Click here for Adobe Acrobat version
Click here for Microsoft Word version


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                 )
J & W Promotions, Inc.           )
                                )    File No. EB-02-AT-277
Licensee of AM Radio Station     )
WAPZ, Wetumpka, Alabama, and     )    NAL/Acct No. 200232480016
Owner of Unregistered Antenna    )
Structure Located at 32 29'     )    FRN 0007-4715-50
06'' N Latitude by 086 12'      )
25'' W Longitude Wetumpka, 

                        FORFEITURE ORDER

   Adopted:  October 28, 2003           Released:  October 30, 

By the Chief, Enforcement Bureau:

                    I.   INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary forfeiture  in  the  amount of  three  thousand  dollars 
($3,000.00) to J &  W Promotions, Inc. (``J  & W''), for  willful 
violations  of  Sections  11.35(a),  17.4(a)  and  73.49  of  the 
Commission's Rules (``Rules'').1  The noted violations involve  J 
& W's failure  to ensure  that Emergency  Alert System  (``EAS'') 
equipment was installed and operational, to register its  antenna 
structure with  the  Commission,  and to  maintain  an  effective 
locked fence around the base of the antenna structure.

     2.   On August 28, 2002, the Commission's Atlanta,  Georgia, 
Field Office  (``Atlanta Office'')  issued a  Notice of  Apparent 
Liability for Forfeiture (``NAL'') to J  & W for a forfeiture  in 
the  amount  of  eighteen  thousand  dollars  ($18,000)  alleging 
willful violation of Sections 11.35(a), 17.4(a), and 73.49 of the 
Commission's Rules.2  J  & W  filed its  response to  the NAL  on 
November 20, 2002.

                    II.  BACKGROUND

     3.   J &  W  is  the  licensee of  AM  radio  station  WAPZ, 
Wetumpka, Alabama and owner  of  the station's antenna  structure 
located at 32  29' 06'' North   latitude by 086  12' 25''  West 
longitude.  On July 25,  2002, an agent  from the Atlanta  Office 
conducted a routine inspection of  the EAS equipment for  Station 
WAPZ.    At the time of  the agent's inspection, the station  had 
no EAS equipment  installed or  operational. The  agent found  no 
station logs indicating that the  EAS equipment had been  removed 
for repair, or that there had ever been operational EAS equipment 
at the station.  While  at the station,  the agent inspected  the 
station's antenna structure.  During  this inspection, the  agent 
did not  observe  an  Antenna  Structure  Registration  (``ASR'') 
number for  the  antenna tower  anywhere  near the  base  of  the 
structure.   The  agent inspected  the  station with  Mr.  Robert 
Henderson, the station's Chief Executive Officer (``CEO'').   Mr. 
Henderson stated  that  J &  W  owned  the antenna  and  that  he 
believed that the tower  was properly registered3   Additionally, 
while inspecting the station's tower, the agent observed that the 
waist to chest high base  fencing enclosing the AM antenna  tower 
was missing  the top  horizontal  plank thereby  permitting  easy 
access to  a tower  which has  radio frequency  potential at  its 

     4.   On August 28, 2002, the Atlanta Office issued a NAL for 
a forfeiture in  the amount of  $18,000 to  J & W  for the  noted 
violations.  In  its response,  filed November  20, 2002,  J &  W 
denies any violation  and states  that its  antenna structure  is 
registered and the equipment and fence were removed for repair at 
the time of inspection.  Additionally,  J & W seeks  cancellation 
or reduction  of the  proposed monetary  forfeiture.  In  support 
thereof, J &  W submits tax  returns from 1999  - 2000.   Despite 
requesting additional time to produce documentation in support of 
its request for  cancellation of  the proposed  fine, J  & W  has 
produced no such documentation. 

                         III  DISCUSSION

     5.   The  proposed  forfeiture  amount  in  this  case   was 
assessed in accordance with Section 503(b) of the  Communications 
Act of 1934, as amended  (``Act''),4 Section 1.80 of the  Rules,5 
and 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)  (``Policy  Statement'').   In  examining  J  &   W's 
response, Section 503(b) of the Act requires that the  Commission 
take into account 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.6

     6.   Section 11.35(a) of the  Rules requires that  broadcast 
stations have operational EAS equipment.7  During the  inspection 
no EAS  equipment  was present  as  required by  our  Rules.   No 
evidence supporting possession or  ownership of EAS equipment  by 
J& W Promotions, was  presented to the  agent.  No equipment  was 
present, nor were any records (station logs, a repair order or  a 
purchase order) presented  to the agent  which substantiated  the 
existence of EAS  equipment during  the agent's  presence at  the 
station.  Additionally,  J &  W's response  to the  NAL does  not 
include any  documentation  to support  its  claim that  the  EAS 
equipment was removed for repair  at the time of the  inspection.  
Accordingly, we  conclude  J  &  W  willfully8  violated  Section 
11.35(a)  of  the  Rules  by  failing  to  have  operational  EAS 
equipment installed at the station during the agent's inspection.

     7.   Section 17.4 of the Rules  requires that after 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.9   Section  17.7(a) of  the Rules  requires 
tower structures over 60.96 meters  (200 feet) in height to  have 
the owner  give  notification of  the  tower's existence  to  the 
Federal  Aviation  Administration.10    According  to  the   WAPZ 
license, its tower is 300 feet in height.  Thus, the J & W  tower 
structure is required by our  Rules to be registered.  The  agent 
searched the Commission's ASR registration records subsequent  to 
the inspection and found no registration for the J & W structure.  
Moreover, contrary to the assertions made by J & W that the tower 
is now registered,  a subsequent search  of the Commission's  ASR 
antenna  registration  records  by  Commission  personnel  as  of 
October  15,   2003,  revealed   no  record   of  antenna   tower 
registration of the J & W tower.  Accordingly, we find that J & W 
willfully violated Section 17.4 of  the Rules by not  registering 
its tower. 

     8.   Section 73.49 of the Rules requires that antenna towers 
having radio frequency  potential at  the base  must be  enclosed 
within effective locked fences.11  The tower in question has such 
potential.  During the inspection,  with Mr.  Henderson  present, 
the agent observed that a wooden  fence about three to three  and 
one-half feet  in height  surrounded  the tower  structure.   The 
agent also observed  that the fence  did not effectively  enclose 
the tower structure because the top portion of one section of the 
fence was  missing  and  entrance to  the  structure  was  easily 
available to anyone  simply by  stepping over  the lower  railing 
plank remaining in that portion of the fence.12  Contrary to J  & 
W's response, no documentation has  been provided to support J  & 
W's assertion that the fence was undergoing repair at the time of 
the  agent's  inspection.   Accordingly,  we  find  that  J  &  W 
willfully violated Section 73.49 of the Rules. 

     9.   J & W in its response to the NAL submits copies of  its 
1999, 2000 and  2001 federal  income tax  returns which  suggests 
that that payment  of the proposed  forfeiture amount of  $18,000 
would be a  financial hardship.   Upon review  of this  financial 
documentation, we find that reduction of the proposed  forfeiture 
amount to  $3,000.00  is  warranted on  the  basis  of  financial 

     10.  We have examined J &  W's response to the NAL  pursuant 
to the  statutory  factors above,  and  in conjunction  with  the 
Policy Statement as well.  As a result of our review, we conclude 
that J  & W  willfully violated  Sections 11.35(a),  17.4(a)  and 
73.49 of the Rules, and that a reduction of the forfeiture amount 
to $3,000 is warranted.  

     11.  Because J & W has  not provided evidence of  subsequent 
compliance from  the  date  of investigation,  we  are  concerned 
therefore that J & W  may continue to violate Sections  11.35(a), 
17.4(a) and  73.49 of the Rules  even after issuance of the  NAL.  
Accordingly, we will require, pursuant  to Section 308(b) of  the 
Act,13 that J & W report to the Enforcement Bureau within  thirty 
(30) days of the release of this Order whether it has established 
and installed an operating EAS system, repaired its tower fencing 
such  that  it  is  an  effective  locked  fence  enclosure,  and 
registered its  antenna structure  with the  Commission.  If  the 
report indicates that J & W has registered the antenna  structure 
with the  Commission, it  must specify  the antenna  registration 
number.   J &  W's report  must be submitted  in the  form of  an 
affidavit signed by an officer or director of the licensee.  If J 
& W fails to submit such a report  or we find that J & W has  not 
come into compliance  with our  rules, we  will consider  further 
appropriate enforcement action.

                    IV.  ORDERING CLAUSES

     12.  Accordingly, IT IS  ORDERED that,  pursuant to  Section 
503(b) of the Act,  and Sections 0.111,  0.311 and 1.80(f)(4)  of 
the Rules,14 J  & W  Promotions, Inc.  IS LIABLE  FOR A  MONETARY 
FORFEITURE in the  amount of three  thousand dollars  ($3,000.00) 
for failure to  have registered  the antenna  structure with  the 
Commission, failure to have  operational EAS equipment  installed 
and  failure to have an effective locked fence around the antenna 
structure, in willful and repeated violation of Sections 11.35(a) 
, 17.4(a) and 73.49  of the Rules.

     13.  IT IS ALSO ORDERED that, pursuant Section 308(b) of the 
Act, J & W Promotions, Inc.  must submit the report described  in 
Paragraph 11,  above, within  30 days  from the  release of  this 
Order, to Federal Communications Commission, Enforcement  Bureau, 
Spectrum Enforcement Division,  445 12th Street,  S.W., Room  7-A 
820, Washington, D.C.  20554.

     14.  Payment of the forfeiture shall  be made in the  manner 
provided for in Section 1.80 of  the Rules within 30 days of  the 
release of this Order.  If the forfeiture is not paid within  the 
period specified, the case may  be referred to the Department  of 
Justice for collection pursuant to  Section 504(a) of the  Act.15  
Payment may be  made by  mailing a check  or similar  instrument, 
payable to the order of the Federal Communications Commission, to 
the Federal Communications Commission,  P.O. Box 73482,  Chicago, 
Illinois 60673-7482.  The payment should reference NAL/Acct.  No. 
200232480016 and  FRN 0007-4715-50.   Requests for  full  payment 
under an installment plan should  be sent to: Chief, Revenue  and 
Receivables  Group,  445  12th  Street,  S.W.,  Washington,  D.C. 

     15.  IT IS FURTHER ORDERED that  copies of this Order  shall 
be sent by Certified Mail  Return Receipt Requested and by  First 
Class Mail to J & W Promotions, Inc., Wetumpka, Al2821 US Highway 
231 and to  its counsel, Norman  Hurst, Jr., Esq.,  462- A  Sayre 
Street, Montgomery, Alabama 36104.

                              FEDERAL COMMUNICATIONS COMMISSION

                              David H. Solomon
                              Chief, Enforcement Bureau


1 47 C.F.R.  11.35, 17.4(a) and 73.49.
2 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200232480016 (Enf).  Bur., Atlanta  Office, released  August  28, 
3 NAL at  3. 
4 47 U.S.C.  503(b).
5 47 C.F.R.  1.80.
6 47 U.S.C.  503(b)(2)(D).
7 47 C.F.R.  11.35(a).
8 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,' 
... 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).
9 47 C.F.R.  17.4(a).
10 47 C.F.R.  17.7(a).
11 47 C.F.R.  73.49.
12 The inspector  further observed that  Mr. Henderson found  the 
missing railing plank only after  a diligent search, because  the 
plank had been  concealed by grass.   Mr. Henderson attempted  to 
reinstall the plank but was unable to do so because the plank was 
so warped it could not stay in place within the fence.
13 47 U.S.C.  308(b)
14 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
15 47 U.S.C.  504(a).
16 See 47 C.F.R.  1.1914.