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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
4M of Richmond, Inc., Licensee of WLEE ) File No. EB-02-NF-
124
4M Communications, Inc., Owner of Antenna )
Structure #1231421 ) NAL/Acct. No. 200332640001
Richmond, Virginia )
) FRN3782182
FORFEITURE ORDER
Adopted: August 11, 2004 Released: August 13,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture of six thousand six hundred
dollars ($6,600) to 4M of Richmond, Inc. (``4M of
Richmond'') for willful violation of Section 73.49 of
the Commission's Rules (``Rules'') and for willful
and repeated violation of Section 73.1745(a) of the
Rules.1 Additionally, we issue a monetary forfeiture
of eight thousand dollars ($8,000) against 4M
Communications, Inc. (``4M Communications'') for
willful violation of Section 17.50 of the Rules, for
a total forfeiture amount of fourteen thousand six
hundred dollars ($14,600). The noted violations
involve 4M of Richmond's failure to enclose its tower
with an effective locked fence (§ 73.49) and
exceeding its nighttime power limit (§ 73.1745), and
4M Communications' failure to comply with the
prescribed antenna structure marking (§ 17.50).
2. On November 4, 2002, the Commission's Norfolk,
Virginia, Resident Agent Office (``Norfolk Office'')
issued a Notice of Apparent Liability for Forfeiture
(``NAL'') to 4M of Richmond and 4M Communications
(``the 4M companies'') for a forfeiture in the amount
of twenty-one thousand dollars ($21,000).2 The 4M
companies jointly responded to the NAL on December 3,
2002.
II. BACKGROUND
3. 4M of Richmond is the licensee of AM station WLEE,
Richmond, Virginia. WLEE is licensed to transmit
with a daytime power of 1,000 watts and a nighttime
power of 13 watts. 4M Communications owns that
station's antenna structure (#1231421), which is
located at 2516 Inman Avenue, Richmond, Virginia.
The Commission's Antenna Structure Registration
(``ASR'') database lists the structure's height as
75.6 meters above ground level and prescribes
lighting and painting requirements. The same
principals control both 4M of Richmond and 4M
Communications.
4. On August 19, 2002, an agent from the Norfolk
Office inspected WLEE's transmitter site. At about
1:30 p.m., the agent observed that the fencing around
the base of WLEE's tower had no lock. He also
observed that the antenna structure's paint was so
chipped and faded that the contrasting color bands
were difficult to distinguish from less than one-
quarter of a mile away, resulting in poor visibility
of the antenna structure.
5. After sunset on August 19, 2002, the agent
observed WLEE's antenna base current meter, which
measured the current supplied to WLEE's antenna
tower, and calculated that WLEE's power exceeded the
station's authorized nighttime power of 13 watts. On
August 20, 2002, the agent inspected a portion of
WLEE's logs for August 17, 18 and 19, 2002. Those
logs noted that the use of power between sunset and
sunrise on August 17, 18 and 19, 2002, exceeded
WLEE's authorized nighttime power of 13 watts on each
of those evenings with, respectively, readings of 37
watts, 945 watts and 37 watts.
6. Based on the agent's observations, on November 4,
2002, the Norfolk Office issued a NAL to 4M of
Richmond and 4M Communications for a total forfeiture
in the amount of $21,000 for willful violation of
Sections 73.49 ($7,000) and 17.50 ($10,000) of the
Rules and for willful and repeated violation of
Section 73.1745(a) ($4,000) of the Rules. In the
joint response, filed December 3, 2002, the 4M
companies seek reduction or cancellation of the
proposed forfeiture. As to Section 73.49, the 4M
companies admit that the fence around the base of
WLEE's tower was not locked but argue that this was a
minor violation because it existed for only four days
before it was corrected. With regard to Section
17.50, the 4M companies argue that its observations
and those of the contractor who repainted WLEE's
tower on October 13, 2002, indicate that the tower
did not need repainting and that the Commission has
not provided photographic evidence of the need for
repainting WLEE's tower.
