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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Culpeper Broadcasting Corporation ) File No. EB-99-
CF-014
WCVA )
Culpeper, VA ) NAL/Acct. No.
X3234001
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 7, 2000 Released: February
7, 2000
By the Enforcement Bureau: Columbia Office
I. INTRODUCTION
1. This is a Notice of Apparent Liability for monetary
forfeiture issued pursuant to Section 503(b) of the
Communications Act of 1934, as amended, (the ``Act'') 47
U.S.C. § 503(b), and Section 1.80 of the Commission's Rules
(the ``Rules"), 47 C.F.R. § 1.80, to Culpeper Broadcasting
Corporation, licensee of WCVA, Culpeper, Virginia for
willful violation of Sections 73.49 and 73.1560(a) of the
Rules, 47 C.F.R. § 73.49, failure to maintain effective
locked fence around the base of each antenna having radio
frequency potential at the base, and § 73.1560(a), failure
to maintain power within 90% to 105% of authorized. The
appropriate amount of forfeiture for this violation is
determined to be nine thousand dollars ($9,000).
II. BACKGROUND
2. Station WCVA, licensed to Culpeper Broadcasting
Corporation, was inspected on November 16, 1999 by Agent
James Walker from the Commission's Columbia, Maryland Field
Office. During that inspection, it was discovered that
several vertical boards were missing from the fence
enclosing the base of the antenna tower. When a station
staff member was unable to locate a key to the gate, he
swung the hinge side of the gate away from the fence. His
ease in moving the gate and apparent confidence that it
would move, indicated to the inspector that he had prior
knowledge that the gate hinges were not secured to the
fence. Each of these deficiencies would allow relatively
easy access to the shunt excited antenna tower, which has
radio frequency potential at the base.
3. Also during that inspection, it was determined that
the station was operating at 942 watts (138% of the
authorized 680 watts). There was a memo posted on the
station's transmitting equipment explaining how to calculate
the power and specifying the authorized power of 680 watts,
as well as the upper and lower limits.
4. A Notice of Violation was issued on November 23,
1999 detailing these and other violations noted. In a reply
received December 9, 1999, Culpeper Broadcasting Corporation
states that the fence has been repaired and that operators
will be re-trained ``to better understand the significance
of the findings after taking the transmitter readings.''
III. DISCUSSION
5. Section 73.49 of the Rules requires that antennas
having radio frequency potential at the base be enclosed
within an effective locked fence or other enclosure.
Culpeper Broadcasting Corporation failed to have WCVA's
antenna enclosed within an effective locked fence or other
enclosure on at least November 16, 1999. The licensee's
representative indicated, by a statement and his actions, a
prior knowledge that the fence was not secure.
6. Section 73.1560(a) requires that AM broadcast
stations maintain the antenna input power within 90% to 105%
of the authorized power. The presence of clear instructions
posted on the transmitting equipment detailing the limits of
the operating power and how to determine it is evidence that
the licensee was aware of the requirement.
7. Based on the evidence before us, we find that
Culpeper Broadcasting Corporation operated in willful1
violation of Sections 73.49 and 73.1560(a) of the Rules. The
Commission's Forfeiture Policy Statement 12 FCC Rcd 17087
(1997), (``Policy Statement''), sets the base amounts for
these violations at seven thousand dollars ($7,000) for the
fencing violation and four thousand dollars ($4,000) for the
operating power violation. In assessing the monetary
forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) that
include 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.
Applying the Policy Statement and statutory factors to the
instant case, we believe that a monetary forfeiture in the
amount of nine thousand dollars ($9,000) is warranted. This
amount reflects a reduction for the violation of section
73.1560(a), overpower, of 50% due to the station's history
of compliance. However, due to the safety issue concerning
the lack of tower base protection, the base amount of seven
thousand dollars ($7,000) for violation of Section 73.49 is
appropriate.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Communications Act, 47 U.S.C. §
503(b), and Section 1.80 of the Commission's Rules, 47
C.F.R. § 1.80, Culpeper Broadcasting Corporation is hereby
NOTIFIED of its APPARENTLY LIABILITY FOR A FORFEITURE in the
amount of nine thousand dollars ($9,000) for violating
Sections 73.49 and 73.1560(a) of the Commission's Rules.
The amount specified was determined after consideration of
the factors set forth in Section 503(b)(2)(D) of the Act, 47
U.S.C. § 503(b)(2)(D) and the guidelines enumerated in the
Policy Statement.
9. IT IS FURTHER ORDERED THAT, pursuant to Sections
1.80(f)(3) and (h) of the Commission's Rules, 47 C.F.R. §§
1.80(f)(3) and (h), within thirty (30) days of the date of
release of this NOTICE OF APPARENT LIABILITY, Culpeper
Broadcasting Corporation SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written response showing
why the forfeiture should be reduced or not imposed. Any
written response must include a detailed factual statement
and supporting documentation.2 Forfeitures shall be paid by
check, money order, or credit card, with the appropriate
documentation, made payable to the Federal Communications
Commission.3 The remittance should be marked ``NAL/Acct.
No: X3234001'', and mailed to the following address:
Federal Communications Commission
P.O. Box 73482
Chicago, IL 60673-7482
Send or mail any written responses regarding the reasons why
the forfeiture should be reduced or not imposed to:4
Office of the Secretary
Federal Communications Commission
445 12th Street, S. W.
Washington, D.C. 20554
ATTN: Enforcement Bureau
Technical and Public Safety
Division
Any written response should be marked ``NAL/Acct.No:
X3234001'', and should focus on the mitigating factors
outlined in the Policy Statement and Section 503 of the Act.
10. IT IS FURTHER ORDERED THAT this notice shall be
sent, by certified mail, return receipt requested, to
Culpeper Broadcasting Corporation, c/o Robert A. DePont, 140
South Street, Annapolis, MD 21404. A copy shall be sent,
by first class mail, to Culpeper Broadcasting Corporation,
P.O. Box 699, Culpeper, VA 22701.
FEDERAL COMMUNICATIONS COMMISSION
Charles C. Magin
District Director
Columbia Office
_________________________
1Section 312(f)(1), which also applies to Section
503(b), provides: ``the 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 or by a treaty ratified by the United
States.'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387(1991).
2 Claims of inability to pay should be supported by
tax returns or other financial statements prepared under
generally accepted accounting procedures for the most recent
three-year period.
3 Requests for payment under installment plans
should be mailed to: Chief, Credit & Debt Management Center,
445 12th Street, S.W., Washington, D.C. 20554. Payment of
the forfeiture in installments may be considered as a
separate matter in accordance with Section 1.1914 of the
Commission's Rules. Contact Chief, Credit & Debt Management
Center at (202) 418-1995 for more information on payments by
credit card.
4 For example, you must support your claim that you
qualify as a small business and may therefore be eligible
for a potential reduction in the amount of this forfeiture
pursuant to the Small Business Regulatory Enforcement
Fairness Act, Pub. L. 104-121, 110 Stat. 858 (1996). If you
have any questions on this subject, please contact the
Commission's Office of Communications Business Opportunities
at (202) 418-0990.