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                                   Before the

                       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          )                               

                                FORFEITURE ORDER

   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
       the fence.

    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


    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: with any questions regarding payment procedures. 
       Radio Plus, Inc. shall also send electronic notification on the date
       said payment is made to

   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.


   G. Michael Moffitt

   Acting Regional Director, Northeast Region

   Enforcement Bureau

   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