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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                )    File No. EB-03-AT-077
Cumulus Licensing Corp.          )
Owner of Antenna Structures      )    NAL/Acct. No. 200332480025
#1052722 and #1052724            )
near Savannah, Georgia           )    FRN:  0005-2603-77

                        FORFEITURE  ORDER

Adopted:  December 22, 2004             Released:  December 28, 

By the Assistant Chief, Enforcement Bureau:


     1.        In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of ten thousand dollars 
($10,000) to Cumulus Licensing Corporation (``Cumulus''), the 
owner of antenna structure registration (``ASR'') numbers 
1052722 and 1052724 in Savannah, Georgia, for willful and 
repeated violation of Section 17.50 of the Commission's Rules 
(``Rules'').1  The noted violation involves Cumulus's failure to 
clean and repaint its antenna structures to maintain good 

     2.        On May 27, 2003, the Commission's Atlanta, Georgia 
District Office (``Atlanta Office'') issued a Notice of Apparent 
Liability for Forfeiture (``NAL'') to Cumulus for a forfeiture 
in the amount of ten thousand dollars ($10,000).2  Cumulus filed 
a response to the NAL on August 1, 2003.


     3.        On August 22, 2001, an agent from the Atlanta 
Office inspected antenna structures associated with AM radio 
station WBMQ, Savannah, Georgia.  The agent found that the paint 
on the antenna structures was badly faded and peeling, greatly 
reducing the structures' visibility.   The Atlanta Office issued 
a Notice of Violation (``NOV'') to Cumulus on September 19, 
2001, noting inter alia the violation of Section 17.50 of the 
Rules.  Cumulus responded on October 15, 2001, that it was 
acquiring bids to repaint the structures and anticipated the 
repainting would be completed by December 31, 2001.

     4.        The Atlanta Office issued a Continuation of Notice 
of Violation (``CNOV'') on October 18, 2001, requesting a status 
report of the antenna structure repainting.  On January 9, 2002, 
Cumulus's counsel replied that Cumulus would make a 
determination no later than January 31, 2002, whether to repaint 
or replace the towers.  On February 4, 2002, Cumulus's counsel 
submitted an additional reply stating that Cumulus planned to 
replace the structures and that completion of construction would 
be June or July of 2002.  On July 31, 2002, Cumulus's counsel 
provided another written reply stating that after further 
evaluation, Cumulus had decided to relocate the operations for 
WBMQ to another existing structure in Savannah, Georgia, after 
which it would dismantle the current structures.

     5.        On March 18 and 19, 2003, an agent of the Atlanta 
Office again inspected ASR numbers 1052722 and 1052724.  The 
structures remained unpainted and the orange and white aviation 
bands were not distinguishable at a distance of one-half mile 
from the structures.  On May 27, 2003, the Atlanta Office issued 
the subject NAL for apparent willful and repeated violation of 
Section 17.50 of the Rules.  In its response, Cumulus does not 
contest that its two structures were in violation of Section 
17.50,3 but seeks a reduction in the forfeiture amount based on 
the fact that its existing towers cannot be repainted because 
the towers lead paint if scraped could be harmful to the 
surrounding environment, and because its efforts to relocate to 
a new location have been hampered by environmental-related 
concerns as well. 


     6.        The NAL assessed the proposed forfeiture amount in 
this case in accordance with Section 503(b) of the 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 Cumulus's response to the NAL, 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 such other matters as 
justice may require.6

     7.        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.  Cumulus 
concedes that its two antenna structures are in violation of 
Section 17.50, and the record reflects that Cumulus permitted 
the violation to continue from August 22, 2001, the date of the 
Atlanta Office's first inspection of the referenced WBMQ antenna 
structures until March 19, 2003, the date of the Atlanta 
Office's re-inspection of the antenna structures.7  We, 
therefore, find that Cumulus willfully8 and repeatedly9 violated 
Section 17.50 of the Rules.  

