledges that 
          the individual towers were not enclosed by 
          separate effective locked fences.  Although Metro 
          Radio admitted that the main gate of the perimeter 
          fence was open for an undisclosed period of time, 
          Metro Radio asserts that its additional interior 
          fencing combined with its monitoring of the gate 
          were sufficient to comply with the Rules or 
          justify reduction of the forfeiture.  The agents' 
          observations and statements of Metro Radio station 
          employees made to the agents, however, are 
          inconsistent with Metro Radio's assertions.  On 
          May 15, 2003, the agents were able to enter 
          unimpeded through the main gate.  They observed 
          that the three antenna towers were located along 
          the driveway in between the main gate and the 
          studio.  They did not observe any additional 
          interior fencing or monitoring of the gate by 
          station personnel.  On May 15, 2003, station 
          personnel stated the main gate was open during 
          regular business hours for at least a month.  
          Because the perimeter fence allowed unimpeded 
          access to the towers by the public for at least 
          several days, we conclude it was not a protective 
          property fence during those days.  Therefore, we 
          find that Metro Radio's violation of Section 73.49 
          of the Rules was willful10 and repeated.11
     6.   Metro Radio asserts that the forfeiture should be 
          reduced or cancelled because it took prompt action 
          to discontinue the open gate policy and place an 
          order for fencing around the three antennas.  
          Metro Radio's remedial actions, however, to 
          correct promptly violations after they have been 
          identified by an agent is expected and does not 
          warrant a reduction in the forfeiture amount.12     

     7.   Finally, Metro Radio claims that the forfeiture 
          should be reduced or cancelled in light of its 
          overall history of compliance with the Rules.  We 
          disagree.  We recently issued a Forfeiture Order 
          in the amount of twelve thousand dollars ($12,000) 
          against the Metropolitan Radio Group, Inc. for 
          willful violation of Sections 73.1125(a) and 
          73.3526(b) of the Rules.13  Metropolitan Radio 
          Group, Inc. owns 100 percent of the assets of 
          Metro Radio.14  Because Metro Radio's parent 
          company has previously violated the rules, we find 
          that a reduction of the assessed forfeiture amount 
          is not warranted.

     8.   We have examined Metro Radio's response to the NAL 
          pursuant to the statutory factors above, and in 
          conjunction with the Forfeiture Policy Statement.  
          As a result of our review, we conclude that Metro 
          Radio willfully and repeatedly violated Section 
          73.49 of the Rules and find no basis for 
          cancellation or reduction of the forfeiture 
          proposed for this violation.

     9.   Although Metro Radio asserted in its response to 
          the NAL that it had discontinued its open gate 
          policy after the May 15, 2003 inspection, 
          installed additional interior fencing within the 
          perimeter fence that restricted people from 
          approaching the towers, and placed orders to build 
          base fences around the three towers, we have 
          reason to question whether Metro Radio has come 
          into compliance with Section 73.49 of the Rules.  
          Following receipt of an interference complaint 
          against Station WRXB(AM), two agents from the 
          Tampa Office again inspected the station on April 
          29, 2004.  The agents observed that the main gate 
          of the perimeter fence remained open and 
          unattended and that there was no chain or lock 
          hanging from the fence.  The agents also found 
          that there were no base fences around the three 
          towers and no additional interior fencing.  In 
          order to assist the Commission in determining 
          what, if any, additional enforcement action may be 
          appropriate, pursuant to Section 308(b) of the 
          Act,15 we require Metro Radio to report to the 
          Enforcement Bureau no more than thirty days after 
          the release of this Forfeiture Order whether it 
          has come into compliance with Section 73.49 of the 
          Rules by locking the perimeter fence surrounding 
          Station WRXB(AM) at all times or erecting 
          individual base fences around each of its three AM 
          towers.  Metro Radio's report must be submitted in 
          the form of an affidavit or declaration, under 
          penalty of perjury, signed by an officer or 
          director of the licensee.  Metro Radio should note 
          that continued noncompliance could result in 
          additional enforcement actions.

