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

In the Matter of                )
William Saunders owner of Gresham    )  File No. EB-02-AT-326
Communications, Inc.            )
Owner of Antenna Structure located at 32º 52' 52''     )    
NAL/Acct. No. 200332480005
North Latitude by 80º 41' 24'' West Longitude in  )
Walterboro, South Carolina      )    FRN 0007-7826-38       

                        FORFEITURE ORDER 

Adopted: December 2, 2004               Released:   December   6, 
By the Assistant Chief, Enforcement Bureau:

I.                                      INTRODUCTION
2.        1.   In this Forfeiture Order (``Order''), we issue a 
  monetary forfeiture in the amount of ten thousand dollars 
  ($10,000) to William Saunders (``Mr. Saunders'') owner of 
  Gresham Communications, Inc. (``Gresham'')1 for willful 
  violation of Section 17.51 of the Rules,2 and cancel the 
  proposed monetary forfeiture in the amount of three thousand 
  dollars ($3,000) for willful and repeated violation of Section 
  17.4(a) of the Rules.3  The noted violations involve Mr. 
  Saunders's failure to continuously exhibit all red obstruction 
  lighting on his tower from sunset to sunrise and his failure 
  to register his antenna structure with the Commission.  

3.        2.   On October 30, 2002, the Commission's Atlanta, 
  Georgia Field Office (``Atlanta Office'') issued a Notice of 
  Apparent Liability (``NAL'') to Gresham for a forfeiture in 
  the amount of thirteen thousand dollars ($13,000).4  Mr. 
  Saunders filed a response to the NAL on December 20, 2002.5
II.                        BACKGROUND

5.   3.   On April 26, 2000, during a routine inspection of an 
  antenna structure believed to be located at 32º 52' 52'' 
  latitude, 80º 41' 24'' longitude (Walterboro, South Carolina) 
  owned by Mr. Saunders, a Commission field agent from the 
  Atlanta Office discovered that this antenna structure had no 
  Antenna Structure Registration (``ASR'') number posted and was 
  not lighted by a red beacon during evening hours. A subsequent 
  search of the Commission's ASR database revealed that the 
  antenna structure was not registered with the Commission as 
  required by the Rules.  On May 5, 2000, the Atlanta Office 
  issued a Notice of Violation (``NOV'') to Mr. Saunders, 
  Gresham's owner, for violating Sections 17.51 and 17.4(a) of 
  the Rules.  Mr. Saunders replied to the May 5, 2000, NOV by 
  stating that the light outage had been repaired and by 
  providing a copy of an application for registration of the 
  antenna structure which he stated had been filed on June 19, 
7.        4.   In response to a complaint that the instant 
  antenna structure had not been lighted in the evening for a 
  period of two years, on September 18 and 19, 2002, the agent 
  from the Atlanta Office re-inspected Mr. Saunders's antenna 
  structure.  The red beacon light required for the structure 
  was out on both September 18 and 19, 2002.  During the agent's 
  inspection, she found no ASR number on the structure as 
  required by the Rules.  As a result of her observations, the 
  agent checked the ASR database and discovered that the 
  structure was not registered in Mr. Saunders's name with the 
  Commission as required by the Rules.7  
9.   5.   On October 30, 2002, the Atlanta Office issued the 
  subject NAL to Gresham citing apparent willful and repeated 
  violations of Sections 17.51 and 17.4(a) of the Rules.  In 
  response to the NAL, Mr. Saunders does not dispute the 
  violations, but includes copies of multiple applications for 
  an ASR number for his antenna structure, and a copy of a July 
  25, 2000, Federal Aviation Administration (``FAA'') 
  notification of receipt of Mr. Saunders's Notice of Proposed 
  Construction.  Mr. Saunders states further that the lighting 
  violation was corrected upon being informed of the outage, and 
  that the lighting failure resulted from vandalism.  Lastly, 
  Mr. Saunders requests cancellation of the forfeiture asserting 
  an inability to pay the forfeiture.

