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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Radio Plus, Inc. ) File No.: EB-07-CG-139
Licensees of AM Station WFDL ) NAL/Acct. No.: 20073232002
Waupun, Wisconsin ) FRN: 0006949911
Facility ID No. 42092 )
Adopted: July 1, 2008 Released: July 3, 2008
By the Acting 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 Radio Plus, Inc.
("Radio Plus"), licensee of AM radio station WFDL in Waupun,
Wisconsin, for willfully and repeatedly violating Section 73.49 of the
Commission's Rules ("Rules") by failing to enclose the WFDL antenna
tower within an effective locked fence or other enclosure. In this
Order, we consider Radio Plus's arguments that the forfeiture amount
should be cancelled or reduced because the violation was not willful
and in light of its remedial efforts.
2. On February 6, 2007, an agent from the Enforcement Bureau's Chicago
Field Office conducted an inspection of the AM antenna tower used by
Radio Plus to broadcast AM station WFDL. The WFDL antenna tower is
series fed and, therefore, required to be fenced. Upon inspection of
the WFDL antenna tower, the agent found that the antenna tower did not
have a locked fence or an effectively locked enclosure surrounding the
base of the tower. The wooden fence was found to be in poor condition.
The top of the fence had pieces missing and the gate had a large area
where the wooden slats were broken or missing. The fence gate was open
and did not have a lock. The antenna site, located in Waupun,
Wisconsin, is approximately 1300 feet northeast from Waupun Middle
School and sports field. Notwithstanding the tower's proximity to a
school, the agent noted that there was no perimeter fence surrounding
the property upon which the antenna structure was sited to prevent the
public from accessing the tower. Later that day, the agent advised the
Chief Operator and the General Manager of WFDL of the lack of an
effectively locked enclosure surrounding the base of the WFDL tower.
The Chief Operator and General Manager acknowledged the condition of
3. On July 27, 2007, the Chicago Field Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $7,000 to Radio Plus
for failure to enclose the WFDL antenna tower within an effective
locked fence as required under Section 73.49 of the Rules. In its
response, Radio Plus does not dispute the condition of the fence at
the time of the agent's inspection on February 6, 2007. Radio Plus
states, however, that its actions were not willful and that, prior to
the inspection, it had contacted contractors and that contractor
availability and weather conditions prevented it from replacing the
fence until the springtime. In this regard, Radio Plus submitted a
proposal that it had obtained from a contractor in September 2006.
Radio Plus also notes that, after the agent's inspection, Radio Plus
requested that the contractor replace the fence as soon as the weather
permitted. A new fence was completed on March 9, 2007. Radio Plus's
response to the NAL also included a statement from the station's chief
engineer, who states that he did not believe the condition of the
fence was a danger to the public. The chief engineer further states
that he is not sure exactly how the gate became open, but believes
that it may have resulted from a rotten gate latch that blew open from
snow and wind.
4. The proposed 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 ("Forfeiture
Policy Statement"). In examining Radio Plus'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 other such matters as justice may
require. As discussed below, we have considered Radio Plus's response
to the NAL in light of these statutory factors and have found that
reduction or cancellation of the proposed forfeiture amount is not
5. Section 73.49 of the Rules states that antenna towers having radio
frequency potential at the base (series fed, folded unipole, and
insulated base antennas) must be enclosed within effective locked
fences or other enclosures. Individual tower fences need not be
installed if the towers are contained within a protective property
fence. Because WFDL broadcasts from a series-fed tower and there is
no perimeter fence, the tower must be enclosed within an effective
locked fence. As described above, at the time of the February 6, 2007
inspection, an agent found that the condition of the fence and gate,
combined with the fact that the gate was open and did not have a lock,
rendered the fence ineffective. Because the fence was in need of
repair since at least September 2006, i.e., the date Radio Plus
obtained a proposal from a contractor, we find that the violation was
repeated. Having found that the violation was repeated, we do not need
to determine whether the violation was willful. We nevertheless
address Radio Plus's claim that the violation was not willful.
6. Section 312(f)(1) of the Act, which applies to violations for which
forfeitures are assessed under 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 or any rule or regulation of the Commission
authorized by this Act...." "Willful" does not require a finding that
there was an intent to engage in a violation. Radio Plus does not
dispute the agent's findings, which showed that the fence surrounding
the tower was in such disrepair that the fence was rendered
ineffective. By failing to repair the fence in a timely manner, it was
Radio Plus's "omission" that resulted in its willful violation of
Section 73.49 of the Rules.
7. We decline to reduce the proposed forfeiture amount based on Radio
Plus's remedial efforts. Reductions based on good faith efforts to
comply generally involve situations where violators demonstrated that
they initiated measures to correct or remedy violations prior to the
Commission's involvement. Radio Plus's replacement of the fence after
the February 6, 2007, inspection by the Chicago agents therefore does
not support a good faith reduction. Further, we do not believe that
Radio Plus's alleged efforts prior to the inspection warrant a good
faith reduction. Although Radio Plus claims that weather and
contractor availability prevented it from fixing the fence until the
springtime, Radio Plus received a contractor proposal on September 17,
2006, and Radio Plus does not provide any explanation as to why the
fence could not have been fixed at that time. Indeed, notwithstanding
its claim that weather prevented the fence from being fixed until
springtime, the fence was in fact fixed by March 9, 2007, as a direct
result of the FCC agent's inspection on February 6, 2007. Finally, we
believe that the fact that the gate was open and did not have a lock
shows a level of neglect that negates any effort prior to the
inspection that might have warranted a good faith reduction.
Consequently, we decline to reduce the forfeiture amount on this
IV. ORDERING CLAUSES
8. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Radio Plus, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $7,000 for willfully
and repeatedly violating Section 73.49 of the Rules.
9. 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. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Radio Plus, Inc. shall also send electronic notification on the date
said payment is made to NER-Response@fcc.gov
10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Radio Plus,
Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Acting Regional Director, Northeast Region
47 C.F.R. S: 73.49.
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)(E).
47 C.F.R. S: 73.49
See Section 503(b)(1) of the Act, 47 U.S.C. S: 503(b)(1) (violator liable
for forfeiture if violation is willful or repeated).
47 U.S.C. S: 312(f)(1).
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
Id., citing MCI Telecommunications Group, 3 FCC Rcd 509, 514 n.22 (1988);
Hale Broadcasting Corporation, 79 FCC Rcd 169, 171 (1980).
Cumulus Licensing Corp., Memorandum Opinion and Order, 23 FCC Rcd 5286
(2008) (post-notification remedial efforts do not warrant mitigation of
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.49.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1566
Federal Communications Commission DA 08-1566