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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
WSMN Broadcasting, LLC ) File Number EB-04-BS-003
Licensee of Station WSMN ) NAL/Acct. NO. 200532260003
Nashua, New Hampshire ) FRN 0011401320
Facility ID # 102 )
Adopted: October 3, 2006 Released: October 6, 2006
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of seven thousand dollars ($7,000) to WSMN Broadcasting,
LLC, ("WSMN"), former licensee of AM station WSMN, in Nashua, New
Hampshire, for willfully and repeatedly violating Section 73.49 of
the Commission's Rules ("Rules") by failing to enclose one of WSMN's
three antenna structures within an effective locked fence or other
2. On May 12, 2004, an agent from the FCC Enforcement Bureau's Boston
Office inspected the three antenna structures used by AM station WSMN,
Nashua, New Hampshire. The agent observed that the fence around the
west tower had a large gap between two pickets and the fence on one
side of the gap was falling down. The gap allowed access to the tower,
which was series fed and had radio frequency potential at its base.
The agent also observed that there was extensive vegetative growth
around the base of the tower, including in the gap of the fence. The
agent also found that the tower's tuning unit had fallen and was
upside down on the ground. The antenna structures were not protected
by a property fence.
3. On September 28, 2005, the Boston Office issued a Notice of Apparent
Liability for Forfeiture to WSMN for apparent willful and repeated
violation of Section 73.49 of the Rules. In its response to the NAL,
WSMN claims that the proposed forfeiture should be rescinded because
WSMN is not the owner of the antenna structures at issue.
4. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines. 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
5. We decline to grant WSMN's request to cancel the proposed forfeiture.
WSMN claims that it is not responsible for complying with the AM
fencing requirements because it does not own the antenna structures.
The fencing requirements in Section 73.49 of the Rules, however, apply
to AM licensees, not antenna structure owners. Section 73.49 is
contained within Part 73 of the Commission's rules, which applies to
broadcast services and its licensees. More specifically, Section 73.49
of the Rules is set out in Subpart A of Part 73, the scope of which is
described as containing "those rules which apply exclusively to the AM
broadcast service" The cases WSMN cites in its response to the NAL
support this conclusion. In each of those cases, the entity held
responsible for violating Section 73.49 of the Rules was the licensee,
albeit in each instance the licensee also was the antenna structure
owner. The responsibility for complying with Section 73.49 of the
Rules does not shift to the antenna structure owner in cases where the
licensee and the antenna structure owner are different entities; that
is, the licensee always remains the party responsible for complying
with the AM fencing requirements.
6. We have examined the 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 WSMN willfully
and repeatedly violated Section 73.49 of the Rules. Considering the
entire record and the factors listed above, we find that neither
reduction nor cancellation of the proposed $7,000 forfeiture is
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules, WSMN Broadcasting, LLC IS LIABLE FOR A
MONETARY FORFEITURE in the amount of seven thousand dollars ($7,000)
for willful and repeated violation of Section 73.49 of the Rules.
8. 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,
that case may be referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act. 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. Requests for full payment under an installment plan should
be sent to: Associate Managing Director, Financial Operations, 445
12th Street, S.W., Room 1A625, Washington, D.C. 20554.
9. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by Certified Mail, Return Receipt Requested, and regular mail, to
WSMN Broadcasting, LLC at its address of record and to counsel for
WSMN Broadcasting, LLC at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Russell Monie, Jr.
Regional Director, Northeast Region
Commission records show that the application for assignment of station
WSMN was granted on August 19, 2005, and the assignment of the license was
consummated on November 10, 2005. WSMN Broadcasting, LLC was the licensee
at the time the violations at issue occurred in 2004.
47 C.F.R. S 73.49.
WSMN Broadcasting, LLC, Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200532260003 (Enf. Bur., Boston Office, September 28, 2005)
WSMN also submitted a supplemental response in which it reports that the
antenna structures were dismantled.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 73.1. In contrast, Part 17 sets out the requirements for
antenna structure owners. See 47 C.F.R. SS 17.1 et seq. We note that, even
with regard to the requirements that primarily apply to antenna structure
owners, licensees still have a secondary responsibility. Section 17.6(a)
provides that, if the licensee "has reason to question whether the antenna
structure owner is carrying out its responsibility under this part, the
licensee or permittee must take immediate steps to ensure that the antenna
structure is brought into compliance and remains in compliance." 47 C.F.R.
See M.B. Communications, Inc., Forfeiture Order, 20 FCC Rcd 9356 (2005),
petition for recon. denied, Memorandum Opinion and Order, 2006 WL 2336317
(2006)(licensee of WYLF(AM), Penn Yan, NY); Small Town Radio, Inc.,
Memorandum Opinion and Order, 19 FCC Rcd 7187 (2004)(licensee of WDGR(AM),
Dahlonega, GA); Westshore Broadcasting, Inc., Forfeiture Order, 19 FCC Rcd
6169 (2004)(licensee of WOCA(AM), Ocala, FA); FBS Wireless Corporation, 19
FCC Rcd 19477 (2004)(licensee of WFBS(AM), Berwick, PA). Although we
recognize that these decisions use language suggesting that the tower
owner is responsible for complying with Section 73.49 of the Rules, such
language is not dispositive and does not supercede the relevant provisions
in our rules.
Indeed, compliance with the AM fencing requirements is significant enough
to have been one of the issues designated for consideration in a case to
determine whether an individual was qualified to be an AM station
licensee. In Family Broadcasting Inc., the Commission remanded to the
presiding judge, inter alia, the issue of whether the transferee "will
have sufficient financing and managerial capacity to ensure enclosure
within an effective locked fence of WSTX(AM)'s antenna as required by
Section 73.49." Family Broadcasting, Inc., Order to Show Cause Why the
Licenses for Stations WSTX(AM) and WSTX-FM, Christiansted, U.S. Virgin
Islands, Should Not Be Revoked, 20 FCC Rcd 9463 para. 7(g) (2005)
(subsequent history omitted).
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U. S. C. S 504(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission DA 06-1978
Federal Communications Commission DA 06-1978