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


In the Matter of                 )    File No. EB-02-PA-284
                                )
James Chladek                    )    NAL/Acct. No. 200332400008
WXMC(AM)                         )
New York, New York               )    FRN No.  0006-1444-14


                        FORFEITURE  ORDER

   Adopted:  July 20, 2004              Released:  July 22, 2004

By the Chief, Enforcement Bureau:


I.   INTRODUCTION

     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 
fences.

     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.

II.  BACKGROUND

     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.

III.      DISCUSSION

     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 
forfeiture herein.13 

     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 
compliance.

     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 
Rules.  

     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. 
 503(b)(1)(B).  
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.