7. With respect to Section 73.1745(a), the 4M
companies assert that WLEE's antenna base current
meter had been removed for repairs and recalibration
and was reinstalled just before the FCC agent read
it. The 4M companies argue that if there was a
violation of Section 73.1745(a), it was minor and
unintentional, that there were no field strength
measurements taken, that there were no complaints of
interference from WLEE's operation and that the
determination that WLEE's power exceeded the
authorized level by 26 watts was ``within the margin
of error.'' Additionally, the 4M companies argue
that the power measurements reported in WLEE's
station logs are not reliable because ``with a
transmitter designed to operate at 1,000 watts, it is
technically difficult to obtain accurate readings at
low output levels in the range of 13 watts.''
8. The 4M companies also argue that they have a
history of overall compliance and that, by
cooperating with the FCC agent, they acted in good
faith. The 4M companies argue further that any
violations were ``minor, inadvertent, unintentional
and promptly corrected.'' In addition, the 4M
companies assert that they are ``a small, independent
broadcaster'' and that the Commission ``should not
discourage companies like 4M whose successful efforts
to save troubled AM stations and bring new
programming choices to listeners have served the
public interest.''
III. DISCUSSION
9. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),3
Section 1.80 of the Rules,4 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'').
Section 503(b) of the Act requires that the
Commission, in examining the 4M companies' response,
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.5
10. Section 73.49 of the Rules provides that antenna
structures that have radio frequency potential
(voltage) at the base of the tower must be enclosed
within an effective locked fence to protect the
public. The 4M companies admit that the gate to the
fence around the antenna structure was not locked as
a result of the intentional act of a 4M agent to cut
the lock, but argue that this violation was minor
because it lasted for only four days. We do not
agree that its duration of ``only'' four days makes
the fencing violation ``minor'' when the public's
safety and possibility of contact with the radiating
antenna structure is involved.6 We find that 4M of
Richmond willfully7 violated Section 73.49.
11. Section 17.50 of the Rules provides that antenna
structures requiring painting shall be cleaned or
repainted as often as necessary to maintain good
visibility. To determine compliance with Section
17.50, we rely primarily on the investigating agent's
observations and judgment rather than on photographic
evidence. The 4M companies contend that their
observations and those of the contractor who
repainted WLEE's tower indicate that prior to the
contractor's painting of the tower, the tower did not
need repainting. The FCC agent's observations and
judgment at the time of his inspection indicate that
the tower's paint was so chipped and faded that the
contrasting color bands were difficult to distinguish
from less than one-quarter of a mile away. We
find, based on the agent's observations, that 4M
Communications violated Section 17.50 of the Rules,8
and that the one sentence statement to the contrary
by 4M Communications' contractor does not override
this conclusion. Further, the condition of the
antenna structure's paint was plainly visible. After
reviewing the facts of this case, we find that 4M
Communications' violation of Section 17.50 was
willful.
12. Section 73.1745(a) of the Rules prohibits
broadcast licensees from operating with power other
than that specified by their licenses. WLEE is
licensed to operate with a power of 1,000 watts
during the day and a power of 13 watts between sunset
and sunrise. After sunset on August 19, 2002, the
FCC agent -- using a current meter which WLEE's
contract engineer had just reinstalled -- measured
the current supplied to WLEE's antenna and calculated
that WLEE was operating with a power of 39 watts.
The 4M companies make several arguments. First, 4M
Companies claim that the FCC agent measured the
current to WLEE's antenna ``without allowing [WLEE's
contract engineer] to readjust the transmitter to
reflect the recalibration [of the current meter].''
