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


In the Matter of                  )
                                 )
M.B. Communications, Inc.         )   File No. EB-04-BF-018
WYLF                              )   NAL/Acct. No. 200432280003
Penn Yan, New York                )   FRN: 0000012005
                                 )

                      FORFEITURE ORDER 

Adopted:  June 1, 2005                  Released:   June  3, 
2005 

By  the  Regional  Director, Northeast  Region,  Enforcement 
Bureau:

I.  INTRODUCTION

     1.  In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of eleven thousand dollars 
($11,000)1 to M.B. Communications, Inc. (``M.B. 
Communications''), licensee of AM station WYLF, Penn Yan, 
New York, for willful and repeated violations of Sections 
73.49, 73.1560(a)(1), and 73.1745(a) of the Commission's 
rules (the ``Rules'').2  The noted violations concern the 
operation of station WYLF with power in excess of the 
station's authorization during daytime, post sunset, and 
nighttime hours and failure to enclose the station's tower 
within an effective locked fence or other enclosure.

II.  BACKGROUND

     2.  Station WYLF is authorized to operate at certain 
power levels during daytime, post sunset, and nighttime 
hours.  On February 4, 2004, in response to an anonymous 
phone call stating that station WYLF was operating with 
excessive power at nighttime, an agent with the Commission's 
Buffalo Office took field strength measurements for daytime 
and post sunset operation.  Based on these measurements, the 
agent determined that WYLF was operating in excess of 
authorized levels for both daytime and post sunset 
operation.  On February 9, 2004, the agent conducted field 
strength measurements and determined that the station was 
operating in excess of its authorized nighttime levels as 
well.  On February 24, 2004, the agent conducted field 
strength measurements and determined that WYLF was again 
operating in excess of its daytime authorized power level.

     3.  The Commission agent also inspected the WYLF 
antenna and tower enclosure.  The agent found that the gate 
to the enclosure was secured by a long-cabled lock, but the 
amount of slack in the cable resulted in an inadequately 
secured lock that allowed unimpeded access to the tower.  
The agent also observed a space of at least eighteen (18) 
inches between the bottom of the fence and the ground that 
allowed unimpeded access to the tower.

     4.  On August 25, 2004, the Commission's Buffalo Office 
issued a Notice of Apparent Liability for Forfeiture 
(``NAL'') to M.B. Communications for a forfeiture in the 
amount of eleven thousand dollars ($11,000) for willful and 
repeated violation of Sections 73.49, 73.1560(a)(1), and 
73.1745(a) of the Rules.  M.B. Communications filed a 
response to the NAL on August 31, 2004.

III.      DISCUSSION

     5.  The forfeiture amount proposed in this case was 
assessed in accordance with Section 503(b) of the 
Communications Act of 1934, as amended (``Act''),3 Section 
1.80 of the Rules,4 and the Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines.5  In assessing 
forfeitures, Section 503(b)(2)(D) of the Act requires that 
we 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.6  As discussed below, we have considered M.B. 
Communications' response to the NAL in light of these 
statutory factors and have found that reduction or 
cancellation of the proposed forfeiture amount is not 
warranted.  

     6.  Section 73.1560(a)(1) of the Rules provides that AM 
stations must be maintained as near as practicable to the 
authorized antenna input power.  Section 73.1745(a) of the 
Rules requires that no broadcast station operate at times, 
or with modes or power, other than those specified and made 
part of the license.  A Commission agent determined that 
station WYLF exceeded its authorized daytime power limit on 
February 4, 2004 and February 24, 2004; its post sunset 
power limit on February 4, 2004; and its nighttime power 
limit on February 9, 2004.  The violation of Section 
73.1745(a) therefore is repeated.7  

