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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-02-PA-
140
)
FBS Wireless Corporation ) NAL/Acct. No.
200232400007
WFBS(AM) )
Berwick, Pennsylvania ) FRN: 0006-7296-02
) 0006-7445-51
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 12, 2002
By the District Director, Philadelphia Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that FBS Wireless Corporation (``FBS''), the
licensee of WFBS(AM), Berwick, Pennsylvania, has apparently
violated Sections 17.4(a), 17. 51(a), and 73. 49 of the
Commission's Rules (the ``Rules'').1 These violations occurred
as a result of FBS' failure to register the WFBS(AM) antenna
structure; failure to exhibit red obstruction lighting on the
WFBS(AM) antenna structure; and failure to enclose the WFBS(AM)
antenna structure with an effective locked fence. We conclude
that FBS is apparently liable for a forfeiture in the amount of
twenty thousand dollars ($20,000).
II. BACKGROUND
2. On March 19, 2002 at 11:20 a.m., FCC agent David
Dombrowski of the Enforcement Bureau's Philadelphia Office
inspected the WFBS(AM) antenna structure. During the inspection,
the FCC agent requested Kevin Fennessy, the President of FBS, to
demonstrate that the red obstruction lighting on the WFBS(AM)
antenna structure was operating properly. However, Kevin
Fennessy responded that the red obstruction lighting has not been
operational since FBS acquired the station in February, 2000.
The FCC agent also found that FBS failed to register the WFBS(AM)
antenna structure with the Commission and that the gate to the
fence surrounding the WFBS(AM) antenna structure was unlocked.
3. On April 24, 2002 at approximately 9:00 a.m., agent
Dombrowski re-inspected the WFBS(AM) antenna structure. During
the inspection, the FCC agent found that the WFBS(AM) antenna
structure was still not registered with the Commission and the
gate to the fence surrounding the WFBS(AM) antenna structure was
unlocked.
4. On May 20, 2002, the Philadelphia Office issued a
Notice of Violation to FBS Wireless Corporation for failure to
register the WFBS(AM) antenna structure with the Commission, in
violation of Section 17.4(g) of the Rules; failure to exhibit red
obstruction lighting on the WFBS(AM) antenna structure, in
violation of Section 17.51(a) of the Rules; and failure to
enclose the WFBS(AM) antenna structure with an effective locked
fence, in violation of Section 73.49 of the Rules.
5. On June 3, 2002, FBS submitted a response to the Notice
of Violation acknowledging that the antenna structure was not
registered with the Commission and that the obstruction lighting
on the WFBS(AM) antenna structure had not been operational for
ten years. FBS stated that it would immediately take actions to
register the antenna structure and repair the obstruction
lighting. However, FBS disputed that it is required to register
the antenna structure with the Commission and maintain
aeronautical marking and lighting. FBS stated that when it
acquired the station the previous licensee represented that the
antenna structure has an overall height above ground of 198 feet
and does not require aeronautical marking and lighting.
6. In the response, FBS also acknowledged that the fence
was unlocked and required improvements to effectively restrict
access to the WFBS(AM) antenna structure. FBS stated that it
made repairs to the fence by closing the 10-inch gap between the
gate and the lock post, placing 10 '' of soil at the entrance of
the tower base and installing a new chain and lock.
III. DISCUSSION
7. Section 17.4(a) of the Rules requires that effective
July 1, 1996, the owner of any proposed or existing antenna
structure that requires notice of proposed construction to the
Federal Aviation Administration (``FAA'') must register the
structure with the Commission. The WFBS(AM) license BR-3502
specifies that the overall height of the WFBS(AM) antenna
structure is 203 feet above ground. Because the antenna
structure has an overall height greater than 200 feet above
ground, it required a notice of proposed construction to the FAA
and registration with the Commission. However, the WFBS(AM)
antenna structure was unregistered from at least March 19, 2002
to June 17, 2002. Although FBS disputed that the WFBS(AM)
antenna structure has an overall height of 203 feet above ground
and requires registration with the Commission, it never provided
the Commission with any evidence to the contrary.
8. Section 17.51(a) of the Rules requires that all red
obstruction lighting shall be exhibited from sunset to sunrise
unless otherwise specified. The WFBS(AM) license BR-3502
specifies that the WFBS(AM) antenna structure must exhibit red
obstruction lighting at night. On March 19, 2002, the red
obstruction lighting on the WFBS(AM) antenna structure was not
functioning. FBS admitted in its response dated June 3, 2002
that the obstruction lighting has not been operational for ten
years. Although FBS disputed that the WFBS(AM) antenna structure
has an overall height of 203 feet above ground and requires
aeronautical marking and lighting, it never provided the
Commission with any evidence to the contrary.
9. Section 73.49 of the Rules requires that antenna towers
having radio frequency potential at the base (series fed, folded
unipole, and insulated base antennas) must be enclosed with
effective locked fences or other enclosures. On March 19, 2002
and April 24, 2002, the gate to the fence surrounding the
WFBS(AM) antenna structure was unlocked.
10. Based on the evidence before us, we find that FBS
willfully2 and repeatedly3 violated Section 17.4(a), Section
17.51(a) and 73.49 of the Rules. The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporated the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113
(1997), recon. denied, 15 FCC Rcd 303(1999) (``Forfeiture Policy
Statement''),4 sets the base forfeiture amount for FBS' failure
to exhibit red obstruction lighting at $10,000, for FBS' failure
to register the antenna structure with the Commission at $3,000
and for FBS' failure to maintain an effective locked fence at
$7,000. In assessing the monetary forfeiture amount, we must
take into account the statutory factors set forth in Section
503(b)(2)(D) of the Communications Act of 1934,5 (the ``Act''),
as amended, 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. Applying the
Forfeiture Policy Statement and the statutory factors to the
instant case and applying the inflation adjustments, we believe
that a twenty thousand dollar ($20,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
11. 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 FBS Wireless Corporation is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty
thousand dollars ($20,000) for failing to exhibit red obstruction
lighting on the WFBS(AM) antenna structure; failure to register
the WFBS(AM) antenna structure with the Commission; and failure
to maintain an effective locked fence around the WFBS(AM) antenna
structure.
12. 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, FBS Wireless Corporation SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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. 200232400007 and FRN: 0006-7296-02/0006-7445-51.
14. 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.
20554 and MUST INCLUDE THE NAL/Acct. No. 200232400007 and FRN:
0006-7296-02/0006-7445-51.
15. 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.
16. 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. 20554.8
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to FBS Wireless Corporation., 114 North Market
Street, Berwick, Pennsylvania 18603.
FEDERAL COMMUNICATIONS
COMMISSION
John E. Rahtes
District Director
Philadelphia Office
_________________________
1 47 C.F.R. §§ 17.4(a), 17.51(a) and 73.49.
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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 (1991).
3 Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
4
47 C.F.R. § 1.80.
5 47 U.S.C § 503(b)(2)(D).
6 47 U.S.C § 503(b).
7 47 C.F.R. §§ 0.111 and 0.311.
8 See 47 C.F.R. § 1.1914.