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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Sound Communications, LLC Owner of Antenna Structure
Number 1053420 Licensee of AM Station WENY Southport, New York ) ) ) ) ) )
File No.: EB-FIELDNER-13-00009899 NAL/Acct. No.: 20142400005 FRN:
0019815109 Facility ID No.: 71510
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 2, 2014 Released: June 2, 2014
By the District Director, Philadelphia Office, Northeast Region,
1. We propose a penalty of $7,000 against Sound Communications, LLC
(Sound Communications) for apparently failing to enclose AM Station
WENY's antenna structure in Southport, New York, within an effective
locked fence. Sound Communications admitted to leaving a gate unlocked
for several days so that personnel from a tower repair company could
gain access to the antenna structure site in order to prepare a bid
for a repair project. The unlocked gate was of particular concern to
FCC agents because the antenna structure is located in a residential
2. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Sound Communications, licensee of Station WENY and owner of
antenna structure number 1053420 (Antenna Structure) in Southport, New
York, apparently willfully and repeatedly violated Section 73.49 of
the Commission's rules (Rules),^ by failing to enclose the antenna
structure within an effective locked fence. We conclude that Sound
Communications is apparently liable for a forfeiture in the amount of
seven thousand dollars ($7,000).
3. On July 11, 2013, at 7:00 p.m., an agent of the Enforcement Bureau's
Philadelphia Office conducted a random inspection of the Antenna
Structure, which is located along Milton Street in Southport, New
York, and is utilized as the transmission antenna for AM Station WENY.
During the inspection, the agent observed that the fence was in good
condition, the gate was closed, the padlock was on the gate's hasp,
but the padlock was not locked. The unlocked padlock allowed
unrestricted access to the Antenna Structure which had radio frequency
(RF) potential at its base and was located near a residential area.
There was no perimeter fence around the property where the antenna
structure was located.
4. On July 12, 2013, the agent spoke by telephone to the station engineer
for Sound Communications, who reported that he was last at the site on
or about June 29, 2013. He further reported that he left the gate
unlocked that day so that a contractor could access the Antenna
5. On July 30, 2013, the Philadelphia Office issued Sound Communications
a Notice of Violation for failing to enclose the Antenna Structure
within an effective locked fence or other enclosure.^ On August 16,
2013, Sound Communications submitted a response to the Notice of
Violation, confirming that the station engineer intentionally left the
gate unlocked to allow personnel from a tower repair company to access
the site in order to finalize a proposed bid for a tower repair
project.^ Sound Communications also clarified that the station
engineer was at the site on July 5, 2013, not on or about June 29,
2013, as previously reported by the station engineer.
6. Section 503(b) of the Communications Act of 1934, as amended (Act)
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty.^ Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law.^ The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act,^ and the Commission has so
interpreted the term in the Section 503(b) context.^ The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful.^ The term "repeated" means the commission or omission
of such act more than once or for more than one day.^
A. Failure to Enclose the Antenna Structure Within an Effective Locked
Fence or Other Enclosure
7. The evidence in this case is sufficient to establish that Sound
Communications violated Section 73.49 of the Rules. Section 73.49 of
the Rules states that antenna structures "having radio frequency
potential at the base . . . must be enclosed within effective locked
fences or other enclosures." Individual fences need not be installed
if the antenna structures are contained within a protective property
fence. Station WENY's antenna structure has radio frequency potential
at the base.^ On July 11, 2013, an agent from the Philadelphia Office
observed that the gate for the fence surrounding the Antenna Structure
was left unlocked during a time when Station WENY was in operation.
Sound Communications admitted in its NOV Response that the fence had
intentionally been left unlocked by the station engineer on July 5,
2013, and that it remained open until the agent's inspection on July
11, 2013. There was no perimeter fence surrounding the property. Based
on the evidence before us, we find that Sound Communications
apparently willfully and repeatedly violated Section 73.49 of the
Rules by failing to have an effective locked fence or other enclosure
around the base of its antenna structure.
B. Proposed Forfeiture
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for an AM tower fencing
violation is $7,000.^ In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth in Section
503(b)(2)(E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, 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.^
Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that Sound
Communications is apparently liable for a total forfeiture in the
amount of $7,000.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Sound
Communications, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of seven thousand dollars ($7,000) for
violations of Section 73.49 of the Rules.^
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture Sound
Communications LLC SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Sound Communications shall also send
electronic notification on the date said payment is made to
NER-Response@fcc.gov. Regardless of the form of payment, a
completed FCC Form 159 (Remittance Advice) must be submitted.^ When
completing the FCC Form 159, enter the Account Number in block number
23A (call sign/other ID) and enter the letters "FORF" in block number
24A (payment type code). Below are additional instructions you
should follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
12. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554.^ If you have questions
regarding payment procedures, please contact the Financial Operations
Group Help Desk by phone, 1-877-480-3201, or by e-mail,
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Philadelphia Office, One Oxford Valley Building, Suite 404,
2300 East Lincoln Highway, Langhorne, Pennsylvania 19047 and include
the NAL/Acct. No. referenced in the caption. Sound Communications also
shall e-mail the written response to NER-Response@fcc.gov.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting principles (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and first class mail to Sound Communications LLC at 15
Woodland Way, Painted Post, New York 14870 and Drinker Biddle & Reath
LLP, 1900 K Street, N.W.,Washington, D.C. 200005-1209.
FEDERAL COMMUNICATIONS COMMISSION
David C. Dombrowski
^ 47 C.F.R. S 73.49.
^ See Sound Communications, LLC, Notice of Violation, V201332400035 (July
30, 2013) (on file in EB-FIELDNER-13-00009899).
^ Letter from Alisa R. Lahey, Drinker Biddle & Reath LLP, Counsel for
Sound Communications LLC, to Philadelphia Office, Northeast Region,
Enforcement Bureau (August 16, 2013) (on file in EB-FIELDNER-13-00009899)
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
^ See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
^ Section 312(f)(2) of the Act, 47 U.S.C. S 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." See Callais Cablevision, Inc., 16 FCC Rcd at
^ See License File No. BL-19990804DE.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
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Federal Communications Commission DA 14-742
Federal Communications Commission DA 14-742