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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
ARS Broadcasting Corp. ) File No. 99CG160
WOOO )
Shelbyville, Indiana ) NAL/Acct. No.
X3232-001
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 8, 2000 Released:
February 8, 2000
By the Enforcement Bureau: Chicago Office
I. INTRODUCTION
1. This is a Notice of Apparent Liability for
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, for willful and repeated
failure to maintain effective locked fences around the base
of each antenna having radio frequency potential at the
base. We conclude that ARS Broadcasting Corp. is apparently
liable for forfeiture in the amount of seven thousand
dollars ($7,000).
II. BACKGROUND
2. ARS Broadcasting Corp. is the licensee of broadcast
station WOOO, Shelbyville, Indiana.
3. On April 2, 1999, Agent James M. Roop from the
Chicago Office visited radio station WOOO as a result of a
complaint of improperly illuminated antenna tower
structures. Inspection of the antenna tower structures
found that the gate of the east1 tower was not locked and
the gate of the center tower was standing open. These
issues were brought to the attention of general manager Mr.
Tom Hession at the time of inspection during the evening of
April 2, 1999.
4. On April 16, 1999, Agent Larry Hickman re-visited
station WOOO and found the gate on the east tower to be
unlocked.
5. An Official Notice was issued on April 22, 1999
citing non-compliance with 47 C.F.R. § 73.49.
6. ARS Broadcasting Corporation's response of April 30,
1999 attributed the non-compliance to a contractor.
III. DISCUSSION
7. In accordance with 47 C.F.R. § 73.49, antenna
towers having radio frequency potential at the base must be
enclosed within effective locked fences or other enclosures.
ARS Broadcasting Corp. was in violation of 47 C.F.R. § 73.49
by not having the gates secured and locked. The violation
was repeated. The gate on the east tower was found to be
unlocked during the second tower inspection on April 16,
1999, after the conditions were brought to the attention of
general manager Tom Hession on April 2, 1999.
8. Licensees bear the total responsibility for
ensuring that the action of its employees or contractors do
not result in non-compliance with the rules. The violations
were willful.2
9. Pursuant to the Forfeiture Policy Statement, 12 FCC
Rcd 17087 (1997), (``Policy Statement''), the base amount
for this type of violation is seven thousand dollars
($7,000). In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Act, 47 U.S.C. §
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 seven thousand dollars
($7,000) is warranted.
IV. ORDERING CLAUSES
10. 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, that ARS Broadcasting Corp. is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand dollars ($7,000) for violating 47
C.F.R. § 73.49. 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.
11. 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, ARS
Broadcasting Corp. 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.3 Forfeitures shall be paid by
check, money order, or credit card, with the appropriate
documentation, made payable to the Federal Communications
Commission.4 The remittance should be marked ``NAL/Acct.
No: X3232-001'' 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:5
Office of the Secretary
Federal Communications Commission
445 12th St. SW
Washington, D.C. 20554
ATTN: Enforcement Bureau
Technical and Public Safety
Division
Any written response should be marked ``NAL/Acct. No: X3232-
001'' and should focus on the mitigating factors outlined in
the Policy Statement and Section 503 of the Act.
12. IT IS FURTHER ORDERED THAT this notice shall be sent,
by certified mail, return receipt requested, to ARS
Broadcasting Corp., P.O. Box 15435, Cincinnati, Ohio 45215.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
District Director
Chicago Office
_________________________
11The east tower was identified as the ``south'' tower in
the April 22, 1999 notice of violation.
2 Section 312(f)(1), which also applies to Section
503(b), provides: [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 or by a treaty ratified by the United
States. See Southern California Broadcasting Co., 6 FCC Rcd
4387 (1991).
3 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.
4 Requests for payment under installment plans should be
mailed to: Chief, Credit and Debt Management Center, 445
12th St. SW, 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 and Debt Management Center at
(202) 418-1995 for more information on payments by credit
card.
5 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.