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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Birach Broadcasting Corporation Licensee of Station WTOR
Youngstown, New York ) ) ) ) ) ) ) File No.: EB-FIELDNER-12-00005058
NAL/Acct. No.: 201432400002 FRN: 0003766847 Facility ID No.: 74121
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 23, 2014 Released: January 23, 2014
By the District Director, Philadelphia Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Birach Broadcasting Corporation (Birach), licensee of AM Station
WTOR in Youngstown, New York, apparently willfully and repeatedly
violated Section 73.49 of the Commission's rules (Rules),^ by failing
to enclose the Station's antenna structures within an effective locked
fence or other enclosure. We conclude that Birach is apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000).
2. On October 18, 2012, an agent of the Enforcement Bureau's Philadelphia
Office (Philadelphia Office) conducted an inspection of Station WTOR's
three tower array, which consisted of antenna structure numbers
1024149 (Middle Tower), 1024150 (North Tower), and 1024151 (South
Tower). At the time of the inspection, the agent observed that almost
half of the fence surrounding the North Tower was lying on the ground.
When the agent tried to lift the fencing for the North Tower off the
ground, the agent found that it was very difficult because the grass
had grown through and around the fence. The agent also found that the
gate and fencing support posts for the Middle Tower had been removed
and were lying on the ground. The condition of the fences resulted in
unrestricted access to the bases of those antenna structures, both of
which had radio frequency potential at their bases. In addition, the
level of deterioration observed by the agent indicated that the fences
had been in that condition for a significant period of time. The agent
further noted that there was no fence around the perimeter of the
3. On November 7, 2012, the agent received a letter from Birach stating
that it had repaired the fences surrounding the Middle Tower and the
North Tower. The agent conducted a follow-up inspection on November
16, 2012, and confirmed that Birach had repaired the fences.
4. On December 6, 2012, the Philadelphia Office issued a Notice of
Violation to Birach based on the October 18, 2012, inspection for,
among other violations, failing to enclose the Station WTOR's antenna
structures within an effective locked fence or other enclosure, in
violation of Section 73.49 of the Rules.^ On December 19, 2012, Birach
filed a response to the NOV stating that the fences collapsed when the
station engineer was clearing the site of weeds and brush on October
16, 2012, and that the repairs took place on October 20, 2012.
5. 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
6. The evidence in this case is sufficient to establish that Birach
violated Section 73.49 of the Rules. Section 73.49 of the Rules
requires that antenna structures having radio frequency potential at
the base must be enclosed within effective locked fences or other
enclosures.^ The Rules further provide that individual tower fences
need not be installed if the towers are contained within a protective
property fence."^ The WTOR antenna structures have radio frequency
potential at their bases and therefore must be enclosed within an
effective locked fence. On October 18, 2012, when the Station was in
operation, an agent from the Philadelphia Office observed that fencing
surrounding two of the three antenna structures in the WTOR array was
missing, thereby allowing ready access to the bases. The agents also
observed that there was no fence around the perimeter of the property.
Based on the agent's observation during the inspection on October 18,
2012, the fencing appeared to have been in a state of disrepair for an
extended period of time. At a minimum, by Birach's own admission, the
fencing was in a state of disrepair from October 16, 2012, when the
fencing was damaged by the station engineer during maintenance work,
to October 20, 2012, when Birach reports the fencing was repaired.
Based on the evidence before us, we find that Birach apparently
willfully and repeatedly violated Section 73.49 of the Rules by
failing to enclose the Station WTOR's antenna structures within
effective locked fences.^
B. Proposed Forfeiture Amount
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for an AM 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.^ After
consideration of these factors, we find that a $3,000 upward
adjustment in the base forfeiture amount is warranted. Birach
previously received a Notice of Apparent Liability for Forfeiture for,
inter alia, failure to enclose an antenna structure within an
effective locked fence.^ The fact that Birach previously committed a
similar violation demonstrates a disregard for the Commission's
rules.^ Applying the Forfeiture Policy Statement, Section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
Birach is apparently liable for a total forfeiture in the amount of
IV. ORDERING CLAUSES
8. 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, Birach Broadcasting
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
violations of Section 73.49 of the Rules.^
9. 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, Birach
Broadcasting Corporation SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. 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. Birach 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.
11. 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,
12. 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, 2300 East Lincoln Highway, Langhorne,
Pennsylvania 19047 and include the NAL/Account number referenced in
the caption. Birach also shall e-mail the written response to
13. 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 practices (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
14. 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 Birach Broadcasting Corporation at
21700 Northwestern Highway, Suite 1190, Tower 14, Southfield, Michigan
48075, and to John C. Trent, Counsel for Birach Broadcasting
Corporation, at Putbrese Hunsaker & Trent, P.C., 200 South Church
Street, Woodstock, Virginia 22664.
FEDERAL COMMUNICATIONS COMMISSION
David C. Dombrowski
^ 47 C.F.R. S 73.49.
^ See Birach Broadcasting Corporation, Notice of Violation, V201332400009
(Dec. 6, 2012) (NOV).
^ 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, para. 5 (1991), recons. denied, 7 FCC Rcd
^ 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
1362, para. 9.
^ 47 C.F.R. S 73.49.
^ On November 7, 2012, the Philadelphia Office received a letter from the
WTOR station engineer stating that the fences around the three towers in
the WTOR array had been sufficiently repaired. On November 16, 2012, the
agent inspected the WTOR antenna array and found that the fences had been
repaired and access to the base of all three towers in the WTOR antenna
array was restricted.
^ 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).
^ See Birach Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture, 27 FCC Rcd 5827 (Enf. Bur. 2012).
^ Although no forfeiture has been paid in the 2012 proceeding, the
"underlying facts of [the] prior violation . . . show a pattern of
non-complaint behavior" by Birach. See Forfeiture Policy Statement, 12 FCC
Rcd at 17103, para. 34 ("[U]sing the underlying facts of a prior violation
that shows a pattern of non-compliant behavior against a licensee in a
subsequent renewal, forfeiture, transfer, or other proceeding does not
cause the prejudice that Congress sought to avoid in Section [47 U.S.C.]
504(c)."); see also Equity Communications LP, Notice of Apparent
Liability for Forfeiture, 27 FCC Rcd 8031, para. 7 (Enf. Bur. 2012) (using
the underlying facts from a prior NAL to support an upward adjustment in
the proposed forfeiture amount for an AM fencing violation from $7,000 to
^ 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 14-77
Federal Communications Commission DA 14-77