     8.        Cumulus states that their antenna structures have 
existed at their present location since the early 1950s.  The 
location is a salt water marsh, which has eroded the towers 
during the last 50 years.  Each tower's paint, apparently never 
replaced in its 50 years of existence, is lead-based and applied 
over a non-galvanized steel structure.  Cumulus purchased the 
station and antenna structures on March 26, 1998.  Cumulus 
states that it began to consider the condition of the towers and 
their paint only after the Atlanta Office agent notified them of 
the Section 17.50 violation.10  

     9.        After contact by the Atlanta Office agent, Cumulus 
says it began a series of efforts to paint the towers at their 
original location.  Cumulus was informed that the Army Corps of 
Engineers was concerned because the towers' lead paint, if 
scraped or sanded, would cause lead to fall into the wetlands, 
which it is responsible for protecting, resulting in potential 
environmental harm.  Moreover, all the painting contractors 
contacted by Cumulus stated that the towers were unsafe to 
climb.  One company nevertheless provided a cost estimate of 
$38,350 for the project.  Because overcoming these obstacles 
would have been prohibitively expensive, Cumulus then developed 
plans to build new towers in the wetlands marsh by applying to 
the Army Corps of Engineers, which has jurisdiction of the area.  
Cumulus discovered that it would be prohibitively expensive, if 
not impossible, to acquire approval to replace the towers 
because of environmental-related concerns regarding placement of 
guy anchors in the protected wetland area.  Cumulus subsequently 
applied to the Commission to relocate the Station WBMQ facility 
to an existing tower.  However, when it began construction of a 
ground station near the existing tower, Cumulus soon learned 
from the Army Corps of Engineers that its chosen location is a 
potential wetland.   

     10.       Cumulus persevered with its proposal to build the 
ground station and utilize the existing antenna structure at the 
site through the Army Corps of Engineers' permit process, and 
received final permission to begin building on July 3, 2003.  We 
note that the last communication from Cumulus prior to the NAL 
was dated July 31, 2002, and indicated that it intended to 
relocate the station to an existing tower but made no mention of 
building a new ground station on potentially protected 

     11.       Cumulus argues that these events show that it has 
``acted promptly at all times to do whatever it could to solve 
the problem resulting from the poor paint visibility.''12   
Cumulus states that if its contractors and consultants had 
informed it that the new site for relocation of the antenna 
structures was also a wetland and required Army Corps of 
Engineers approval, it ``would have begun the permitting process 

     12.       Cumulus states that it is acting as quickly as it 
can to complete the building and commence operations at its new 
site.  Once it is operating at the new site, it will close its 
existing site and take down the towers.  

     13.       Cumulus states that it believed that the 
Commission understood the towers could not be repainted because 
it kept the Atlanta Field Office apprised of its progress after 
the agent's inspection.  Cumulus argues that it had no notice 
that the time delay was unacceptable, and that correction of the 
problem has been its goal.  It argues that the forfeiture will 
not provide additional motivation to enable Cumulus to take down 
the tower.  Cumulus argues that the Commission is in effect 
telling it that it should have shut down the station and taken 
down the towers, but that this would have caused it to lose its 
license for being silent for more than a year.

     14.       We find that Cumulus should have known of, and 
acted on, the lack of paint on the towers prior to or 
immediately upon their purchase of the station and associated 
towers.  Even if Cumulus was unaware of its responsibility as 
the antenna structures' owner under the Rules regarding painting 
of the structure, it is well established that mistake or 
inadvertence resulting in a rule violation is considered a 
willful violation of the Commission's rules.14  Moreover, the 
Commission holds the owner of the antenna structure primarily 
responsible for awareness of and compliance with its Rules.15  
Accordingly, we conclude that it was Cumulus's responsibility to 
determine that the structures were inadequately painted and to 
act on that determination.16  

     15.       Cumulus's argument that it acted immediately to 
correct the violation after the violation was brought to its 
attention by the Atlanta Office agent does not support a 
reduction of the proposed forfeiture inasmuch as these actions 
were remedial and taken in response to being informed of the 
violation by the Atlanta Office.  The Commission has 
consistently found that ``corrective action taken to come into 
compliance with Commission rules or policy is expected, and does 
not nullify or mitigate any prior forfeitures or violations.''17  

     16.       We also disagree with Cumulus's argument that it 
has a good history of compliance.  A search of our records shows 
numerous violations by Cumulus in connection with operation and 
maintenance of its stations.  Accordingly, no reduction in the 
proposed forfeiture is warranted.

     17.       A search of the Commission's records does not 
indicate whether Cumulus has completed transferring its station 
operations or whether the former towers have been dismantled.   
Accordingly, we will require, pursuant to Section 308(b) of the 
Act,18 that Cumulus submit a report to the Enforcement Bureau 
within 30 days of the release date of this Order demonstrating 
that it is in compliance with our antenna registration Rules as 
required by Section 17.4(a).  Cumulus's report must be submitted 
in the form of an affidavit or declaration, under penalty of 
perjury, and signed by an officer or director of the licensee.  
Cumulus should note that its continued noncompliance could 
result in additional enforcement action.

