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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                )                              
                                                               
     In the Matter of           )                              
                                                               
     A Radio Company, Inc.      )                              
                                     File Number EB-05-SJ-025  
     Licensee of Station WEGA   )                              
                                    NAL/Acct. No.200632680001  
     P.O. Box 1488              )                              
                                               FRN 0010555654  
     Vega Baja, PR 00694        )                              
                                                               
     Facility ID # 69853        )                              
                                                               
                                )                              


                                FORFEITURE ORDER

   Adopted: November 1, 2006 Released: November 3, 2006

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of fifteen thousand dollars ($15,000) to A Radio Company,
       Inc. ("A Radio"), licensee of AM radio station WEGA in Vega Baja,
       Puerto Rico, for willful violation of Sections 73.49 and 73.3526 of
       the Commission's Rules ("Rules") and willful and repeated violation of
       Section 73.1350(a) of the Rules. The noted violations involve A
       Radio's failure to enclose an antenna tower having radio frequency
       potential at the base within an effective locked fence, its failure to
       make available a complete public inspection file, and its failure to
       operate its station in accordance with the terms of its station
       authorization.

   II. BACKGROUND

    2. On August 25, 2005, in response to a complaint, resident agents from
       the Commission's San Juan Office of the Enforcement Bureau ("San Juan
       Office") conducted an inspection of station WEGA located in Vega Baja,
       Puerto Rico.  In response to a request to inspect the public file, the
       station was unable to produce any copies of any issues programs lists.
       The agent observed that the easternmost antenna structure, which had
       radio frequency potential at its base, was not enclosed within an
       effective locked fence. Moreover, the agent observed a sizable hole on
       the right side of the perimeter property fence, which would allow
       access to the property. Station WEGA is authorized to utilize three
       uniform cross section, series excited guyed towers. Its station
       authorization requires that they use a two-tower directional array
       during the day and a three-tower directional array at night. The
       station's consulting engineer stated that the station had been
       operating its antenna system at night using the daytime directional
       parameters for more than one year. The consulting engineer provided
       copies of a report dated May 21, 2005 and a status report letter dated
       July 11, 2005, which he had provided to the station owner and which
       explicitly described problems with the equipment that switches the
       directional antenna system from daytime to nighttime patterns. The
       agent found no evidence that special temporary authority ("STA") had
       been sought or granted, which would authorize nighttime operation
       using daytime directional parameters.

    3. On October 25, 2005, the Resident Agent of the San Juan Office issued
       a Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
       $15,000 to A Radio. A Radio filed a response to the NAL  dated January
       11, 2006.

   III. DISCUSSION

    4. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the 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 examining A
       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 may require.

    5. Section 73.49 of the Rules requires that antenna towers having radio
       frequency potential at the base must be enclosed within effective
       locked fences or other enclosures. Individual tower fences need not be
       installed if the towers are contained within a protective property
       fence. On July 25, 2005, an agent observed that the easternmost
       antenna structure had radio frequency potential at the base and that
       it was not enclosed within any fence. The agent also observed a large
       hole in the right side of the perimeter property fence, which would
       allow access to the antenna structure. Thus, the antenna structure was
       not contained within a protective property fence.

    6. In its response to the NAL, A Radio does not dispute that its tower
       was not enclosed within a traditional fence and that there was a hole
       in the perimeter property fence. It asserts the nearby sewage
       treatment plant flooded the area, creating a swampy area around the
       tower, which contains leeches and an occasional crocodile. It requests
       that the forfeiture be reduced or cancelled, because this swamp serves
       as an effective locked fence around the tower. It also claims it is
       impossible to maintain an intact perimeter property fence because of
       vandals. Although the swamp may serve as a deterrent to individuals
       seeking to access the tower, it is not an "effective locked fence," as
       required by the Rules. Moreover, the fact that A Radio cannot prevent
       vandals from entering its property through the hole in the side of the
       perimeter fence highlights the importance of having a fence around its
       tower. Accordingly, we find no basis to cancel or reduce the
       forfeiture associated with this violation.

    7. Section 73.1350(a) of the Rules states that each licensee is
       responsible for maintaining and operating its broadcast station in a
       manner which complies with the technical rules set forth elsewhere in
       this part and in accordance with the terms of the station
       authorization. Station WEGA's authorization requires that they use a
       two-tower directional array during the day and a three-tower
       directional array at night.  On July 25, 2005, the station's
       consulting engineer informed an agent that station WEGA had been
       transmitting with the directional daytime pattern at night for more
       than a year.