IV.   ORDERING CLAUSES

     10.  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,16 Metropolitan 
          Radio Group of Florida, Inc. IS LIABLE FOR A 
          MONETARY FORFEITURE in the amount of seven 
          thousand dollars ($7,000) for willfully and 
          repeatedly violating Section 73.49 of the Rules. 

     11.  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.17  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. 200332700030, and FRN 
          0007006884.  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. 20554.18

     12.  IT IS FURTHER ORDERED that, pursuant to Section 
          308(b) of the Act,19 Metropolitan Radio Group of 
          Florida, Inc. must submit the report described in 
          paragraph 9 above, no more than thirty (30) days 
          following the release of this Forfeiture Order, to 
          the Federal Communications Commission, Enforcement 
          Bureau, South Central Region, 520 NE Colbern Road, 
          Lee's Summit, MO 64086, Attention: Regional 
          Counsel. 

     13.  IT IS FURTHER ORDERED that, a copy of this Order 
          shall be sent by Certified Mail Return Receipt 
          Requested and by First Class Mail to Metropolitan 
          Radio Group of Florida, Inc.'s counsel, Anthony T. 
          Lepore, Esq., Post Office Box 823662, South 
          Florida, FL 33082-3662.  


                              FEDERAL COMMUNICATIONS 
                              COMMISSION



                              David H. Solomon
                              Chief, Enforcement Bureau

               
_________________________

147 C.F.R.  73.49.

2Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332700030 (Enf. Bur., Tampa  Office, released August 25, 
2003).

3Metro Radio Response at 2.

4Id. at 1.

547 U.S.C.  503(b).

647 C.F.R.  1.80.

747 U.S.C.  503(b)(2)(D).

847 C.F.R.  73.49. 

9Id.

10Section  312(f)(1) of  the  Act, 47  U.S.C.   312(f)(1), 
which  applies  to  violations for  which  forfeitures  are 
assessed  under Section  503(b) of  the Act,  provides that 
``[t]he  term  `willful,'  ...   means  the  conscious  and 
deliberate commission or omission of such act, irrespective 
of any intent  to violate any provision of this  Act or any 
rule or regulation of the Commission authorized by this Act 
....''  See Southern California Broadcasting Co., 6 FCC Rcd 
4387 (1991).   

11As  provided  by  47  U.S.C.   312(f)(2),  a  continuous 
violation is ``repeated'' if it continues for more than one 
day.     The  Conference   Report  for   Section  312(f)(2) 
indicates that  Congress intended to apply  this definition 
to Section 503 of the Act as well as Section 312.  See H.R. 
Rep.  97th   Cong.  2d  Sess.  51   (1982).   See  Southern 
California  Broadcasting  Company,  6 FCC  Rcd  4387,  4388 
(1991) and  Western Wireless Corporation, 18  FCC Rcd 10319 
at fn. 56 (2003).

12See  AT&T  Wireless Services,  Inc.,  17  FCC Rcd  21861, 
21864-75 (2002);  Sonderling Broadcasting Corp., 69  FCC 2d 
289, 291  (1978); Odino  Joseph, 18  FCC Rcd  16522, 16524, 
para.  8 (Enf.  Bur.  2003);  South Central  Communications 
Corp., 18  FCC Rcd 700,  702-03, para. 9 (Enf.  Bur. 2003); 
Northeast Utilities, 17 FCC Rcd  4115, 4117, para. 13 (Enf. 
Bur. 2002).  

13Forfeiture Order,  NAL/Acct. No. 20033262003,  DA 04-1306 
(rel. May 12, 2004).

14See Ownership  Report for Commercial  Broadcast Stations, 
File  No.  BOA-20030917ABS,  submitted by  Metro  Radio  on 
September 17, 2003.

1547 U.S.C.  308(b).

1647 C.F.R.  0.111, 0.311, 1.80(f)(4).

1747 U.S.C.  504(a).

18See 47 C.F.R.  1.1914.

1947 U.S.C.  308(b).