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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                       )                                
                                                                        
                                       )                                
     In the Matter of                      File No.: EB-09-DT-0386      
                                       )                                
     Birach Broadcasting Corporation       NAL/Acct. No.: 201132360005  
                                       )                                
     Licensee of Station WCXI(AM)          FRN: 0003766847              
                                       )                                
     Fenton, Michigan                      Facility ID #: 10475         
                                       )                                
                                                                        
                                       )                                


             NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

   Adopted: June 1, 2012 Released: June 1, 2012

   By the District Director, Detroit Office, Northeast Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
       we find that Birach Broadcasting Corporation (Birach), licensee of AM
       Station WCXI in Fenton, Michigan (Station), apparently willfully and
       repeatedly violated (1) Section 73.49 of the Commission's rules
       (Rules) by failing to enclose the Station's antenna structure within
       an effective locked fence; and (2) Sections 73.3526(e)(12) and
       73.3526(c)(1) of the Rules by failing to maintain and make available
       the issues/program lists in the Station's public inspection file. We
       conclude that Birach is apparently liable for a forfeiture in the
       amount of seventeen thousand dollars ($17,000). We further direct
       Birach to submit, no later than thirty (30) calendar days from the
       date of this NAL, a written statement signed under penalty of perjury
       stating that the Station is now in compliance with Sections 73.49 and
       73.3526 of the Rules.

   II. BACKGROUND

    2. On February 18, 2010, in response to a complaint, an agent from the
       Enforcement Bureau's Detroit Office (Detroit Office) conducted an
       inspection of the Station's main studio with the Station Manager. The
       agent reviewed the materials in the Station's public inspection file
       and found that the file did not contain any quarterly issues/programs
       lists for the current license term, i.e., it was missing 24 quarters
       of issues/programs lists. The agent had planned to inspect the
       Station's two-tower antenna structure array on that day as well, but
       access to the structures was blocked by snow.

    3. On March 25, 2010, the agent returned to inspect the Station's
       two-tower array and observed that the fence enclosing antenna
       structure number 1049269 (Antenna Structure) was severely damaged.
       Specifically, a portion of the fence had separated, resulting in a gap
       that allowed unrestricted access to the Antenna Structure. Based on
       the severity of the fence's deterioration and the amount of plant
       growth surrounding the fence, the agent concluded that it was a
       condition that had existed for a considerable period of time. The
       agent also observed that there was no perimeter property fence
       surrounding the property.

    4. On May 20, 2010, the Detroit Office issued a letter of inquiry (LOI)
       requesting information regarding, inter alia, the Station's missing
       issues/programs lists and the Antenna Structure fencing. On June 9,
       2010, the Detroit Office received a reply to the LOI, which included
       declarations from the Station's owner, contract engineer, and manager.
       In the LOI Response, Birach did not dispute that the fencing was in
       need of repair and the Station's contract engineer reported that he
       repaired the fencing around the Antenna Structure and properly secured
       the gate. Birach also did not dispute that the issues/programs lists
       were missing. The Station's manager reported that she had never been
       instructed to maintain issues/programs lists in the public inspection
       file. The Station's manager further stated that, after receipt of the
       LOI, Birach's attorney provided her instructions on how to maintain
       the issues/programs lists.

   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 Section
       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 requires that antenna structures having
       radio frequency potential at the base (e.g., series fed, folded
       unipole, and insulated base antennas) must be enclosed within
       effective locked fences or other enclosures. The agent's inspection of
       the series fed  Antenna Structure on March 25, 2010, revealed that the
       gap in the fence allowed unrestricted access to the base of the
       Antenna Structure. Further, the severity of the fence's deterioration
       and the amount of plant growth surrounding the fence clearly indicated
       that the fence had been in this condition for quite some time. Based
       on the evidence before us, we find that Birach apparently willfully
       and repeatedly violated Section 73.49 of the Rules.

     A. Failure to Maintain and Make Available Issues/Programs Lists

    7. Section 73.3526(a)(2) of the Rules requires broadcast stations to
       maintain for public inspection a file containing materials listed in
       that section. Section 73.3526(c)(1) of the Rules specifies that the
       file shall be available for public inspection at any time during
       regular business hours, and Section 73.3526(e)(12) of the Rules
       specifically requires licensees to place in their public inspection
       file each calendar quarter a list of programs that have provided the
       station's most significant treatment of community issues during the
       preceding three month period (known as the issues/programs list). The
       issues/programs lists must include "a brief narrative describing what
       issues were given significant treatment and the programming that
       provided this treatment," including, but not limited to, the time,
       date, duration, and title of each program in which the issue was
       treated. Copies of the issues/programs list must be retained in the
       public inspection file until final action has been taken on the
       station's next license renewal application.

    8. On February 18, 2010, an agent reviewed the Station's public
       inspection file and found that it did not have any quarterly
       issues/programs lists for the current license term. Accordingly, based
       on the evidence before us, we find that Birach apparently willfully
       and repeatedly violated Sections 73.3526(e)(12) and 73.3526(c)(1) of
       the Rules by failing to maintain the issues/programs lists and make
       them available in the Station's public inspection file.

     A. Proposed Forfeiture and Reporting Requirement

    9. 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 and the base forfeiture amount
       for violation of public inspection file rules is $10,000. 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. Applying the Forfeiture Policy
       Statement, Section 1.80 of the Rules, and the statutory factors to the
       instant case, we conclude that Birach is apparently liable for a total
       forfeiture in the amount of $17,000.