11.  6.   The proposed forfeiture amount in this case was 
  assessed in accordance with Section 503(b) of the 
  Communications Act of 1934, as amended (``Act''),8 Section 
  1.80 of the Rules,9 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 Mr. Saunders'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.10  
13.  7.   Section 17.51 of the Rules requires that all red 
  obstruction lighting be exhibited from sunset to sunrise 
  unless otherwise specified.  On the basis of the FCC agent's 
  observations on September 18 and 19, 2002, and the admission 
  in Mr. Saunders's response, we find that Mr. Saunders 
  willfully violated Section 17.51 of the Rules.  His remedial 
  efforts to repair the tower lighting are insufficient to 
  support a reduction of the forfeiture.11  Moreover, Mr. 
  Saunders's undocumented assertion that the lights were out due 
  to vandalism, absent evidence of an inspection schedule, would 
  not by itself mitigate the violation.12  Accordingly, we find 
  that Mr. Saunders's violation of Section 17.51 of the Rules 
  was willful.13 
15.  8.   Section 17.4(a) of the Rules provides that the owner of 
  any proposed or existing antenna structure that requires 
  notice of proposed construction to the FAA must register the 
  structure with the Commission.14  Mr. Saunders, as the owner 
  of the antenna structure, is ultimately responsible for its 
  registration.15  However, after reviewing the record in this 
  case, and Mr. Saunders's response, we conclude that the record 
  does not support a conclusion that Mr. Saunders violated 
  Section 17.4(a) of the Rules.  Accordingly, we find that the 
  monetary forfeiture for violation of Section 17.4(a) of the 
  Rules should be cancelled. 
17.  9.   Mr. Saunders's request for reduction of the forfeiture 
  based on an inability to pay is not accompanied by his tax 
  returns or other documentation.  As stated in the NAL, the 
  Commission will not consider reducing or canceling a 
  forfeiture in response to a claim of inability to pay unless 
  the petitioner submits: (1) federal tax returns for the most 
  recent three-year period; (2) financial statements prepared 
  according to generally accepted accounting practices 
  (``GAAP''); or (3) some other reliable and objective 
  documentation that accurately reflects the petitioner's 
  current financial status.16  Any claim of inability to pay 
  must specifically identify the basis for the claim by 
  reference to the financial documentation submitted.17  
  Accordingly, we find that there is no basis to reduce the 
  assessed forfeiture amount due to inability to pay, and thus, 
  we are not persuaded by Mr. Saunders's financial hardship 
19.  10.  We have examined Mr. Saunders'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 that a reduction of the forfeiture amount is 
  warranted from thirteen thousand dollars ($13,000) to ten 
  thousand dollars ($10,000).

21.  11.  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 
  in the amount of ten thousand dollars ($10,000) for willful 
  violation of Section 17.51 of the Rules, and the $3,000 
  forfeiture for violation of Section 17.4 of the Rules IS 
23.  12.  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.20  Payment may be made by check or similar 
  instrument, payable to the order of the Federal Communications 
  Commission.  The payment must include the NAL/Acct. No. 
  referenced above.  Payment by check or money order may be 
  mailed to Forfeiture Collection Section, Finance Branch, 
  Federal Communications Commission, P.O. Box 73482, Chicago, 
  Illinois 60673-7482.  Payment by overnight mail may be sent to 
  Bank One/LB 73482, 525 West Monroe, 8th Floor Milroom, 
  Chicago, IL 60661.  Payment by wire transfer may be made to 
  ABA Number 071000013, receiving bank Bank One, and account 
  number 1165259.  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. 20554.21  
24.  25.  13.  IT IS FURTHER ORDERED that a copy of this Order shall 
  be sent by First Class and Certified Mail Return Receipt 
  Requested to William Saunders, P.O. Drawer 11649, Columbia, SC 
26.  and its Counsel, M. Scott Johnson, Esq. Gardner, Carton & 
  Douglas, 1301 K Street, N.W., Suite 900, East Tower, 
  Washington, D.C. 20005.
                              George R. Dillon
                              Assistant Chief, Enforcement Bureau 


1 Gresham is the licensee  of Station WPAL-FM, Ridgeville,  South 

2 47 C.F.R. § 17.51.

3 47 C.F.R. § 17.4(a).

