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


In the Matter of                  )
                                 )
WCVC, Inc.                        )   File No. EB-02-TP-314
Licensee of Station WCVC(AM),     )   NAL/Acct. No. 200332700001
Tallahassee, Florida              )   FRN # 0003-7830-40

  



                      FORFEITURE ORDER 

Adopted:  February 2, 2004                             
Released:  February 4, 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 
($7,000.00) to  WCVC, Inc.  (``WCVC''), licensee  of Station 
WCVC(AM),  Tallahassee, Florida,  for  willful violation  of 
Section 73.49  of the Commission's Rules  (``Rules'').1  The 
noted violation involves WCVC's failure to effectively fence 
its antenna structure.  

     2.   On  October  22,  2002,  the  Commission's  Tampa, 
Florida  Office  (``Tampa  Office'') released  a  Notice  of 
Apparent Liability for Forfeiture (``NAL'') in the amount of 
seven  thousand dollars  ($7,000.00) to  WCVC for  the noted 
violation.2  WCVC  filed a response  to the NAL  on November 
22, 2002.3  

                         II.  BACKGROUND

     3.   On  August  7,  2002, in  response  to  complaints 
regarding the  operations of  Station WCVC(AM),  agents from 
the  Tampa  Office  conducted an  on-site  inspection.   The 
agents observed that WCVC(AM)'s antenna structure, which had 
radio frequency  potential at its base,  was not effectively 
fenced  or  enclosed.   The  on-site  inspection  ultimately 
culminated in the Tampa Office's issuance of the NAL.  

     4.   In its response  to the NAL, WCVC  admitted that a 
portion of the fence had been down 

following the erection of a new antenna structure in 2001 or 
through someone knocking it down.4  WCVC nevertheless sought 
cancellation of the proposed  forfeiture, claiming that that 
it   did  not   willfully   violate   the  antenna   fencing 
requirements  of  Section  73.49,   that  it  had  years  of 
broadcasting experience,  and that it was  a ``small daytime 
radio station operating out of a very humble mobile home.''  

                      III.        DISCUSSION

     5.   The proposed  forfeiture amount  in this  case was 
assessed  in accordance  with  Section 503(b)  of the  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.7  In  examining 
WCVC'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.8  As explained  below, we do  not find 
that WCVC  presented mitigating evidence that  would warrant 
cancellation of the assessed forfeiture.  

     6.   We  are not  persuaded  by WCVC's  ``categorical'' 
denial  that  it   ``willfully  violated  Section  73.49.''9  
Section   503(b)(1)(B)   provides   that  any   person   who 
``willfully  or  repeatedly''  fails   to  comply  with  any 
provision of the Act or any rule, regulation or order issued 
by the  Commission under  the Act ``shall  be liable  to the 
United  States  for  a   forfeiture  penalty.''10   In  this 
context,  ``willful''  means  the conscious  and  deliberate 
commission or omission of an act, irrespective of any intent 
to  violate statutory  or regulatory  requirements.11   WCVC 
has provided no  evidence to suggest that  anyone other than 
it or  its agent was  responsible for  the lack of  full and 
effective fencing.   In the  instant case, it  is undisputed 
that WCVC  consciously and deliberately operated  an antenna 
structure with  a base  that had radio  frequency potential, 
without proper  and effective  fencing or  other enclosures.  
We find  that WCVC willfully  violated Section 73.49  of the 
Rules.  

     7.   We also do not  find persuasive WCVC's reliance on 
its assertion that it has never been cited by the Commission 
for any  violations previously as  a basis for  reducing the 
forfeiture.    Commission   records   indicate   that   WCVC 
previously had  been issued a Notice  of Violation regarding 
its  apparent failure  to comply  with Commission  Emergency 
Alert  System   (``EAS'')  testing  and   antenna  structure 
cleaning and repainting requirements.12   

