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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Jason Konarz ) File Number EB-08-OR-0213
Licensee of DWQMA-AM ) NAL/Acct. No. 200932620002
Marks, MS ) FRN 0005015425
Facility ID # 1219 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 21, 2008
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 station DWQMA-AM, in Marks,
Mississippi, apparently willfully and 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 fourteen thousand
dollars ($14,000).
II. BACKGROUND
2. On September 25 and September 26, 2008, in response to a complaint,
agents from the Commission's New Orleans Field Office of the
Enforcement Bureau ("New Orleans Office") inspected radio station
DWQMA-AM in Marks, MS. On both days, one side of the fence surrounding
the antenna structure was missing. There was substantial growth around
and through the existing fence and where the missing side of the fence
should have been, indicating that the fence side had been missing for
quite some time. There was no perimeter fence around the property. On
September 26, 2008, Mr. Konarz stated he was aware of the condition of
the fence surrounding the antenna structure, but claimed that the
fence side had been down for less than a week.
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 "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. 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 September 25 and September 26, 2008, agents from
the New Orleans Office observed that the fence surrounding DWQMA-AM's
antenna structure was missing an entire side, providing ready access
to the base of the structure. The antenna structure was confirmed to
have radio frequency potential at the base. There was no perimeter
fence around the property. There was substantial growth around and
through the existing fence and where the missing side of the fence
should have been, indicating that the fence side had been missing for
quite some time. Mr. Konarz was aware of the fence's condition.
5. Based on the evidence before us, we find that Mr. Konarz apparently
willfully and 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. On February 8, 2007, agents from
the New Orleans Office observed that the fence around station DWQMA's
antenna structure was in disrepair, allowing ready access to the base.
Mr. Konarz received a Notice of Apparent Liability and Forfeiture
Order for this violation. Because Mr. Konarz previously allowed his
antenna structure fence to fall into disrepair, we believe an upward
adjustment to $14,000 is warranted. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Mr. Konarz is apparently liable for a
$14,000 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
fourteen thousand dollars ($14,000) 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 credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank Federal Reserve Bank of New York, and
account number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554.8 If you have
questions, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
Konarz will send electronic notification on the date said payment is
made to SCR-Response@fcc.gov.
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. 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 Office
South Central Region
Enforcement Bureau
This license was cancelled on June 1, 2004. However, Mr. Konarz was
granted special temporary authority to operate on June 22, 2006.
47 C.F.R. S: 73.49.
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
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.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
See Jason Konarz, Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 200732620003 (Enf. Bur., New Orleans Office, released April 24, 2007);
Forfeiture Order, 22 FCC Rcd 10890 (Enf. Bur. 2007).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 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