Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-NF-113
)
Hoffman Communications, ) NAL/Acct. No. 200232640008
Incorporated )
Licensee of WGGM and Owner of ) FRN 5011671
Antenna Structures 1040995, )
1040996 and 1040997 in
Chester, Virginia
Alexandria, Virginia
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 30, 2002
By the Enforcement Bureau, Norfolk Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Hoffman Communications, Incorporated
(``HCI''), licensee of AM Station WGGM and owner of the cited
antenna structures, apparently liable for a forfeiture in the
amount of twenty-one-thousand dollars ($21,000) for willful and
repeated violations of Sections 73.49, 17.21 and 73.1745(a) of
the Commission's Rules (``Rules'').1 Specifically, we find HCI
apparently liable for failing to maintain effective fencing
around its antenna structures (``towers''), for failing to
install prescribed lighting, and for exceeding authorized
nighttime power limits.
II. BACKGROUND
2. HCI has a license for WGGM to broadcast with 10.5 and
1.08 kilowatts during the day and night, respectively, on 0.820
MHz to the community of Chester, Virginia. The license for WGGM
limits field strength levels at three locations during the day
and at three others during the night. Its three towers are
located at the North American Datum 27 latitudes and longitudes
of North 37-22-55 & West 077-25-43, North 37-22-54 & West 077-25-
40 and North 37-22-53 & West 077-25-38. All three towers are
taller than 61 meters above ground; all are registered; and all
have a prescription for painting and lighting as specified FAA
Circular Number 70/7460-1J Chapters 3, 4, 5, and 13.
3. On April 12, 1999, the Commission's Norfolk Office
released a Notice of Violation to HCI regarding the operations of
WGGM citing, inter alia, violations of Sections 17.21 and 73.49.
A Norfolk Office agent observed the violations on March 11, 1999.
4. On August 19, and August 20, 2002, the same agent again
observed HCI's WGGM operations and facilities in Chester,
Virginia. On both days while WGGM was broadcasting with its
three towers, the fencing around the base of each antenna was
ineffective. Whole sections of fencing around two of the towers
were down while fence pickets around another were missing or
separated. With the exception of thick brush around one tower,
the condition of all three fences allowed unobstructed access to
the base of the energized towers.
5. On August 19, 2002, the agent observed two of HCI's
structures without the installation of lighting. After sunset,
he noted that the two towers failed to exhibit lighting. He made
the same observations on August 20, 2002.
6. After sunset on August 19, and on August 20, 2002, the
agent made field strength measurements at the monitoring points
specified in the WGGM license. On both nights at two of the
three nighttime monitoring point locations, WGGM exceeded field
strength limits by more than 150% of the values specified in its
license.
7. In response to the agent's request for information that
might mitigate the noted violations, HCI sent the Norfolk Office
an email, a letter and a fax on August 21, August 22, and on
September 3, 2002, respectively. HCI stated that it had ceased
its nighttime operations and that it received an estimate to
repair fencing. Concerning its two towers without installed
lighting, HCI wrote that it contacted its consultant who thought
that a mistake was made by the company HCI hired to register its
towers. HCI's response contained several pages from the FAA and
a drawing of the two towers without lighting, but it submitted
nothing to suggest that lighting was not required.
III. DISCUSSION
8. Section 73.49 requires licensees to provide locked and
effective fencing around antenna structures with radio frequency
potential at their bases. On August 19 and 20, 2002, WGGM's
three antenna structures were energized for transmitting without
fencing that would obstruct access to the base of each tower.
9. Section 17.21(a) requires tower owners to paint and
light their towers when they exceed 60.96 meters above ground.
HCI's towers exceeded 60.96 meters in height above ground and
were required to exhibit painting and lighting pursuant to the
towers' registrations and FAA specifications. On August 19 and
20, 2002, two of HCI's three WGGM towers were without any
installation of lighting.
10. Section 73.1745(a) prohibits licensees from operating
at times, or with modes or power, other than those specified and
made part of the license. After sunset on August 19 and 20,
2002, WGGM exceeded field strength limits at two nighttime
monitoring points by over 150%.
11. Based on the evidence before us, we find HCI,
willfully2 and repeatedly3 violated Sections 73.49, 17.21 and
73.1745(a) of the Rules by failing to maintain effective fencing,
by failing to install prescribed lighting and for exceeding
nighttime power limits.
12. Pursuant to Section 1.80(b)(4) of the Rules,4 the base
forfeiture amount for failing to maintain effective fencing is
$7,000; for failing to install prescribed lighting it is $10,000
and for exceeding authorized power limits it is $4,000. 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 Communications Act of 1934, as amended (``Act''), which
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.5 Considering the
entire record and applying the factors listed above, this case
warrants a $21,000 forfeiture.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,6 and Sections 0.111, 0.311 and 1.80 of the
Rules,7 HCI is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty-one thousand dollars ($21,000)
for willful and repeated violation of Sections 73.49, 17.21 and
73.1745(a) of the Rules by failing to maintain effective fencing,
by failing to install prescribed lighting and for exceeding power
limits.
14. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
HCI SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
15. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. and FRN referenced above. Requests for payment of
the full amount of this NAL under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.8
16. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE NAL/Acct.
No. referenced above.
17. 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 documentation
submitted.
18. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Hoffman Communications, Incorporated, 2461 Eisenhower Avenue,
Alexandria, VA, 22331.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Husnay
Resident Agent, Norfolk Office,
Enforcement Bureau Hoffman Communications Incorporated
2461 Eisenhower Avenue
Alexandria VA 22331
Hoffman Communications Incorporated
2461 Eisenhower Avenue
Alexandria VA 22331
Hoffman Communications Incorporated
2461 Eisenhower Avenue
Alexandria VA 22331
_________________________
1 47 C.F.R. §§ 73.49, 17.21 and 73.1745(a).
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), 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 . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
3 The 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.'' 47 U.S.C. §
312(f)(2).
4 47 C.F.R. § 1.80(b)(4).
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.