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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of           )                               
     WSMN Broadcasting, LLC     )   File Number EB-04-BS-003    
     Licensee of Station WSMN   )   NAL/Acct. NO. 200532260003  
     Nashua, New Hampshire      )   FRN 0011401320              
     Facility ID # 102          )                               

                                FORFEITURE ORDER

   Adopted: October 3, 2006 Released: October 6, 2006

   By the Regional Director, Northeast Region, Enforcement Bureau:


    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of seven thousand dollars ($7,000) to WSMN Broadcasting,
       LLC, ("WSMN"), former licensee of AM station WSMN, in Nashua, New
       Hampshire, for willfully and repeatedly violating Section 73.49  of
       the Commission's Rules ("Rules") by failing to enclose one of WSMN's
       three antenna structures within an effective locked fence or other


    2. On May 12, 2004, an agent from the FCC Enforcement Bureau's Boston
       Office inspected the three antenna structures used by AM station WSMN,
       Nashua, New Hampshire. The agent observed that the fence around the
       west tower had a large gap between two pickets and the fence on one
       side of the gap was falling down. The gap allowed access to the tower,
       which was series fed and had radio frequency potential at its base.
       The agent also observed that there was extensive vegetative growth
       around the base of the tower, including in the gap of the fence. The
       agent also found that the tower's tuning unit had fallen and was
       upside down on the ground. The antenna structures were not protected
       by a property fence.

    3. On September 28, 2005, the Boston Office issued a Notice of Apparent
       Liability for Forfeiture to WSMN for apparent willful and repeated
       violation of Section 73.49 of the Rules. In its response to the NAL,
       WSMN claims that the proposed forfeiture should be rescinded because
       WSMN is not the owner of the antenna structures at issue.

   III. Discussion

    4. The forfeiture amount proposed in this case was assessed in accordance
       with Section 503(b) of the Communications Act of 1934, as amended
       ("Act"), Section 1.80 of the Rules, and the Commission's Forfeiture
       Policy Statement and Amendment of Section 1.80 of the Rules to
       Incorporate the Forfeiture Guidelines. In assessing forfeitures,
       Section 503(b)(2)(D) of the Act requires that we 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

    5. We decline to grant WSMN's request to cancel the proposed forfeiture.
       WSMN claims that it is not responsible for complying with the AM
       fencing requirements because it does not own the antenna structures.
       The fencing requirements in Section 73.49 of the Rules, however, apply
       to AM licensees, not antenna structure owners. Section 73.49 is
       contained within Part 73 of the Commission's rules, which applies to
       broadcast services and its licensees. More specifically, Section 73.49
       of the Rules is set out in Subpart A of Part 73, the scope of which is
       described as containing "those rules which apply exclusively to the AM
       broadcast service" The cases WSMN cites in its response to the NAL
       support this conclusion. In each of those cases, the entity held
       responsible for violating Section 73.49 of the Rules was the licensee,
       albeit in each instance the licensee also was the antenna structure
       owner. The responsibility for complying with Section 73.49 of the
       Rules does not shift to the antenna structure owner in cases where the
       licensee and the antenna structure owner are different entities; that
       is, the licensee always remains the party responsible for complying
       with the AM fencing requirements.

    6. We have examined the 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 WSMN willfully
       and repeatedly violated Section 73.49 of the Rules. Considering the
       entire record and the factors listed above, we find that neither
       reduction nor cancellation of the proposed $7,000 forfeiture is


    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 and
       1.80(f)(4) of the Rules, WSMN Broadcasting, LLC IS LIABLE FOR A
       MONETARY FORFEITURE in the amount of seven thousand dollars ($7,000)
       for willful and repeated violation of Section 73.49 of the Rules.

    8. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) days of the release of
       this Order. If the forfeiture is not paid within the period specified,
       that case may be referred to the Department of Justice for collection
       pursuant to Section 504(a) of the Act. 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 Federal Communications Commission, P.O. Box
       358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may be
       sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
       Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
       Number 043000261, receiving bank Mellon Bank, and account number
       911-6106. Requests for full payment under an installment plan should
       be sent to: Associate Managing Director, Financial Operations, 445
       12th Street, S.W., Room 1A625, Washington, D.C. 20554.

    9. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
       sent by Certified Mail, Return Receipt Requested, and regular mail, to
       WSMN Broadcasting, LLC at its address of record and to counsel for
       WSMN Broadcasting, LLC at his address of record.


   Russell Monie, Jr.

   Regional Director, Northeast Region

   Enforcement Bureau

   Commission records show that the application for assignment of station
   WSMN was granted on August 19, 2005, and the assignment of the license was
   consummated on November 10, 2005. WSMN Broadcasting, LLC was the licensee
   at the time the violations at issue occurred in 2004.

   47 C.F.R. S 73.49.

   WSMN Broadcasting, LLC, Notice of Apparent Liability for Forfeiture,
   NAL/Acct. No. 200532260003 (Enf. Bur., Boston Office, September 28, 2005)

   WSMN also submitted a supplemental response in which it reports that the
   antenna structures were dismantled.

   47 U.S.C. S 503(b).

   47 C.F.R. S 1.80.

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

   47 U.S.C. S 503(b)(2)(D).

   47 C.F.R. S 73.1. In contrast, Part 17 sets out the requirements for
   antenna structure owners. See 47 C.F.R. SS 17.1 et seq. We note that, even
   with regard to the requirements that primarily apply to antenna structure
   owners, licensees still have a secondary responsibility. Section 17.6(a)
   provides that, if the licensee "has reason to question whether the antenna
   structure owner is carrying out its responsibility under this part, the
   licensee or permittee must take immediate steps to ensure that the antenna
   structure is brought into compliance and remains in compliance." 47 C.F.R.
   S 17.6(a).

   See M.B. Communications, Inc., Forfeiture Order, 20 FCC Rcd 9356 (2005),
   petition for recon. denied, Memorandum Opinion and Order, 2006 WL 2336317
   (2006)(licensee of WYLF(AM), Penn Yan, NY); Small Town Radio, Inc.,
   Memorandum Opinion and Order, 19 FCC Rcd 7187 (2004)(licensee of WDGR(AM),
   Dahlonega, GA); Westshore Broadcasting, Inc., Forfeiture Order, 19 FCC Rcd
   6169 (2004)(licensee of WOCA(AM), Ocala, FA); FBS Wireless Corporation, 19
   FCC Rcd 19477 (2004)(licensee of WFBS(AM), Berwick, PA). Although we
   recognize that these decisions use language suggesting that the tower
   owner is responsible for complying with Section 73.49 of the Rules, such
   language is not dispositive and does not supercede the relevant provisions
   in our rules.

   Indeed, compliance with the AM fencing requirements is significant enough
   to have been one of the issues designated for consideration in a case to
   determine whether an individual was qualified to be an AM station
   licensee. In Family Broadcasting Inc., the Commission remanded to the
   presiding judge, inter alia, the issue of whether the transferee "will
   have sufficient financing and managerial capacity to ensure enclosure
   within an effective locked fence of WSTX(AM)'s antenna as required by
   Section 73.49." Family Broadcasting, Inc., Order to Show Cause Why the
   Licenses for Stations WSTX(AM) and WSTX-FM, Christiansted, U.S. Virgin
   Islands, Should Not Be Revoked, 20 FCC Rcd 9463 para.  7(g) (2005)
   (subsequent history omitted).

   47 U.S.C. S 503(b).

   47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).

   47 U. S. C. S 504(a).

   See 47 C.F.R. S 1.1914.

   (...continued from previous page)


   Federal Communications Commission DA 06-1978


   Federal Communications Commission DA 06-1978