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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of JMK Communications, Inc. Licensee of Station WPWC(AM)
Dumfries, Virginia ) ) ) ) ) ) ) ) ) File No.: EB-11-CF-0110 NAL/Acct.
No.: 201232340001 FRN No: 0007309503 Facility ID: 25995
Forfeiture Order
Adopted: May 2, 2013 Released: May 3, 2013
By the Regional Director, Northeast Region, Enforcement Bureau:
I. Introduction
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of seven thousand dollars ($7,000) to JMK Communications,
Inc. (JMK), licensee of AM Station WPWC, in Dumfries, Virginia
(Station), for its willful and repeated violation of Section 73.49 of
the Commission's rules (Rules).^ The noted violations involved JMK's
failure to enclose the Station's antenna structures within effective
locked fences or other enclosures.
II. Background
2. On July 18, 2012, the Enforcement Bureau's Columbia Office (Columbia
Office) issued a Notice of Apparent Liability for Forfeiture and Order
(NAL)^ to JMK for violating Section 73.49 of the Rules by failing to
maintain effective locked fences or other enclosures around the
Station's four antenna structures. Specifically, an agent from the
Columbia Office observed during an inspection conducted on September
2, 2011, that one of the Station's antenna structures had no fencing
at all around the base of the structure and the other three antenna
structures had only partial fencing around their bases, thereby
allowing unrestricted access to all the structures. The Columbia
Office concluded that the damage to the fences was so extensive that
they must have been in that condition for a significant period of
time. The agent also had observed that there was no perimeter fence
around the property where the antenna structures were located.
3. JMK submitted a response to the NAL requesting cancellation of the
proposed $7,000 forfeiture because (1) the damage to the fences
surrounding the antenna structures resulted from an "unforeseeable
natural disaster" that caused "extensive flooding" and (2) the antenna
structure site "is protected from public intrusion by natural
barriers," thus ensuring that, during the brief time the fences were
damaged, "there was no reasonable danger of public contact with the
towers."^ JMK also stated, and provided supporting documentation, that
new fences had been installed around the antenna structures as of July
23, 2012.^
III. Discussion
4. The proposed forfeiture amount 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 Forfeiture Policy
Statement.^ In examining JMK's response, Section 503(b)(2)(E) 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.^ As discussed below, we have considered JMK's response in
light of these statutory factors, and find that cancellation of the
forfeiture is not warranted.
5. Section 73.49 of the Rules requires that antenna structures having
radio frequency potential at the base must be enclosed within
effective locked fences or other enclosures.^ On September 2, 2011,
agents from the Columbia Office observed that one of the Station's
antenna structures had no fencing and the other three antenna
structures had only partial fencing. Based on the degree of
deterioration, agents concluded that the fences had been in disrepair
for an extended period of time. In addition, JMK does not dispute the
condition of the fences. Thus, based on the totality of the
circumstances, we find that JMK willfully and repeatedly violated
Section 73.49 of the Rules.
6. We now address JMK's arguments for cancellation of the forfeiture.
First, we decline to cancel or reduce the forfeiture based on JMK's
claim that the damage to the fences observed by the agents during the
inspection on September 2, 2011, was the result of an unforeseeable
natural disaster.^ JMK does not provide the date, or any supporting
documentation, that severe storms and flooding occurred in Dumfries,
Virginia, immediately prior to the agent's inspection. JMK merely
states that the agent's inspection of the fences "appears to have
followed damage caused by extensive flooding and wind from several
storms in quick succession."^ The antenna structure site observed by
the agent during the inspection on September 2, 2011, however, did not
show any signs of a storm severe enough to have damaged and/or removed
portions of the fences.^ In fact, although JMK claims that it had to
wait for the ground to dry before it could replace the fence after the
agent's inspection, the agent found on the day of the inspection that
the ground was solid enough for him to drive down an access road and
onto the field where the antenna structures were located.^ For all
these reasons, we believe that it was negligence on the part of JMK,
and not a natural disaster, that resulted in the absence of one fence
and the deterioration of the other three fences. We therefore decline
to cancel or reduce the forfeiture on these grounds.