     7.  In its response to the NAL, M.B. Communications 
does not deny that it operated at power levels above those 
authorized for daytime, post sunset, and daytime operations.  
M.B. Communications claims, however, that the excessive 
power levels were the result of an equipment malfunction, 
which prevented the transmitter from automatically changing 
power levels at the required times.  It is irrelevant what 
caused the station to operate in excess of its authorized 
power levels.  M.B. Communications, as the licensee for 
station WYLF, is responsible for ensuring that the station 
operates at all times consistent with its authorized 
daytime, post sunset, and nighttime power levels.  To the 
extent M.B. Communications is attempting to demonstrate that 
its actions were not willful, we note that Section 503(b) of 
the Act gives the Commission the authority to assess a 
forfeiture penalty against any person if the Commission 
determines that the person has ``willfully or repeatedly'' 
failed to comply with the provisions of the Act or with any 
rule, regulation or order issued by the Commission.  In 
light of our determination that M.B. Communications' 
violations of Sections 73.1560(a)(1) and 73.1745(a) were 
repeated, it is not necessary to determine whether they also 
were willful.8  

     8.  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.9  At the time of the inspection in February 2004, 
the Commission agent determined that the fence at the base 
of the WYLF antenna tower did not effectively enclose the 
antenna because of an ineffective lock on the fence's gate 
and a gap of at least eighteen (18) inches beneath the 
fence, both of which the agent concluded allowed unimpeded 
access to the tower. Based on this evidence, the Buffalo 
Office concluded in the NAL that M.B. Communications 
apparently willfully and repeatedly violated Section 73.49 
of the Rules.  With regard to the lock on the gate, M.B. 
Communications does not challenge the agent's description or 
the finding in the NAL that its actions were willful and 
repeated.  Rather, M.B. Communications disagrees with the 
agent's conclusion that it was not an effective lock.  The 
agent's contemporaneous observations, however, show that the 
lock on the gate was not effective because the amount of 
slack in the locked cable resulted in an inadequately 
secured gate.  As a result, access to the tower was 
unimpeded.  We stand by the Buffalo Office's conclusions and 
find that the ineffective lock on the gate constitutes a 
willful and repeated violation of Section 73.49 of the 
Rules.10 

     9.  As to the gap beneath the fence, M.B. 
Communications explains that a ``section of the enclosure 
lifted out of the ground during the winter'' and that it 
``was an excessively snowy winter which covered up the open 
area below the fence.''11  For purposes of determining 
whether there has been a violation of our rules, it is 
irrelevant what caused the gap in the fence.  The tower 
owner is responsible for ensuring that the tower is enclosed 
within an effective locked fence.  Moreover, we do not 
accept M.B. Communications' apparent claim that it could not 
see the gap because of the snow.  At the time of the 
inspection in February, the agent's documented evidence 
shows that there was snow on the ground and the agent was 
able to see the gap beneath the fence.  There is no reason 
to believe that M.B. Communications could not have seen the 
gap beneath the fence as well.  In any event, because we 
find that the existence of the gap throughout the winter 
constitutes a repeated violation of Section 73.49 of the 
Rules, we do not need to make a finding with regard to 
willfulness.12

     10.  M.B. Communications states in its response to the 
NAL that it immediately took steps to correct the 
overpowered operation and to fix the tower gate.13   M.B. 
also submits that it changed its monitoring procedures to 
ensure that WYLF remains at authorized power levels.  These 
remedial efforts by M.B. Communications do not warrant a 
reduction or cancellation in the forfeiture.  As the 
Commission has stated, ``corrective action taken to come 
into compliance with Commission rules or policy is expected, 
and does not nullify or mitigate any prior forfeitures or 
violations.''14  

     11.  We have examined M.B. Communications' 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 M.B. Communications 
repeatedly violated Sections 73.1560(a)(1) and 73.1745(a) of 
the Rules and willfully and repeatedly violated Section 
73.49 of the Rules.  We also conclude that neither 
cancellation nor reduction of the proposed $11,000 monetary 
forfeiture is warranted.

     12.  We have received information that leads us to 
believe that M.B. Communications continues to operate 
station WYLF in excess of the station's authorized power.  
Accordingly, we direct M.B. Communications to report to 
Regional Counsel for the Northeast Region within thirty (30) 
days, whether station WYLF is operating consistent with the 
station's authorization.