4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332480005 (Enf. Bur., Atlanta Office, released October 30, 

5 The NAL was issued under the name Gresham Communications, Inc.  
Mr. Saunders's December 20, 2002, response contained both his 
declaration of ownership of Gresham and of the instant antenna 
structure.  Mr. Saunders responded as the antenna structure owner 
to the NAL.  

6 Mr. Saunders's antenna structure application of June 19, 2000 
revealed that he did business under the name of Gresham 
Communications, Inc. and was ambiguous as to the owner of the 
instant structure.

7 The prior Commission data base for such antenna structures 
revealed that the instant antenna structure has been in place 
since 1975 and therefore required registration with the 
Commission by 1998. 

8 47 U.S.C. § 503(b).

9 47 C.F.R. § 1.80.

10 47 U.S.C. § 503(b)(2)(D).

11 See AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002), 
forfeiture ordered, 17 FCC Rcd 21866, 21875-76  (2002) (finding 
that a downward adjustment of an aggregate forfeiture was not 
warranted, where the carrier lacked an  effective antenna 
compliance program at the time of the violations and only 
corrected such violations after the Commission brought them to 
its attention); and Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099  
(1994) (``[C]orrective action taken to come into compliance with 
Commission rules or policy is expected, and does not nullify or 
mitigate any prior forfeitures or violations.''). 

12 In addition to his claim of vandalism, Mr. Saunders has 
offered no evidence indicating how frequently he checked the 
tower for deficiencies, or whether he made routine maintenance 
checks of the lighting at all.  Thus, this situation is 
distinguishable from Vernon Broadcasting, Inc., 60 RR 2d 1275 
(1986) (violation arising from vandalism occurring between time 
of licensee's inspection and FCC's inspection found not willful 
where licensee provided evidence of regular inspection and site 
found to be compliant just prior to FCC inspection) and Tidewater 
Communications, Inc., 18 FCC Rcd 5524 (Enf. Bur. 2003) 
(forfeiture cancelled when licensee established a routine 
inspection schedule and inspected shortly before the FCC 
inspection with no malfunctions observed), but in keeping with 
Eure  Family Ltd. Patrnership, 17 FCC Rcd 7042, 7045 (Enf. Bur. 
2002); review denied, 17 FCC Rcd 21861 (2002) and Culpepper 
Broadcasting Corp., 15 FCC Rcd 12594 (Enf. Bur. 2000). 

13 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....'' See Southern California Broadcasting Co., 6 FCC 
Rcd 4387 (1991).   

14 Section 17.4 came into effect on July 1, 1996.  Subsection 
17.4(a)(2), the section applicable to the instant pre-existing 
structure, gave owners a grace period for registration until July 
1, 1998. 

15 See L.T. Simes II and Raymond Simes, 18 FCC Rcd 8977,8980 
(Enf. Bur. 2003) (``licensees are expected to become familiar 
with and comply with the Commission's rules'') citing Sitka 
Broadcasting Company, Inc., 70 FCC 2d 2375, 2378 (1979) 
(``Licensees are expected to know and comply with the 
Commission's rules, and will not be excused for violations 
thereof ....''). 

16 NAL at para. 13.  

17 See Policy Statement at 17106; PJB Communications of Virginia, 
Inc., 7 FCC Rcd 2088, 2089 ¶ 8 (1992) (finding that gross 
receipts are a ``very useful yardstick'' in analyzing a company's 
financial condition for forfeiture purposes).

18 See Webnet Communications, Inc., 18 FCC Rcd 6870, 6878 (2003) 
(finding that the Rules require that any request to reduce or 
cancel a forfeiture based on an inability to pay claim include 
detailed and relevant financial documentation, that the carrier 
did not provide such documentation, and that therefore there was 
no basis to reduce the total forfeiture on such grounds); see 
also Commonwealth License Subsidiary, LLC, 18 FCC Rcd 20483, 
20486  (Enf. Bur. 2003); Andre Dominque Hunter, 14 FCC Rcd 3958, 
3959-60 ¶ 6 (CIB 1999).

19 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

20 47 U.S.C. § 504(a).

21 See 47 C.F.R. § 1.1914.