   10. We further direct Birach to submit a statement pursuant to Section
       1.16 of the Rules signed under penalty of perjury by an officer or
       director of Birach stating that (1) an effective locked fence has been
       installed around the Antenna Structure, (2) the radio issues/program
       lists have been compiled, and (3) the issues/program lists have been
       and are continuing to be placed in the public inspection file by the
       tenth day of the succeeding calendar quarter. This statement must be
       provided to the Detroit Office at the address listed in paragraph 13 
       within thirty (30) calendar days of the release date of this NAL.

   IV. ORDERING CLAUSES

   11. 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, Birach Broadcasting
       Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
       FORFEITURE in the amount of seventeen thousand dollars ($17,000) for
       violations of Sections 73.49, 73.3526(c)(1) and 73.3526(e)(12) of the
       Rules.

   12. 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 and Order,
       Birach Broadcasting Corporation SHALL PAY the full amount of the
       proposed forfeiture or SHALL FILE a written statement seeking
       reduction or cancellation of the proposed forfeiture.

   13. IT IS FURTHER ORDERED that Birach Broadcasting Corporation SHALL
       SUBMIT a sworn statement, as described in paragraph 10, within thirty
       (30) calendar days of the release date of this Notice of Apparent
       Liability for Forfeiture and Order. The statement  must be mailed to
       Federal Communications Commission, Enforcement Bureau, Northeast
       Region, Detroit Office, 24897 Hathaway Street, Farmington Hills,
       Michigan 48335-1552. Birach Broadcast Corporation also shall email the
       written response to NER-Response@fcc.gov .

   14. Payment of the forfeiture must be made by credit card, check or
       similar instrument, payable to the order of the Federal Communications
       Commission. The payment must include the Account Number and FRN
       referenced above. Payment by check or money order may be mailed to
       Federal Communications Commission, P.O. Box 979088, St. Louis, MO
       63197-9000. Payment by overnight mail may be sent to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101. Payment by wire transfer may be made to ABA Number
       021030004, receiving bank TREAS/NYC, and account number 27000001. For
       payment by credit card, an FCC Form 159 (Remittance Advice) must be
       submitted.  Regardless of the form of payment, an FCC Form 159
       (Remittance Advice) must be submitted. When completing the FCC Form
       159, enter the NAL/Account number in block number 23A (call sign/other
       ID), and enter the letters "FORF" in block number 24A (payment type
       code). Requests for full payment under an installment plan should be
       sent to:  Chief Financial Officer - Financial Operations, 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 at 1-877-480-3201 or Email:
       ARINQUIRIES@fcc.gov. Birach Broadcasting Corporation shall also send
       electronic notification on the date said payment is made to
       NER-Response@fcc.gov.

   15. 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, Detroit Office, 24897 Hathaway Street, Farmington Hills,
       Michigan 48335 and include the NAL/Acct. No. referenced in the
       caption. Birach Broadcasting Corporation also shall email the written
       response to NER-Response@fcc.gov.

   16. 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.

   17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture and Order shall be sent by both Certified Mail, Return
       Receipt Requested, and regular mail, to Birach Broadcasting
       Corporation  at 21700 Northwestern Highway, Tower 14, Southfield,
       Michigan 48075.

   FEDERAL COMMUNICATIONS COMMISSION

   James A. Bridgewater

   District Director

   Detroit Office

   Northeast Region

   Enforcement Bureau

   47 C.F.R. S:S: 73.49 and 73.3526(e)(12).

   The current license term began when the license renewal application was
   granted on September 20, 2004. See File No. BR-20040525AAV.

   See Letter of Inquiry from James Bridgewater, District Director, Detroit
   Office, Northeast Region, Enforcement Bureau, to Birach Broadcasting
   Corporation, dated May 20, 2010.

   See Letter from Lauren A. Colby, Counsel for Birach Broadcasting
   Corporation, to James Bridgewater, District Director, Detroit Office,
   Northeast Region, Enforcement Bureau, dated June 9, 2010 (LOI Response).
   The LOI Response contained three Declarations: (1) Declaration from Sima
   Birach, the President and sole shareholder of Birach (Birach Declaration),
   (2) Declaration from Ralph Haines, a contract engineer for Birach (Haines
   Declaration), and (3) Brenda Charette, the Station's manager (Charette
   Declaration).

   See Birach Declaration at 1 and Haines Declaration at 2.

   See Birach Declaration at 1 and Charette Declaration at 1.

   Charette Declaration at 1.

   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) (Southern
   California Broadcasting Co.).

   See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 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."

   47 C.F.R. S: 73.49.

   47 C.F.R. S: 73.3526(a)(2).

   47 C.F.R. S: 73.3526(c)(1).

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

   Id.

   The license term for Station WCXI commenced on September 20, 2004, when
   the FCC granted WCXI's license renewal application. See File No.
   BR-20040525AAV.

   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).

   47 C.F.R. 1.16.

   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, 73.3526(c)(1), 73.3526(e)12.

   See 47 C.F.R. S: 1.1914.

   See 47 C.F.R. S:S: 1.80(f)(3), 1.16.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 12-846

                                       5

   Federal Communications Commission DA 12-846