     8.   Finally, we  find the  fact that  WCVC is  a small 
station,  in and  of  itself, is  an  insufficient basis  to 
reduce  or cancel  the forfeiture.   To the  extent WCVC  is 
arguing inability  to pay, the Commission  will not consider 
reducing or canceling a forfeiture on the basis of inability 
to  pay in  the  absence of  financial documentation  (e.g., 
federal tax returns, GAPP standard accounting statements, or 
other  reliable,  objective  information).13  WCVC  did  not 
submit any  financial documentation that would  enable us to 
assess its ability to pay.14  

                     IV.    ORDERING CLAUSES

     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,15  WCVC,  Inc.  IS LIABLE  FOR  A 
MONETARY FORFEITURE in the  amount of seven thousand dollars 
($7,000.00) for its failure  to failure to effectively fence 
or  enclose  an  antenna   structure  with  radio  frequency 
potential at its base, in willful violation of 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.16  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. 
200232500008  and  FRN   0006-7409-14.   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. 20554.17  







     11.  IT IS  FURTHER ORDERED that  a copy of  this Order 
shall  be sent  by  First Class  and  Certified Mail  Return 
Receipt  Requested  to  Wendell Borrnick,  President,  WCVC, 
Inc., 117  Henderson Road, Tallahassee, Florida 32312.  

                              FEDERAL         COMMUNICATIONS 
COMMISSION
                         
                              David H. Solomon
                              Chief, Enforcement Bureau











_________________________

1 47 C.F.R.  73.49.

2 See Notice of Apparent Liability for Forfeiture, NAL/Acct. 
No. 200332700001 (Enf. Bur., Tampa Office, released October 
22, 2002). 

3 See Letter from Wendell Borrink, President, WCVC, Inc. to 
Ralph  Barlow, District  Director,  Tampa, Florida  Office, 
Enforcement   Bureau,  Federal   Communications  Commission 
(November 22, 2002) (``NAL Response'').

4 WCVC explained that after the contractors erected the new 
antenna  structure, ``evidently  a small  section near  the 
wooded area  was on  the ground because  of a  rotted fence 
post, or someone later knocked  it down.''  NAL Response at 
1.    

5 47 U.S.C.  503(b).

6 47 C.F.R.  1.80.

7 12  FCC Rcd 17087 (1997),  recon. denied, 15 FCC  Rcd 303 
(1999).  

8 47 U.S.C.  503(b)(2)(D).

9 NAL Response at 1.

10 47 C.F.R.  503(b)(1)(B).

11 See  47 U.S.C.   312(f);  see also  Southern California 
Broadcasting Co., 6 FCC Rcd 4387, 4387-88,  5 (1991).  

12 See  Enforcement Bureau Field Operations  List of Actions 
Taken, 15 FCC Rcd 20423, 20425 (Enf. Bur. 2000) (referencing 
the September 14, 2000,  Notice of Violation issued to WCVC, 
Inc. for apparent  violation of Sections 11.61  and 17.50 of 
the   Rules);   see,   e.g.,  Hill   Country   Real   Estate 
Developmental Corp.,  DA 03-3200,   5 (Enf.  Bur., released 
October 20, 2003) (rejecting a violator's past history claim 
on the basis of previously issued Warnings and/or Notices of 
Violations).    We   also  note  that  the   fact  that  the 
complainant  here  may  have   been  a  disgruntled  station 
employee is irrelevant  to the issue of  whether a violation 
occurred and a forfeiture should be imposed. 

13  See NAL at  11.

14 See,  e.g., Commonwealth License Subsidiary,  LLC, DA 03-
3147,  10 (Enf. Bur., released October 14, 2003) (denying a 
requested  cancellation  of  a  forfeiture  for  an  antenna 
fencing violation on the basis  of inability to pay, because 
the licensee failed to  substantiate its ``suggestion'' that 
payment  would  adversely  affect  the  station's  financial 
viability);  Hancock Broadcasting  Corporation,  16 FCC  Rcd 
15344, 15346,   8  (Enf. Bur.  2001) (reducing  an assessed 
forfeiture for antenna fencing  and EAS violations, based on 
the   licensee's   inability   to  pay   claim,   which   it 
substantiated through the submission of three recent federal 
tax returns).  

15 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

16 47 U.S.C.  504(a).

17 See 47 C.F.R.  1.1914.