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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
A Radio Company, Inc. )
File Number EB-05-SJ-025
Licensee of Station WEGA )
P.O. Box 1488 )
Vega Baja, PR 00694 )
Facility ID # 69853 )
MEMORANDUM OPINION AND ORDER
Adopted: January 30, 2007 Released: February 1, 2007
By the Assistant Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we grant in part and
deny in part the petition for reconsideration filed by A Radio
Company, Inc. ("A Radio"), licensee of AM radio station WEGA in Vega
Baja, Puerto Rico, of the Forfeiture Order issued November 3, 2006.
The Forfeiture Order imposed a monetary forfeiture in the amount of
$15,000 on A Radio for the willful violation of Sections 73.49 and
73.3526 of the Rules and the willful and repeated violation of Section
73.1350(a) of the Rules. The noted violations involved A Radio's
failure to enclose an antenna tower having radio frequency potential
at the base within an effective locked fence, its failure to make
available a complete public inspection file, and its failure to
operate its station in accordance with the terms of its station
2. On August 25, 2005, in response to a complaint, resident agents from
the Commission's San Juan Office of the Enforcement Bureau ("San Juan
Office") conducted an inspection of station WEGA located in Vega Baja,
Puerto Rico. Among other violations, the agents observed that the
easternmost antenna structure, which had radio frequency potential at
its base, was not enclosed within an effective locked fence. Moreover,
the agents observed a sizable hole on the right side of the perimeter
property fence, which would allow access to the property.
3. On October 25, 2005, a resident agent of the San Juan Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$15,000 to A Radio. A Radio filed a response to the NAL dated January
11, 2006. The Enforcement Bureau found no basis upon which to reduce
the proposed forfeiture and issued the Forfeiture Order. On December
4, 2006, A Radio filed a petition for reconsideration of the
Forfeiture Order requesting reduction or cancellation of the
forfeiture associated with its violation of Section 73.49 of the
4. The forfeiture amount in this case was assessed in accordance with
Section 503(b) of the 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 examining A
Radio's petition, 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 any
other such matters as justice may require.
5. In its petition for reconsideration, A Radio admits that the
easternmost antenna, which had radio frequency potential at its base,
was not enclosed by an effective locked fence or a protective
perimeter property fence. Nevertheless, A Radio asserts the forfeiture
for this violation should be cancelled or reduced, because the tower
was surrounded by a swamp more than 12 inches deep filled with
crocodiles and leaches. A Radio also claims this swamp contains
overflow from the local sewage treatment plant. A Radio states that
this swamp makes accessing the tower very difficult and notes that the
agents did not access the base of the tower. Finally, A Radio asserts
that the Department of Natural Resources ("DNR") is presenting
"obstacles" to construction of a fence, due to the swampy conditions.
Citing Buchanan Broadcasting, Inc., a case in which the Bureau reduced
a forfeiture because "the muddy conditions around the base of the
tower arguably impeded access, making the lack of effective fencing a
less significant safety hazard," A Radio requests that the forfeiture
be reduced or cancelled, because the swamp significantly impeded
access to the tower and reduced the safety hazard posed by the lack of
an individual tower fence.
6. It is undisputed that on August 25, 2005, A Radio was in violation of
Section 73.49 of the Rules, because it failed to enclose an antenna
tower having radio frequency potential at its base within an effective
locked fence or protective perimeter property fence. We agree,
however, that the flooding surrounding the antenna tower arguably
created a semi-permanent barrier, impeding access to the tower,
thereby reducing the safety hazard posed by the lack of effective
fencing. We also note that A Radio's engineering consultant states in
a sworn affidavit that the Department of Natural Resources is
presenting "obstacles" to constructing a fence on this swampy area.
Accordingly, based on the totality of the circumstances, we reduce the
forfeiture associated with this violation to $6,000.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, A Radio, Inc.'s petition for reconsideration of
the November 3, 2006 Forfeiture Order IS hereby GRANTED IN PART and
DENIED IN PART.
8. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, A Radio, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of fourteen thousand
dollars ($14,000) for violation of Sections 73.49, 73.1350(a), and
73.3526 of the Rules.
9. Payment of the $14,000 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. 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.
10. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to A Radio, Inc. at
its address of record; and an additional copy to A Radio's legal
counsel, Audrey Rasmussen, Hall Estell Attorneys at Law, 1120 20^th
St. NW, Suite 700, North Building, Washington, DC 20036-3406.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
A Radio Company, Inc., Forfeiture Order, DA 06-2259 (Enf. Bur. South
Central Region November 3, 2006) ("Forfeiture Order").
47 C.F.R. SS 73.49, 73.1350(a), 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632680001
(Enf. Bur., San Juan Office, released October 25, 2005).
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).
47 U.S.C. S 503(b)(2)(D).
A Radio states that the easternmost antenna is not in use and does not
currently have radio frequency potential at its base, so it is not
required to be enclosed within a locked fence. However, at the time of the
inspection, the tower did have radio frequency at its base and was subject
to Section 73.49 of the Rules.
Buchanan Broadcasting, Inc., Memorandum Opinion and Order, 15 FCC Rcd 4360
(Enf. Bur. 2000).
A Radio also cites several cases in which forfeitures were issued when
agents were able to access easily the base of the tower. The petition
implies that if the agents did not access the tower base or could not
easily access the tower base, the forfeiture should be reduced. Agents are
not required to access towers having radio frequency potential at the
bases for forfeitures to be issued. Agents must observe, however, that
access is possible.
We note that Section 73.49 of the Rules also states that "Ready access
must be provided to each antenna tower base for meter reading and
maintenance purposes at all times." If the flooding around the antenna
tower significantly impeded access to the tower for meter reading and
maintenance purposes, A Radio would also have been in violation of this
provision of Section 73.49. However, this violation was not cited in the
The swamp, however, is not an absolute barrier to accessing the tower.
According to a report written by the station's consulting engineer and
dated May 21, 2005, the station's ground radial system was nonexistent at
the time. The report stated "Hearsay has it that they were stolen."
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 73.49, 73.1350(a), 73.3526.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-375
Federal Communications Commission DA 07-375