Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
GB Enterprises Communications ) File Number EB-04-TP-098
Corp. )
Licensee of WHNR ) NAL/Acct. No. 200532700011
1505 Dundee Road )
Winter Haven, Florida 33884 ) FRN 0009590217
)
FORFEITURE ORDER
Adopted: January 20, 2006
Released: January 24, 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 ten thousand five
hundred dollars ($10,500) to GB Enterprises
Communications Corp. (``GB Enterprises''), licensee of
station WHNR in Winter Haven, Florida, for willful and
repeated violation of Sections 73.49 and 73.3526 of
the Commission's Rules (``Rules'').1 The noted
violations involve GB Enterprises' failure to enclose
its antenna structures within effective locked fences
and failure to maintain a complete public inspection
file.
II. BACKGROUND
2. On March 22, 2004, agents from the Commission's Tampa,
Florida Office of the Enforcement Bureau (``Tampa
Office'') inspected radio station WHNR-AM at its
studio/transmitter site located on 1505 Dundee Road,
Winter Haven, Florida. The Tampa Office issued a
Notice of Violation to GB Enterprises for various
violations of the Rules, including violations of
Sections 73.49 and 73.3526, for failing to enclose its
antenna structures within effective locked fences and
failing to maintain a complete public inspection
file.2 GB Enterprises responded to the Notice of
Violation on November 29, 2004 and claimed to have
corrected the noted violations.
3. On January 13, 2005, agents from the Tampa Office
inspected radio station WHNR-AM at its
studio/transmitter site located on 1505 Dundee Road,
Winter Haven, Florida. At the time of the inspection,
the station's public file was missing the manual
entitled "The Public and Broadcasting" and its radio
issues/programs list. The agents also observed an
approximately one-foot gap between the gate and fence
of one of the station's antenna structures and a
missing gate for another structure's fence.
4. On August 30, 2005, the District Director of the
Commission's Tampa Field Office of the Enforcement
Bureau (``Tampa Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of
$10,500 to GB Enterprises.3 GB Enterprises filed a
response to the NAL on September 4, 2005, stating that
it had corrected the violations cited in the NAL.4
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
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 GB Enterprises' 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.7
6. 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 March 22, 2004, agents
from the Tampa Office inspected WHNR's three antenna
structure array and found that the fences surrounding
antenna structures one and two were not locked and
that those fences had fallen down in several places.
In response to the Notice of Violation, GB Enterprises
stated that it did not know how the fences became
damaged and that it repaired the fences shortly after
the inspection. However, it also stated in its
response that, following those repairs, its fences
were damaged by hurricanes and that the additional
repairs would be completed soon. On January 13, 2005
agents from the Tampa Office again inspected WHNR's
three antenna structure array and noticed that the
fences surrounding antenna structures one and two
appeared similar to their condition on March 22, 2004,
except that there were locks and chains attached to
the gates. The agents also observed that the fence
surrounding antenna structure three was missing its
gate and that there was an approximately one-foot gap
between the gate and the fence surrounding antenna
structure two. Because the fences surrounding the
antenna structures had large gaps and/or missing
gates, the station's antenna structures were not
enclosed within effective locked fences. Moreover,
the agents observed that there was no protective
property fence surrounding the perimeter of the
property. GB Enterprises does not deny the violations
noted in the NAL and merely states that the fences
have been repaired. Thus, based on the evidence, we
find that GB Enterprises willfully8 and repeatedly9
violated Section 73.49 of the Rules by failing to
enclose its station's antenna structures within
effective locked fences or other enclosures.
7. Section 73.3526 of the Rules requires AM and FM
broadcast stations to maintain for public inspection a
public inspection file containing the material,
relating to that station, described in paragraphs
(e)(1) through (e)(10), (e)(12), (e)(13), and (e)(14)
of this section.10 On March 22, 2004, agents from the
Tampa Office requested to inspect the station's public
file. The public file was missing the written
designation of the chief operator, the most recent
ownership report, the Political File, the ``The Public
and Broadcasting'' manual, and the radio
issues/programs list. On January 13, 2005, agents
from the Tampa Office again found that station's
public file was incomplete. The file was missing the
most recent version of ``The Public and Broadcasting''
manual and the radio issues/programs list. In its
response to the NAL, GB Enterprises does not deny any
of these facts and merely states that the station's
public file has been updated and contains all of the
required information. Thus, based on the evidence, we
find that GB Enterprises willfully and repeatedly
violated Section 73.3526 of the Rules by failing to
make available a complete public inspection file.
8. We have examined GB Enterprises' response to the NAL
pursuant to the statutory factors above,11 and in
conjunction with the Forfeiture Policy Statement. We
find no basis for cancellation or reduction of the
$10,500 forfeiture proposed for these violations.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as
amended,12 and Sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's Rules,13 GB Enterprises
Communications Corp. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $10,500 for violation of
Sections 73.49 and 73.3526 of the Rules.
10. 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.14
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.
20554.15
11. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class Mail and Certified Mail Return
Receipt Requested to GB Enterprises Communications
Corp. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
_________________________
1 47 C.F.R. §§ 73.49, 73.3526.
2 Notice of Violation, NOV No. V20043270006 (Enf. Bur., Tampa
Office, May 5, 2004).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532700011 (Enf. Bur., Tampa Office, released August 30, 2005).
4 The Tampa Office did not receive this response until December
15, 2005.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
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 ....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
9 The 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.'' 47 U.S.C. §
312(f)(2).
10 47 C.F.R. § 73.3526.
11 Although GB Enterprises did not request reduction or
cancellation of its proposed forfeiture, we note that corrective
action taken to come into compliance with the Rules and
cooperation with agents is expected, and does not nullify or
mitigate any prior forfeitures or violations. See Seawest Yacht
Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
12 47 U.S.C. § 503(b).
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.