We agree that the agent measured the current meter
before the contract engineer could readjust the
transmitter power; this was necessary in order to
accurately determine the station's power prior to 4M
of Richmond's readjusting the transmitter power. The
point here is not that 4M of Richmond could have
adjusted the power to its licensed parameters, if
given the chance, but rather that 4M of Richmond was
operating in excess of those parameters. Next, the
4M companies claim that the power violation was
``minor'' and ``within the margin of error'' because
WLEE's power was only 26 watts above the authorized
level, and that the power measurements reported in
WLEE's station logs were not reliable because ``with
a transmitter designed to operate at 1,000 watts, it
is technically difficult to obtain accurate readings
at low output levels in the range of 13 watts.''
However, when the FCC agent inspected the logs, he
found that WLEE was in operation with as much as 945
watts after sunset on August 18, 2002, and as much as
940 watts before sunrise on August 19, 2002. Due to
WLEE's operation at near daytime power, levels
significantly above the FCC authorized nighttime
level of 13 watts on the evening of August 18 and the
morning of August 19, as well as the operation of
WLEE at 39 watts on the evening of August 19 (300% of
the authorized power), this is not a minor
violation.9 Further, the claim that the power
measurements reported in WLEE's station logs are not
reliable at readings near 37 watts because its full
scale range is 1000 watts is contradicted by readings
of 945 and 940 watts obtained, respectively, on the
evening of August 18, 2002, and the morning of August
19, 2002.10 Further, WLEE was responsible for
assuring that the power meter readings were
accurate.11 The 4M companies' third contention, that
there were no field strength measurements, is
incorrect; the FCC agent did take field strength
measurements which confirm that WLEE was operating
after sunset on August 19, 2002, with power exceeding
13 watts. Finally, because 4M of Richmond's
operation exceeded the authorized power, the
violation is not mitigated by any lack of complaints
about the effects of 4M of Richmond's overpower
operation.12 We find that 4M of Richmond willfully
and repeatedly13 violated Section 73.1745(a) of the
Rules,14 with an excess of power at night on August
18, and 19, 2002.
13. We do not agree with 4M companies' assertion that
any violations were ``inadvertent'' or
``unintentional.'' As indicated above, an agent of
the 4M companies intentionally caused the violation
of Section 73.49 of the Rules by cutting the lock on
the gate to the enclosure around WLEE's antenna
structure. The 4M companies' lack of intent to
violate the rules does not excuse or mitigate its
violations of the Rules. Section 503(b)(1)(B) of the
Act provides that any person who ``willfully or
repeatedly'' fails to comply with any provision of
the Act or any rule, regulation or order issued by
the Commission under the Act ``shall be liable to the
United States for a forfeiture penalty.''15 In this
context, ``willful'' simply means the conscious and
deliberate commission or omission of an act,
irrespective of any intent to violate statutory or
regulatory requirements.16 Thus, we conclude that no
reduction or cancellation of the proposed forfeiture
is warranted on the basis of 4M companies' lack of
intent or inadvertence.
14. No mitigation is warranted on the basis that the
4M companies are ``a small, independent
broadcaster.''17 The Commission takes the size of a
business into account by considering its ability to
pay a monetary forfeiture.18 As explicitly stated in
the NAL, we 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. The 4M companies have not provided
any financial documentation to support a claim of
inability to pay; therefore, we have no basis to
reduce the forfeiture on grounds of inability to pay.
19
15. Because we expect cooperation during an FCC
investigation, no mitigation is warranted on the
basis that the 4M companies acted in good faith by
cooperating with the FCC agent or by 4M
Communications having the tower painted after the FCC
agent so advised 4M Communications. We do, however,
find that 4M of Richmond acted in good faith by
correcting the fencing violation before being
notified of that violation and are reducing that
portion of the proposed forfeiture for 4M of
Richmond's violation of Section 73.49 of the Rules by
$1,400. We also find that 4M of Richmond acted in
good faith when it was attempting to install the
repaired and recalibrated antenna base current meter
during the FCC agent's inspection, and are reducing
that portion of the proposed forfeiture for 4M of
Richmond's violation of Section 73.1745(a) of the
Rules by $800.
