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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
Adopted: June 1, 2005 Released: June 3,
By the Regional Director, Northeast Region, Enforcement
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.
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.
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
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
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
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
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
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
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
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 by check or money order
may be mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street,
Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving
bank Mellon Bank, and account number 911-6106.
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
Russell Monie, Jr.
Regional Director, Northeast
1M.B. Communications made a ``good faith'' payment of
$2,000 on August 31, 2004, and thus the total amount due is
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
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
1547 C.F.R. §§ 0.111, 0.311, 1.80(f).
1647 U.S.C. § 504(a).