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 Rules15, M.B. Communications, Inc. IS 
LIABLE FOR A MONETARY FORFEITURE in the amount of eleven 
thousand dollars ($11,000) for repeated violations of 
73.1560(a)(1), 73.1745(a), and 73.49 of the Rules. M.B. 
Communications made a ``good faith'' payment on August 31, 
2004, and thus the balance due is nine thousand dollars 
($9,000).  

     14.  IT IS FURTHER ORDERED that, pursuant to Section 
308(b) of the Act, M.B. Communications, Inc., SHALL REPORT 
to Regional Counsel within thirty (30) days whether station 
WYLF is operating consistent with the station's 
authorization.  Such information shall be reported to 
Regional Counsel, Northeast Region, Federal Communications 
Commission, One Oxford Valley Office Building, Room 404, 
2300 East Lincoln Highway, Langhorne, PA  19047-1859.

     15.  Payment of the forfeiture shall be made in the 
manner provided for in Section 1.80 of the Rules within 
thirty (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 of the 
forfeiture must be made by check or similar instrument, 
payable to the order of the Federal Communications 
Commission. The payment must include the NAL/Acct. No. and 
FRN No. referenced above. Payment bycheck or money order 
may be mailed to Federal Communications Commission, P.O. 
Box358340,Pittsburgh, PA 15251-8340. Payment by overnight 
mail may be sent toMellon Bank/LB358340,500 Ross Street, 
Room 1540670, Pittsburgh, PA 15251. Payment by wire 
transfer may be made to ABA Number043000261, receiving 
bankMellon Bank, and account number911-6106.



     16.  IT IS  FURTHER ORDERED that  a copy of  this Order 
shall  be sent  by  First Class  and  Certified Mail  Return 
Receipt Requested to M.B.  Communications, Inc.'s address of 
record.  

                              FEDERAL         COMMUNICATIONS 
COMMISSION
                         

                              Russell Monie, Jr.
                              Regional  Director,  Northeast 
Region
                              Enforcement Bureau


_________________________

1M.B.  Communications  made  a ``good  faith''  payment  of 
$2,000 on August 31, 2004, and thus the total amount due is 
$9,000.

2 47 C.F.R.  73.49, 73.1560(a)(1), and 73.1745(a).

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

447 C.F.R.  1.80.

512 FCC  Rcd 17087  (1997), recon. denied,  15 FCC  Rcd 303 
(1999) (``Forfeiture Policy Statement'').  

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

7Section 312(f)(2) of the Act, 47 U.S.C.  312(f)(2), which 
also  applies  to  violations  for  which  forfeitures  are 
assessed  under Section  503(b) of  the Act,  provides that 
"[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.''   

8See  Entravision Communications  Corporation,  19 FCC  Rcd 
15333 (2004), citing KOKE, Inc., 23 FCC 2d 191 (1970).

9The WYLF tower is series fed.

10Section 312(f)(1) of the  Act, 47 U.S.C. 312(f)(1), which 
applies to Section 503(b) of the Act, provides that ``[t]he 
term `willful', when used  with reference to the commission 
or omission of any act,  means the conscious and deliberate 
commission  or omission  of such  act, irrespective  of any 
intent to  violate any  provision of  this Act  ....''  See 
Southern  California  Broadcasting  Co.,  6  FCC  Rcd  4387 
(1991).

11M.B.  Communications' statement  that ``anyone  who would 
willingly  crawl under  the fence  in the  mud and  snow in 
February  .  .  .  would have  malicious  intent''  is  not 
relevant to  our determination  as to  whether there  was a 
repeated  or willful  violation by  M.B. Communications  of 
Section 73.49 of the Rules.

12See supra para. 8.

13 M.B.  Communications states in  its response to  the NAL 
that it could  not fix the gap beneath the  fence until the 
ice and snow melted.

14See Seawest  Yacht Brokers,  9 FCC  Rcd 6099  (1994).  We 
note that,  in its  response, M.B.  Communications provides 
information   regarding  other   matters,  including,   for 
example,  its  purchase  of certain  EAS  equipment.   This 
additional information is not relevant to the violations at 
issue here.

1547 C.F.R.  0.111, 0.311, 1.80(f).

1647 U.S.C.  504(a).