7. We also reject JMK's claim that the forfeiture should be cancelled
because the seriousness of the violation is mitigated by the fact that
several sides of the antenna structure site were surrounded by a body
of water and a 30-foot cliff, thereby limiting access to the site
between the time the fences were damaged and the time the fences were
fixed.^ First, the inaccessibility to the site on several sides is
irrelevant if the site is easily accessible from another side of the
site. As noted above, the agent was able to easily gain access to the
antenna structure site by driving down an access road and, at the time
of the agent's inspection, the access road was not closed off by a
locked gate, as JMK reports is now the case.^ Second, by JMK's own
admission, the public can gain access by "swimming or boat" and we
disagree with JMK that the difficulties associated with accessing the
antenna structure site in that manner ensures "[n]o reasonable danger
of public access"^ We therefore find that neither cancellation nor
reduction is warranted on this basis and impose a forfeiture in the
amount of $7,000.
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(f)(4) of the Commission's rules, JMK
Communications, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount
of seven thousand dollars ($7,000) for violation of Section 73.49 of
the Commission's rules.^
9. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ JMK Communications, Inc. shall send
electronic notification of payment to NER-Response@fcc.gov on the date
said payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account number and FRN referenced above. 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.
10. Any request for making full payment over time 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,
[1]ARINQUIRIES@fcc.gov.
11. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to JMK Communications, Inc. at 4525 Wilshire Boulevard, Los
Angeles, California 90010, and to its counsel, Peter Gutmann at Womble
Carlyle Sandridge & Rice, 1200 Nineteenth Street, NW, Suite 500,
Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director
Northeast Region
Enforcement Bureau
^ 47 C.F.R. S 73.49.
^JMK Communications, Inc., Notice of Apparent Liability for Forfeiture and
Order, 27 FCC Rcd 8111 (Enf. Bur. 2012). A comprehensive recitation of the
facts and history of this case can be found in the NAL and is incorporated
herein by reference.
^ Letter from Peter Gutmann, Counsel for JMK Communications, Inc., to the
Columbia Office, Northeast Region, Enforcement Bureau at 1-2 (dated August
17, 2012) (on file in EB-11-CF-0110) (NAL Response).
^ Id. at 2.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 C.F.R. S 73.49.
^ NAL Response at 2.
^ NAL Response at 1.
^ We are not persuaded by the undated, out-of-context photograph submitted
by JMK as evidence of "a segment of the wooden fence that previously had
surrounded the towers but that was washed away in the flood waters and was
found a considerable distance from the site." NAL Response at 1. We also
note that, in its NAL Response, JMK addresses what it believes caused
damage to "segments of the wooden fence" and "major portions of the former
tower fencing," but does not address the antenna structure that had no
fence at all. Because we find no basis to conclude that a natural disaster
was the cause of the damage to the fences that were missing "portions" or
"segments," we find it unnecessary to consider whether a natural disaster
could have washed away an entire fence.
^ We also note that the complaint that prompted the agent's inspection
referenced an online article, dated August 20, 2011, which contained a
photograph showing a severely damaged fence at the Station's antenna
structure site. See Crew Called to Fire at Radio Tower, Potomac Local News
(August 20, 2011) [2]www.potomaclocal.com. Thus, even prior to the agent's
inspection on September 2, 2011, there is evidence that at least one of
the fences was severely damaged.
^ NAL Response at 2.
^ Id.; Agent's Statement on file in EB-11-CF-0110.
^ NAL Response at 2; see also cf. A Radio Company, Inc., Memorandum
Opinion and Order, 22 FCC Rcd 2019 (2007) (reducing forfeiture because
12-inch deep swamp filled with crocodiles and leaches surrounding antenna
structure was considered a semi-permanent barrier impeding access to the
base of the antenna structure).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
73.49.
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ 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.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 13-982
2
Federal Communications Commission DA 13-982
References
Visible links
1. mailto:ARINQUIRIES@fcc.gov
2. http://www.potomaclocal.com/