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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-01-CG-
415
)
Cumulus Licensing Corporation ) NAL/Acct. No.
200232320007
WNAM )
Oshkosh, WI. ) FRN 0002-8348-10
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August
16, 2002
By the District Director, Chicago Office, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Cumulus Licensing Corporation (``CLC''),
has apparently violated Section 73.49 of the Commission's Rules
(the ``Rules'')1 by failing to maintain an effective locked fence
or other enclosure around the base of each antenna having radio
frequency potential at the base. We conclude that CLC is
apparently liable for a forfeiture in the amount of seven
thousand dollars ($7,000).
II. Background
2. On August 7, 2001, an agent from the Commission's
Chicago Office inspected the antenna array of Radio Station WNAM.
WNAM is licensed to CLC and located in Oshkosh, Wisconsin.
During the inspection, the agent observed that one of the
station's antennas was not enclosed within an effective locked
fence or other enclosure.
3. The Chicago Office issued a Notice of Violation to CLC
on September 6, 2001, detailing the violation. In their reply
dated September 18, 2001, CLC indicated that their employee, Mr.
Jeff Schmidt, ``....supervised the completion of the new fencing
on September 18, 2001.''
III. Discussion
4. Section 73.49 requires that antenna towers having radio
frequency potential at the base be enclosed within effective
locked fences or other enclosures. During the inspection of the
WNAM array on August 7, 2001, the agent found a fence had fallen
over, allowing unrestricted access to the base of the antenna.
Per the licensee's reply, it was not repaired until September 18,
2001.
5. The Commission assesses monetary forfeitures pursuant
to Section 503(b) of the Communications Act of 1934, as amended,
(the ``Act'')2 as implemented in Section 1.80 of the Rules.3 A
forfeiture may be assessed against a person who the Commission
finds to have willfully4 failed to comply with the provisions of
the Act or the Rules. Forfeiture amounts are decided in
accordance with Section 503(b)(2)5 of the Act and the
Commission's forfeiture guidelines in Section 1.80(b)(4) of the
Rules.6
6. Based on the evidence before us, we find that CLC
willfully violated Section 73.49 of the Rules by allowing
unrestricted access to the base of their antenna. Pursuant to
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement''), the base forfeiture
amount for AM tower fencing violations 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, which include the nature, circumstances,
extent, and gravity of the violation(s), 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.7 After applying the Forfeiture Policy Statement and the
statutory factors to the instant case, we believe a $7,000
forfeiture is warranted.
IV. Ordering Clauses
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80 of the
Rules,8 Cumulus Licensing Corporation is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand dollars ($7,000) for willful violation of Section 73.49
of the Rules.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Cumulus Licensing Corporation SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
9. 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. 200232320007 and FRN 0002-8348-10.
10. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20402 and MUST INCLUDE THE NAL/Acct. No. 200232320007 and FRN
0002-8348-10.
11. 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.
12. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Cumulus Licensing Corporation, 3535
Piedmont Road Building 14, 14th Floor, Atlanta, GA., 30305.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
District Director
Chicago Office
_________________________
1 47 C.F.R. § 73.49.
2 47 U.S.C. § 503(b).
3 47 C.F.R. § 1.80.
4 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 provisions of the 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).
5 47 U.S.C. § 503(b)(2)
6 47 C.F.R. § 1.80(b)(4)
7 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement,
12 FCC Rcd at 17100-01.
8 47 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.