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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Jason Konarz ) File Number EB-07-OR-015
Licensee of WQMA-AM ) NAL/Acct. No. 200732620003
Marks, MS ) FRN 0005015425
Facility ID # 1219 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 24, 2007
By the District Director, New Orleans Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Jason Konarz, licensee of radio station WQMA-AM, in Marks,
Mississippi, apparently repeatedly violated Section 73.49 of the
Commission's Rules ("Rules") by failing to enclose an antenna tower
with radio frequency potential at the base within an effective locked
fence. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Mr. Konarz is apparently liable
for a forfeiture in the amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. On February 8, 2007, agents from the Commission's New Orleans Office
of the Enforcement Bureau ("New Orleans Office") inspected radio
station WQMA-AM in Marks, MS. The fence of the antenna structure,
which had RF potential at the base, was in disrepair, allowing easy
access to the base of the structure. The latch on the gate could not
be closed or locked because of the condition of the fence. The fence
posts had fallen too far apart for the latch to be fastened on the
gate. The fence appeared to have been in this condition for a
significant length of time. There was no perimeter fence around the
property.
III. DISCUSSION
3. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "repeated" means the commission or omission of such
act more than once or for more than one day.
4. Section 73.49 of the Rules requires that antenna towers having radio
frequency potential at the base must be enclosed within effective
locked fences or other enclosures. However, individual tower fences
need not be installed if the towers are contained within a protective
property fence. On February 8, 2007, the gate of the fence surrounding
WQMA-AM's antenna structure was not secured and could be easily
opened, providing ready access to the base of the structure. This
antenna structure was confirmed to have radio frequency at the base.
There was no perimeter fence around the property. The deteriorated
condition of the fence could not have occurred in one day. Therefore,
the antenna structure was not enclosed within an effective locked
fence or protective property fence for more than one day.
5. Based on the evidence before us, we find that Mr. Konarz apparently
repeatedly violated Section 73.49 of the Rules by failing to enclose
a tower with radio frequency potential at the base within an effective
locked fence or other enclosure.
6. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for violation of AM tower fencing is $7,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(E) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Mr. Konarz is apparently liable for a $7,000
forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Jason Konarz is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
seven thousand dollars ($7,000) for violations of Section 73.49 of
the Rules.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Jason Konarz 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 must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
10. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, New Orleans
Office, 2424 Edenborn Ave., Suite 460, Metairie, Louisiana, 70001 and
must include the NAL/Acct. No. referenced in the caption.
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 for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.^8
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Jason Konarz at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Leroy Hall
District Director
New Orleans
South Central Region
Enforcement Bureau
47 C.F.R. S 73.49.
47 U.S.C. S 503(b).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[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."
47 C.F.R. S 73.49.
47 U.S.C. S 503(b)(2)(E).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.49.
^8 See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission