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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File No. EB-03-TP-231 ) File No. EB-03-TP-231
Metropolitan Radio Group of ) )
Florida, Inc. ) ) FRN 0007006884
) ) NAL/Acct. No. 200332700030
NAL/Acct. No. 200332700030 )
Licensee of AM Radio Station ) FRN 0007006884
St. Petersburg, Florida )
Springfield, Missouri )
Adopted: June 28, 2004
Released: June 30, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of seven thousand dollars
($7,000) to Metropolitan Radio Group of Florida, Inc.
(``Metro Radio''), licensee of Station WRXB(AM), St.
Petersburg, Florida, for willful and repeated violation of
Section 73.49 of the Commission's Rules (``Rules'').1 The
noted violation involves Metro Radio's failure to maintain
effective locked fences around the bases of its three AM
antenna towers or a protective property fence around the
three antenna towers.
2. On May 15, 2003, two agents from the Commission's
Tampa Field Office (``Tampa Office'') inspected
Station WRXB(AM) in St. Petersburg, Florida. The
agents observed that each of the station's three
antenna towers had radio frequency potential at
their bases. They also found that none of the
station's three AM antenna towers were enclosed
within an effective locked fence. A perimeter
fence surrounded the property containing the three
towers; however, the main entrance gate to the
property was open and unlocked allowing
unrestricted access to the bases of all three
towers. Station personnel stated that the
entrance gate to the property remained opened and
unlocked for a month prior to the inspection.
3. On August 25, 2003, the Tampa Office issued a
Notice of Apparent Liability for Forfeiture
(``NAL'') to Metro Radio in the amount of seven
thousand dollars ($7,000).2 Metro Radio filed a
response to the NAL on September 24, 2003, seeking
a reduction or cancellation of the proposed
forfeiture. Although it acknowledged that the
gate was unlocked when the agents visited the
station, Metro Radio disputes that the gate was
unlocked for a period of over a month. Metro
Radio asserts that the local management adopted
this policy of unlocking the gate during normal
business hours ``for a brief period of time.''3
It further states that it discontinued this
practice after the agents' inspection. Metro
Radio claims that the station maintained
additional fencing within the perimeter fencing
``that further restricts individuals who enter the
property to access the studio building from
approaching the transmission towers''4 and that
station personnel monitored the pathway from the
gate to the building. Metro Radio also notes that
it hired a firm to erect interior fencing around
the base of each tower. Finally, it argues the
forfeiture should be reduced in light of its
overall history of compliance with the Rules.
4. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),5
Section 1.80 of the Rules,6 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) (``Forfeiture
Policy Statement''). In examining Metro Radio'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
5. Section 73.49 of the Rules requires AM antenna
towers having radio frequency potential at the
base (series fed, folded unipole, and insulated
base antennas) to be enclosed within an effective
locked fence or other enclosure.8 Alternatively,
individual tower fences need not be installed if
multiple towers are contained within a protective
property fence.9 Metro Radio acknowledges that
the individual towers were not enclosed by
separate effective locked fences. Although Metro
Radio admitted that the main gate of the perimeter
fence was open for an undisclosed period of time,
Metro Radio asserts that its additional interior
fencing combined with its monitoring of the gate
were sufficient to comply with the Rules or
justify reduction of the forfeiture. The agents'
observations and statements of Metro Radio station
employees made to the agents, however, are
inconsistent with Metro Radio's assertions. On
May 15, 2003, the agents were able to enter
unimpeded through the main gate. They observed
that the three antenna towers were located along
the driveway in between the main gate and the
studio. They did not observe any additional
interior fencing or monitoring of the gate by
station personnel. On May 15, 2003, station
personnel stated the main gate was open during
regular business hours for at least a month.
Because the perimeter fence allowed unimpeded
access to the towers by the public for at least
several days, we conclude it was not a protective
property fence during those days. Therefore, we
find that Metro Radio's violation of Section 73.49
of the Rules was willful10 and repeated.11
6. Metro Radio asserts that the forfeiture should be
reduced or cancelled because it took prompt action
to discontinue the open gate policy and place an
order for fencing around the three antennas.
Metro Radio's remedial actions, however, to
correct promptly violations after they have been
identified by an agent is expected and does not
warrant a reduction in the forfeiture amount.12
7. Finally, Metro Radio claims that the forfeiture
should be reduced or cancelled in light of its
overall history of compliance with the Rules. We
disagree. We recently issued a Forfeiture Order
in the amount of twelve thousand dollars ($12,000)
against the Metropolitan Radio Group, Inc. for
willful violation of Sections 73.1125(a) and
73.3526(b) of the Rules.13 Metropolitan Radio
Group, Inc. owns 100 percent of the assets of
Metro Radio.14 Because Metro Radio's parent
company has previously violated the rules, we find
that a reduction of the assessed forfeiture amount
is not warranted.
8. We have examined Metro Radio's response to the NAL
pursuant to the statutory factors above, and in
conjunction with the Forfeiture Policy Statement.
As a result of our review, we conclude that Metro
Radio willfully and repeatedly violated Section
73.49 of the Rules and find no basis for
cancellation or reduction of the forfeiture
proposed for this violation.
9. Although Metro Radio asserted in its response to
the NAL that it had discontinued its open gate
policy after the May 15, 2003 inspection,
installed additional interior fencing within the
perimeter fence that restricted people from
approaching the towers, and placed orders to build
base fences around the three towers, we have
reason to question whether Metro Radio has come
into compliance with Section 73.49 of the Rules.
Following receipt of an interference complaint
against Station WRXB(AM), two agents from the
Tampa Office again inspected the station on April
29, 2004. The agents observed that the main gate
of the perimeter fence remained open and
unattended and that there was no chain or lock
hanging from the fence. The agents also found
that there were no base fences around the three
towers and no additional interior fencing. In
order to assist the Commission in determining
what, if any, additional enforcement action may be
appropriate, pursuant to Section 308(b) of the
Act,15 we require Metro Radio to report to the
Enforcement Bureau no more than thirty days after
the release of this Forfeiture Order whether it
has come into compliance with Section 73.49 of the
Rules by locking the perimeter fence surrounding
Station WRXB(AM) at all times or erecting
individual base fences around each of its three AM
towers. Metro Radio's report must be submitted in
the form of an affidavit or declaration, under
penalty of perjury, signed by an officer or
director of the licensee. Metro Radio should note
that continued noncompliance could result in
additional enforcement actions.
IV. ORDERING CLAUSES
10. 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,16 Metropolitan
Radio Group of Florida, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of seven
thousand dollars ($7,000) for willfully and
repeatedly violating Section 73.49 of the Rules.
11. 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.17 Payment shall 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
note NAL/Acct. No. 200332700030, and FRN
0007006884. 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. 20554.18
12. IT IS FURTHER ORDERED that, pursuant to Section
308(b) of the Act,19 Metropolitan Radio Group of
Florida, Inc. must submit the report described in
paragraph 9 above, no more than thirty (30) days
following the release of this Forfeiture Order, to
the Federal Communications Commission, Enforcement
Bureau, South Central Region, 520 NE Colbern Road,
Lee's Summit, MO 64086, Attention: Regional
13. IT IS FURTHER ORDERED that, a copy of this Order
shall be sent by Certified Mail Return Receipt
Requested and by First Class Mail to Metropolitan
Radio Group of Florida, Inc.'s counsel, Anthony T.
Lepore, Esq., Post Office Box 823662, South
Florida, FL 33082-3662.
David H. Solomon
Chief, Enforcement Bureau
147 C.F.R. § 73.49.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332700030 (Enf. Bur., Tampa Office, released August 25,
3Metro Radio Response at 2.
4Id. at 1.
547 U.S.C. § 503(b).
647 C.F.R. § 1.80.
747 U.S.C. § 503(b)(2)(D).
847 C.F.R. § 73.49.
10Section 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
11As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one
day. The Conference Report for Section 312(f)(2)
indicates that Congress intended to apply this definition
to Section 503 of the Act as well as Section 312. See H.R.
Rep. 97th Cong. 2d Sess. 51 (1982). See Southern
California Broadcasting Company, 6 FCC Rcd 4387, 4388
(1991) and Western Wireless Corporation, 18 FCC Rcd 10319
at fn. 56 (2003).
12See AT&T Wireless Services, Inc., 17 FCC Rcd 21861,
21864-75 (2002); Sonderling Broadcasting Corp., 69 FCC 2d
289, 291 (1978); Odino Joseph, 18 FCC Rcd 16522, 16524,
para. 8 (Enf. Bur. 2003); South Central Communications
Corp., 18 FCC Rcd 700, 702-03, para. 9 (Enf. Bur. 2003);
Northeast Utilities, 17 FCC Rcd 4115, 4117, para. 13 (Enf.
13Forfeiture Order, NAL/Acct. No. 20033262003, DA 04-1306
(rel. May 12, 2004).
14See Ownership Report for Commercial Broadcast Stations,
File No. BOA-20030917ABS, submitted by Metro Radio on
September 17, 2003.
1547 U.S.C. § 308(b).
1647 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1747 U.S.C. § 504(a).
18See 47 C.F.R. § 1.1914.
1947 U.S.C. § 308(b).