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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-PA-284
James Chladek ) NAL/Acct. No. 200332400008
New York, New York ) FRN No. 0006-1444-14
Adopted: July 20, 2004 Released: July 22, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand three hundred
dollars ($6,300) to James Chladek, (``Chladek''), the licensee
of WXMC(AM), Parsippany-Troy Hill, New Jersey, for willful
violation of Section 73.49 of the Commission's Rules
(``Rules'').1 The noted violation involves failure to enclose
each of two of WXMC's antenna structures within effective locked
2. On December 4, 2002, the Commission's Philadelphia
District Office (``Philadelphia Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Chladek for a
forfeiture in the amount of seven thousand dollars ($7,000).2
Chladek filed a response to the NAL on March 7, 2003.
3. On July 11, 2002, agents from the Commission's New
York, New York District Office (``New York Office'') and the
Philadelphia Office inspected four antenna structures used by
Station WXMC for its directional antenna system. During the
inspection, the agents observed that the gates to the fences
surrounding antenna structures No. 1224382 (Southeast Tower) and
No. 1224378 (Northwest Tower) were unlocked and the gate
enclosing the entire WXMC directional antenna system was also
unlocked. The New York Office and Philadelphia Office agents
informed the station's Chief Engineer that the station should
take immediate action to lock the gates and preclude access.
4. On July 12, 2002, the agents returned to WXMC's
directional antenna system and observed that the gate enclosing
the array was still unlocked and the gates surrounding the
Southeast Tower and the Northwest Tower remained unlocked as
well. The District Director of the Philadelphia Office issued
an Official Notice of Violation (``NOV'') on August 12, 2002, to
which Chladek's Chief Engineer responded on behalf of Mr.
Chladek on August 19, 2002. The NOV stated, inter alia, that
Chladek was in violation of Section 73.49 of the Rules on July
11 and July 12, 2002. In its response, Chladek did not deny the
violation and stated that the gates had now been secured.
5. On February 3, 2003, the Philadelphia Office
issued an NAL to Chladek for seven thousand dollars ($7,000) for
willful and repeated violation of Section 73.49 of the Rules on
July 11 and 12, 2002.3 Chladek responded to the NAL conceding
that two of the four towers were without functioning locks.
Chladek points out, however, that the inspectors returned the
next day before a full 24 hours had passed, and while they again
found the gates unsecured, Mr. Altobelli had already purchased
new locks and placed them on the gates only an hour or two after
the agents' second visit. Chladek argues that the agents'
return less than 24 hours after their initial visit was an
``apparent overzealous exercise of governmental enforcement
action for the purpose of proving the `repeated' nature of the
Section 73.49 violation.''4 Chladek argues that it should not
be cited for a repeated violation of Section 73.49 because it
replaced the locks within 24 hours of the agents' visit.
6. Chladek further argues that the case should have
been closed without further action because, as the Chief
Engineer stated in response to the NOV, the gates' locks had
already been secured. Further action in the form of an NAL is,
Chladek argues, arbitrary, capricious and inconsistent with
previous actions. Finally, Chladek argues that it has never
been cited for an infraction of the Rules and this factor should
have been taken into account with the issuance of the NAL.
7. 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) (``Policy Statement''). In examining Chladek'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 such other matters as justice may require.7
8. Section 73.49 of the Rules requires antenna towers
having radiofrequency potential at the base to be enclosed with
effective locked fences or other enclosures. The Philadelphia
Office and New York Office agents' observations were that AM
Station WXMC has radio frequency potential at the bases of its
antenna towers, thereby requiring each to have an effective
locked fence or other enclosure. At the time of the
inspections on July 11 and 12, 2002, two of the WXMC antenna
structures were not enclosed within effective locked fences or
other enclosures as required by Section 73.49. Chladek admits
that it had two antenna towers without effective locked
enclosures around the bases. Accordingly, we conclude that
Chladek willfully8 violated Section 73.49 of the Rules.
9. Our finding of ``willfulness'' alone is sufficient
to uphold the proposed forfeiture here.9 Accordingly, we need
not reach the issue of whether it would be inequitable in these
circumstances to treat the violation as ``repeated.''10
10. Chladek also claims that the NAL should not have
been issued because the violation was corrected in response to
the NOV and similar situations must be treated in a similar
manner. Chladek does not provide an identifiable reference in
support of its argument.11 There is nothing in the Act or the
Commission's Rules that precludes an NAL where an NOV has
previously been issued. Indeed, the Commission has indicated
issuance of an NAL after an NOV is an appropriate enforcement
option.12 Accordingly, we find Chladek's argument to be without
merit. We thoroughly explain our reasoning for assessing a
11. Chladek argues that the NAL did not take into
account that Station WMXC has not been cited for a previous
violation of the Commission's Rules. Our records show that
Chladek's Station WMXC has never been the subject of enforcement
action for violation of the Rules. Accordingly, we find that a
reduction of $700 is warranted for Chladek's history of
12. We have examined Chladek'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 Chladek willfully violated Section 73.49 of the
Rules, but we find that the forfeiture should be reduced to six
thousand three hundred dollars ($6,300).
IV. ORDERING CLAUSES
13. 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,14 James Chladek, licensee of Station
WMXC(AM), Parsippany-Troy, New Jersey. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of six thousand three hundred dollars
($6,300) for his willful violation of Section 73.49 of the
14. 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.15 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. 200332400008 and FRN 0006-1444-14.
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. 20554.16
15. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to James Chladek, 20 Waterside Plaza, Suite 26, New
York, New York, and to its counsel, Howard J. Braun, Esq., and
Shelley Sadowsky, Esq., Katten Muchin Zavis Rosenman, 1025
Thomas Jefferson Street, N.W., East Lobby, Suite 700,
Washington, D.C. 20007-5201.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 73.49.
2 Notice of Apparent Liability for Forfeiture, File No. EB-02-PA-
284, NAL/Acct. No. 200332400008 (released February 3, 2003). The
NAL at paragraph 7 contained an administrative error, stating
that ``Chladek willfully and repeatedly violated Section 1.903(a)
of the Rules [emphasis added, footnotes omitted].'' As is clear
from paragraph 1 of the NAL and the discussion and analysis
throughout the document, the NAL found that Chladek willfully and
repeatedly violated Section 73.49 of the Rules.
3 NAL at ¶¶ 1, 7.
4 Chladek Response at page 3.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 Section 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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
9 The statutory standard for assessing a forfeiture is that the
action or omission in question is willful or repeated. 47 U.S.C.
10 As provided by 47 U.S.C. § 312(f)(2), ``[t]he term
`repeated', when used with reference to the commission or
omission of any act, means the commission or omission of such act
more than once or, if such commission or omission is continuous,
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). Southern California
Broadcasting Co., supra.
11 Chladek's counsel states ``we compare Chladek's circumstances
here with those of another broadcast licensee of this law
firm....the licensee responded to the NOV...and the field office
closed the case without further enforcement action.'' Chladek
Response at page 3.
12 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 7891
(2002), forfeiture ordered, 17 FCC Rcd 21866 (2002).
13 Melody Music, Inc., v. FCC, 345 F.2d 730 (1965).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.