16. While the 4M companies' ``successful efforts to
save troubled AM stations'' are commendable, we find
that no mitigation is warranted on that basis. We
do, however, find that the 4M companies have a
history of overall compliance and, accordingly, we
find that the forfeiture proposed against 4M of
Richmond should be further reduced by $2,200 and that
the forfeiture proposed against 4M Communications
should be reduced by $2,000.
17. We have examined the 4M companies' response to the
NAL pursuant to the statutory factors above, and in
conjunction with the Policy Statement as well.20 As
a result of our review, we conclude that 4M of
Richmond willfully violated Section 73.49 of the
Rules and willfully and repeatedly violated
violations of Section 73.1745(a) of the Rules; and
that 4M Communications willfully violated Section
17.50 of the Rules. We find that the proposed
forfeitures against 4M of Richmond and 4M
Communications should be reduced to the amounts
indicated above.
IV. ORDERING CLAUSES
18. 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,21 4M of Richmond IS
LIABLE FOR A MONETARY FORFEITURE in the amount of six
thousand six hundred dollars ($6,600) for willful
violation of Section 73.49 of the Rules and for
willful and repeated violations of Section 73.1745(a)
of the Rules.
19. IT FURTHER IS ORDERED that 4M Communications IS
LIABLE FOR A MONETARY FORFEITURE in the amount of
eight thousand dollars ($8,000) for willful violation
of Section 17.50 of the Rules. The total amount for
these forfeitures is fourteen thousand six hundred
dollars ($14,600).
20. 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.22 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. 200332640001 and FRN 3782182. 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. 20554.23
21. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail
Return Receipt Requested to 4M of Richmond, Inc., and
4M Communications, Inc., 308 Broad Street, Richmond,
Virginia 23220.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 73.49, 73.1745(a) and 17.50.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332640001 (Enf. Bur., Norfolk Office, released November 4,
2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 See, e.g., FBS Wireless Corporation, 18 FCC Rcd 21018 (Enf.
Bur. 2003); Truth Broadcasting Corporation, 17 FCC Rcd 24376
(Enf. Bur. 2002).
7 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).
8 See Access.1 Communications Corp.-NY, 18 FCC Rcd 22289, 22291
at fn 8 (Enf. Bur. 2003). The 4M companies argue that there is
an insufficient evidentiary record to find a violation of Section
17.50 of the Rules, citing Beacon Broadcasting, Inc., 17 FCC Rcd
22839 (Enf. Bur. 2002). We can find nothing in that case which
supports the view that there is an insufficient evidentiary
record to establish a violation of Section 17.50. In Beacon, the
tower owner did not challenge the FCC's evidentiary findings but
sought cancellation or reduction of a proposed $15,000 forfeiture
for several violations, including Section 17.50, on the basis of
its recent acquisition of the tower, its remedial efforts and its
inability to pay the forfeiture; we determined that neither
cancellation nor reduction of the proposed forfeiture was
warranted. If the 4M companies are implying that the evidence
for a violation of Section 17.50 in this proceeding is deficient
because it differs from the evidence supporting the violation of
that section in Beacon, we point out that each case should be
examined on its own merits. See James R. Weaks, 48 FCC 2d 273
(ALJ 1974).
9 AM stations must not operate with over 105% of authorized
power no matter the mode of operation. See 47 C.F.R. § 73.1560.
10 This argument does apply to the readings (37 watts) recorded
for the evenings of August 17 and 19, 2002. However, we need not
address it for those dates because a Commission measurement (39
watts) establishes overpower operation on the evening of August
19, 2002, and it is unnecessary to establish an overpower
violation on August 17, 2002.
11 AM stations are allowed to operate without a current meter for
up to 60 days provided the station can determine operating power.
See 47 C.F.R. §§ 73.51 and 73.58.
