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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-PA-0230
)
Equity Communications LP NAL/Acct. No.: 201232400007
)
Licensee of AM Station WCMC FRN: 0003747813
)
Wildwood, New Jersey Facility ID No.: 70259
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 17, 2012 Released: July 17, 2012
By the Acting District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Equity Communications LP (Equity), the licensee of AM Station
WCMC in Wildwood, New Jersey (Station), apparently willfully and
repeatedly violated Section 73.49 of the Commission's rules (Rules) by
failing to enclose the Station's antenna structure (Antenna Structure)
within an effective locked fence or other enclosure. We conclude that
Equity is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. On October 18, 2011, agents from the Enforcement Bureau's Philadelphia
Office inspected the Station's antenna structure located on West 19th
Avenue in Wildwood, New Jersey. The agents observed that the Antenna
Structure, which is located in a residential neighborhood and has
radio frequency potential at its base, was not enclosed by an
effective locked fence or other enclosure. Although there were
remnants of a fence, the portion of the fence that remained did not
restrict access to the base of the antenna structure. The agents
immediately contacted the Station's President and General Manager
(President), who claimed that a hurricane had washed away a portion of
the fence. The agents advised the President to either cease operating
the Station until a fence could be installed or install a temporary
fence to restrict access to the base of the antenna structure.
3. On October 25, 2011, an agent re-inspected the Antenna Structure and
found that the Station was broadcasting and the fence around the
antenna structure was in the same condition as it was during the
October 18, 2011 inspection. The next day, the agent spoke with
Equity's President, who stated that he was in contact with a
contractor about installing a fence. The agent reiterated to Equity's
President that he should install a temporary fence until a permanent
fence can be installed. On October 28, 2011, Equity's President sent
an e-mail to the agent, along with photographs, stating that a
temporary chain link fence had been installed.
4. On July 5, 2012, agents conducted a follow-up inspection of the
Antenna Structure and observed that Equity had installed a permanent
fence.
III. DISCUSSION
5. Section 503(b) of the Communications Act of 1934, as amended (Act),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful. The term "repeated" means the commission or omission
of such act more than once or for more than one day.
A. Failure to Enclose the Antenna Structure Within an Effective Locked
Fence
6. Section 73.49 of the Rules states that "[a]ntenna towers having radio
frequency potential at the base . . . must be enclosed within
effective locked fences or other enclosures." Station WCMC's antenna
structure has radio frequency potential at its base. On October 18,
2011, agents found that a substantial portion of the fence that had
previously enclosed the Antenna Structure was missing, thereby
allowing unrestricted access to the structure's base. When an agent
returned to re-inspect the Antenna Structure on October 25, 2011, the
agent found that, notwithstanding the earlier warning to either cease
broadcasting or erect a temporary fence, the Station continued to
broadcast without a repaired or temporary fence. Based on the evidence
before us, we find that Equity apparently willfully and repeatedly
violated Section 73.49 of the Rules by failing to enclose the
Station's antenna structure within an effective locked fence or
enclosure.
A. Proposed Forfeiture Amount
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failure to maintain
an effective AM tower fence is $7,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. After consideration of these factors, we find that a
$3,000 upward adjustment in the base forfeiture amount is warranted.
The Philadelphia Office previously issued a Notice of Apparent
Liability for Forfeiture to Equity for, inter alia, its failure to
enclose within effective locked fences the antenna structures used in
the operation of another Equity station - AM Station WMID in Atlantic
City, New Jersey. The fact that Equity previously committed a similar
violation and the fact that Equity did not immediately correct the
violation at issue here demonstrates a deliberate disregard for the
Commission's rules. Accordingly, applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Equity is apparently liable for a total
forfeiture in the amount of $10,000.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, Equity Communications
LP is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of ten thousand dollars ($10,000) for violation of Section
73.49 of the Commission's rules.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Equity
Communications LP SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
10. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Equity shall also send electronic
notification of payment to [Author ID1: at Tue Jul 17 11:29:00 2012
][Author ID2: at Fri Dec 13 15:45:52 1901 ][Author ID1: at Tue Jul 17
11:29:00 2012 ][Author ID1: at Tue Jul 17 11:29:00 2012 ][Author ID1:
at Tue Jul 17 11:29:00 2012 ]NER-Response@fcc.gov on the date said
payment is made.
11. Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID)
and enter the letters "FORF" in block number 24A (payment type
code). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
12. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Philadelphia Office, One Oxford Valley Building, Suite 404,
2300 East Lincoln Highway, Langhorne, Pennsylvania 19047 and include
the NAL/Acct. No. referenced in the caption. Equity also shall email
the written response to [Author ID1: at Tue Jul 17 11:29:00 2012
][Author ID2: at Fri Dec 13 15:45:52 1901 ][Author ID1: at Tue Jul 17
11:29:00 2012 ][Author ID1: at Tue Jul 17 11:29:00 2012 ][Author ID1:
at Tue Jul 17 11:29:00 2012 ]NER-Response@fcc.gov.
14. The Commission 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. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and First Class Mail to Equity Communications LP at 8025
Black Horse Pike, Suite 100-102, West Atlantic City, New Jersey 08232.
FEDERAL COMMUNICATIONS COMMISSION
Kevin Doyle
Acting District Director
Philadelphia District Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 73.49.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S: 73.49.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See Equity Communications LP, Notice of Apparent Liability for Forfeiture,
26 FCC Rcd 15187 (Enf. Bur. 2011).
We note that we are not using the issuance of the prior NAL to Equity's
prejudice as prohibited by Section 504(c) of the Act, 47 U.S.C. S: 504(c),
but rather are appropriately considering "the underlying facts of a prior
violation that shows a pattern of non-complaint behavior." See [Author
ID1: at Tue Jul 17 11:29:00 2012 ][Author ID2: at Fri Dec 13 15:45:52 1901
][Author ID1: at Tue Jul 17 11:29:00 2012 ][Author ID1: at Tue Jul 17
11:29:00 2012 ][Author ID2: at Fri Dec 13 15:45:52 1901 ][Author ID1: at
Tue Jul 17 11:29:00 2012 ]Forfeiture Policy Statement, 12 FCC Rcd at
17103, para. 34; see also Clean Credit, Inc., Notice of Apparent Liability
for Forfeiture, 25 FCC Rcd 12881 (2010) at para. 7 (using the underlying
facts from a prior NAL issued to Clean Credit, Inc. to support an upward
adjustment in the proposed forfeiture amount).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.49.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1132
Federal Communications Commission DA 12-1132