    8. In its response to the NAL, A Radio does not dispute that it operated
       its station in a manner inconsistent with its station authorization
       for more than a year. It states that it inherited the station in a
       state of disrepair and was unaware of this particular problem until
       August 2005 because its consulting agent did not forward the
       consulting engineer's reports. It states once it became aware of this
       problem it took prompt steps to obtain an STA. These facts, however,
       provide no basis to cancel or reduce the forfeiture associated with
       this violation. Employees and contractors for A Radio intentionally
       operated the station on its behalf and did so in a manner inconsistent
       with the station's authorization. Indeed some of its contractors had
       actual knowledge that the station was operating inconsistent with the
       terms of the authorization. The "Commission has long held that
       licensees and other Commission regulatees are responsible for the acts
       and omissions of their employees and independent contractors," and the
       Commission has "consistently refused to excuse licensees from
       forfeiture penalties where actions of employees or independent
       contractors have resulted in violations."  Moreover, corrective action
       taken to come into compliance with the Rules is expected, and does not
       nullify or mitigate any prior forfeitures or violations.

    9. Section 73.3526(e) of the Rules requires commercial broadcast stations
       to maintain for public inspection, a file containing materials listed
       in that section.  Section 73.3526(e)(12) requires licensees to place
       in the public inspection file, for each calendar quarter, a list of
       the programs that have provided the station's most significant
       treatment of community issues during the preceding three month period.
       Copies of these lists must be maintained in the file until final
       action has been taken on the station's next renewal application. On
       July 25, 2005, in response to a request to inspect the station's
       public file, the station could not produce any radio issues/programs
       lists, and there was no evidence that these lists had ever been in the
       public file. In its response to the NAL, A Radio does not dispute the
       violation and states that the station manager has been trained on
       public file requirements.

   10. Finally, A Radio requests that the forfeiture be reduced because it is
       a new licensee and because it acquired the station in serious
       disrepair. We do not find these arguments persuasive. A Radio should
       have researched the station's condition prior to purchasing it and
       could have insisted the previous owner correct any violations prior to
       consummation of the sale. At a minimum, however, A Radio should have
       determined the station's condition after it acquired it and should
       have corrected any violations shortly thereafter. A Radio operated the
       station for almost eight months before the date of the inspection and
       failed to take steps to correct several serious violations.

   11. We have examined A 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 A Radio
       willfully violated Sections 73.49 and 73.3526 of the Rules and
       willfully and repeatedly violated Section 73.1350(a) of the Rules. We
       find no basis for cancellation or reduction of the $15,000 forfeiture
       proposed for these violations.

   IV. ORDERING CLAUSES

   12. 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 Commission's Rules, A Radio Company, Inc. IS LIABLE
       FOR A MONETARY FORFEITURE in the amount of $15,000 for violation of
       Sections 73.49, 73.1350(a) and 73.3526 of the Rules.

   13. 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. 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.

   14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to A Radio
       Company, Inc. at its address of record; and an additional copy to A
       Radio's legal counsel, Audrey Rasmussen, Hall Estell Attorneys at Law,
       1120 20^th St. NW, Suite 700, North Building, Washington, DC
       20036-3406.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   47 C.F.R. SS 73.49, 73.1350(a), 73.3526.

   Station WEGA submitted a request for special temporary authority on
   September 2, 2005 to operate with one non-directional antenna.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632680001
   (Enf. Bur., San Juan Office, released October 25, 2005).

   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).

   The agents did note that the area surrounding the tower was flooded.
   However, they did not see leeches or crocodiles during their inspection on
   July 25, 2005.

   See Pittman Broadcasting Services, LLC, 19 FCC Rcd 15320, 15322 (Enf. Bur.
   2004) (determining that marshy conditions or other "natural barriers" are
   not sufficient to constitute compliance with Section 73.49).

   Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
   21861, 21863,-64, para. 7 (2002); MTD, Inc., Memorandum Opinion and Order,
   6 FCC Rcd 34 (1991)(holding that a company's reliance on an independent
   contractor to construct a tower in compliance of FCC rules does not excuse
   that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
   Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
   for violations of FCC rules despite its reliance on a consulting
   engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248 (Enf. Bur. 2004)
   (holding a licensee liable for its employee's failure to conduct weekly
   EAS tests and to maintain the "issues/programs" list).

   American Paging, Inc. of Virginia, Notice of Apparent Liability for
   Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf. Div.,
   Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, 96 FCC 2d
   1235, 1244 (1984).

   See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).

   47 C.F.R. S 73.3526(e).

   47 C.F.R. S 73.3526(e)(12).

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

   47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 73.49, 73.1350(a), 73.3526.

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

   See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 06-2259

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   Federal Communications Commission DA 06-2259