12 In PJB Communications of Virginia, Inc. (7 FCC Rcd 2088, 2088
(1992)), the Commission did not downwardly adjust a forfeiture
based on wireless carrier's claims that its rule violation
[failure to file required notifications to maintain authorized
operation of one-way paging facilities] did not adversely affect
the public. The Commission explained that licensees have a duty
to operate in accordance with Commission rules, and cannot
absolve themselves of the failure to do by simply claiming that
there was no harm done to the public. The Commission maintained
that there is an independent public interest in licensees
complying with the rules. Id.
13 As 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).
14 The 4M companies contend that the Enforcement Bureau has not
met its burden of proving that 4M of Richmond willfully and
repeatedly violated Section 73.1745(a) of the Rules, citing
Tarrant Radio Broadcasting, Inc., 17 FCC Rcd 16761 (Enf. Bur.
2002) and Sycamore Valley Broadcasting, Inc., 17 FCC Rcd 15843
(Enf. Bur. 2002). While Tarrant and Sycamore involve facts
similar to those of the instant case, we can find nothing in
Tarrant and Sycamore which supports the view that the Enforcement
Bureau has not met its burden of proof in this case. In Tarrant,
we reduced the proposed $4,000 forfeiture by $1,000 due to a
history of overall compliance, and in Sycamore, we determined
there were no factors justifying a reduction of the proposed
forfeiture amount.
1547 U.S.C. § 503(b)(1)(B).
16Supra, note 7.
17 See Forfeiture Policy Statement, at 17109 ¶¶ 51-52 (finding
that the Commission's forfeiture policies and precedent are
consistent with the requirements of Section 223 of the Small
Business Regulatory Enforcement Fairness Act of 1996, Pub. L.
104-121, 110 Stat. 847 (1996), because the agency considers,
among other factors, inability to pay, good faith efforts,
participation in alternative compliance programs, in assessing
forfeitures).
18 See, e.g., Jerry Szoka, 14 FCC Rcd 20147,20150 ¶¶ 9-10
(1999); Bay Broadcasting Corp., 15 FCC Rcd 13613, 13615-16 ¶¶ 8-9
(Enf. Bur. 2000) Merichem Sasol LLC, 15 FCC Rcd 8450, 18452 ¶ 4
(WTB 1999) .
19 The Commission has determined that, in general, gross revenues
are the best indicator of the ability to pay a forfeiture. See
PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
(1992).
20 The 4M companies cite Radio One Licenses, Inc., as authority
for reducing the proposed forfeiture on the basis of minor
violation, good faith and history of overall compliance. See
Radio One Licenses, Inc., 16 FCC Rcd 15326 (Enf. Bur. 2001);
recon. den., 17 FCC Rcd 1724 (Enf. Bur. 2002); recon. granted in
part and denied in part, 17 FCC Rcd 20408 (Enf. Bur. 2002);
application for review granted in part and denied in part, 18 FCC
Rcd 15964 (2003); recon. den., 18 FCC Rcd 25481 (2003). In the
instant case, we considered reducing the proposed forfeiture in
paragraphs 13-17 above and found that a reduction is warranted on
the basis of a history of overall compliance and good faith. We
have examined the Radio One orders and find nothing which
supports a different result. Radio One involved a monetary
forfeiture originally imposed for willful violation of the
following Rules: 11.35(a) (failure to have operational Emergency
Alert System (``EAS'') equipment); 73.1125(e) (failure to
establish a local or toll-free telephone number in the community
of license); 73.1350(c)(1) (failure to establish monitoring
procedures to determine compliance with Section 73.1560 regarding
operating power); 73.1800(a) (failure to maintain a station log);
and 73.3526(a)(2) (failure to maintain a public inspection file).
In a series of rulings, the Enforcement Bureau and the Commission
reduced the originally proposed monetary forfeiture of $22,000 to
$8,000 on the basis that Radio One did maintain a public
inspection file and had a history of overall compliance.
21 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
22 47 U.S.C. § 504(a).
23 See 47 C.F.R. § 1.1914.