     18.       We have examined Cumulus' 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 Cumulus willfully and repeatedly violated Section 
17.50 of the Rules, and we find no basis for rescinding or 
reducing the $10,000 forfeiture for this violation. 


     19.       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,19 Cumulus Licensing Corporation, owner 
of antenna structures #1052722 and #1052724 near Savannah, 
Georgia,  IS LIABLE FOR A MONETARY FORFEITURE in the amount of  
ten thousand dollars ($10,000) for its violation of Section 
17.50 of the Rules.  

     20.       IT IS FURTHER ORDERED that, pursuant to Section 
308(b) of the Act, Cumulus Licensing Corporation must submit the 
report described in paragraph seventeen (17) above no later than 
thirty (30) days from the release date of this Order to:  
Federal Communications Commission, Enforcement Bureau, Spectrum 
Enforcement Division, 445 12th Street, S.W., Washington, D.C. 
20554, Attention:  Susan Magnotti, Esquire.

     21.       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.20 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 Forfeiture Collection Section, 
Finance Branch, Federal Communications Commission, P.O. Box 
73482, Chicago, Illinois 60673-7482.  Payment by overnight mail 
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor 
Mailroom, Chicago, IL 60661.   Payment by wire transfer may be 
made to ABA Number 071000013, receiving bank Bank One, and 
account number 1165259.   Requests for full payment under an 
installment plan should be sent to: Chief, Revenue and 
Receivables Operations Group, 445 12th Street, S.W., Washington, 
D.C. 20554.21   

     22.       IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class and Certified Mail Return Receipt 
Requested to Cumulus Licensing Corporation, 3535 Piedmont Road, 
Building 14, 14th Floor, Atlanta, Georgia 30305, and to its 
counsel, Mark N. Lipp, Vinson & Elkins, LLP, The Willard Office 
Building, 1455 Pennsylvania Avenue NW, Washington, DC 20004-

                              FEDERAL COMMUNICATIONS COMMISSION

                              George R. Dillon
                              Assistant Chief, Enforcement Bureau

1 47 C.F.R.  17.50.  
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332480025 (Enf. Bur., Atlanta Office, released May 27, 2003).  
3  Cumulus' Response at page 1.
4  47 U.S.C.  503(b).
5  47 C.F.R.  1.80.
6  47 U.S.C.  503(b)(2)(D).
7 See William L. Needham and Lucille Needham, 18 FCC Rcd 5521, 
5522 (Enf. Bur. 2003) (Violation determined to be willful where 
tower owner was aware of the condition of the paint but chose not 
to repaint the tower).
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 ....''  Southern California Broadcasting Co., 6 FCC 
Rcd 4387 (1991).
9  As provided by 47 U.S.C.  312(f)(2), ``[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.'' 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).  Southern California Broadcasting Co., supra.
10  Cumulus Response  2.
11  Letter from John Griffith Johnson, Jr., of Paul, Hastings, 
Janofsky & Walker LLP, to Mr. Fred L. Broce, Atlanta District 
Director, Enforcement Bureau, dated July 31, 2002.
12  Cumulus Response at  9.
13  Id.
14 Southern California Broadcasting Company, supra (citing Vernon 
Broadcasting, Inc., 60 RR2d 1275, 1277 (1986); Fay Neel 
Eggleston, 19 FCC2d 829 (1969)).   See also PJB Communications of 
Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard Communications 
Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting Co., Inc., 96 FCC 
2d 1235, 1242 (1984).
15  See, e.g. Eure Family Limited Partnership, 17 FCC Rcd 21861, 
21863-64  6-7 (2002).
16  Moreover, we find unpersuasive Cumulus's argument that it 
only discovered the towers were standing in a protected wetland, 
and were so eroded as to prohibit repainting, years after it 
purchased the station, and then only after the Commission 
inspection.  The standard business practice of due diligence 
would have revealed this information prior to Cumulus's purchase 
of the stations.
17  AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002); 
Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994). 
18 47 U.S.C.  308(b).
19 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
20  47 U.S.C.  504(a).
21 See 47 C.F.R.  1.1914.