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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Equity Communications LP Licensee of AM Station WCMC
   Wildwood, New Jersey ) ) ) ) ) ) ) File No.: EB-11-PA-0230;
   EB-FIELDNER-12-00004388 NAL/Acct. No.: 201232400007 FRN: 0003747813
   Facility ID No.: 70259




                                Forfeiture Order

   Adopted: September 17, 2014 Released: September 17, 2014

   By the Regional Director, Northeast Region, Enforcement Bureau:

   I. Introduction

    1. We impose a penalty of $10,000 against Equity Communications LP
       (Equity) for failing to enclose its antenna structure within an
       effective locked fence or other enclosure. The Commission's fencing
       rules protect the public by limiting access to areas with a high
       potential for radiofrequency exposure. Equity does not deny that a
       portion of its fencing structure was missing allowing unrestricted
       public access, but requests a reduction of the forfeiture because it
       repaired the fence as quickly as practicable and it has a history of
       compliance with the Commission's rules. We find these arguments
       provide insufficient basis to reduce the forfeiture and deny Equity's
       request.

    2. Specifically, we issue a monetary forfeiture to Equity, licensee of AM
       Station WCMC in Wildwood,  New Jersey (Station), for willfully and
       repeatedly violating Section 73.49  of the Commission's rules (Rules)
       by failing to enclose that Station's antenna structure within an
       effective locked fence or other enclosure.^

   II. Background

    3. On October 18, 2011, agents from the Enforcement Bureau's Philadelphia
       Office (Philadelphia Office) inspected the Station's Antenna Structure
       located on West 19^th Avenue in Wildwood, New Jersey. The Philadelphia
       Office 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.

    4. 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. A permanent fence was
       installed on November 16, 2001.

    5. July 17, 2012, the Philadelphia Office issued a Notice of Apparent
       Liability for Forfeiture and Order  (NAL) ^ ^ to Equity for failure to
       enclose the Antenna Structure within an effective locked fence or
       enclosure, in violation of Section 73.49 of the Rules. Equity filed a
       response to the NAL on August 16, 2012. Equity does not dispute the
       findings in the NAL, but requests a cancellation or reduction in the
       proposed forfeiture based on its immediate efforts to bring the
       Antenna Structure into compliance with the Rules and its overall
       history of compliance with the  Rules.^

   III. Discussion

    6. 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 Equity'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 fully considered Equity's
       response to the NAL in light of these statutory factors and find that
       cancellation or reduction of the forfeiture is not warranted.

    7. We affirm the findings in the NAL regarding Equity's failure to
       maintain an effective locked fence around the Antenna Structure. As
       described above, an agent from the Philadelphia Office found that the
       Antenna Structure was not enclosed by an effective locked fence or
       other enclosure on October 18 and 25, 2011. Equity does not dispute
       these findings. Accordingly, we find that Equity willfully and
       repeatedly violated Section 73.49 of the Rules.

    8. We decline to grant Equity's request to cancel or reduce the base
       forfeiture and/or the upward adjustment based on its claim that it
       "proceeded to remedy the situation as promptly as was practicable
       under the circumstances after having been notified of the violation by
       the Commission."^ When the agent contacted Equity after the initial
       inspection on October 18, 2011, Equity's President reported that the
       fence had been damaged during a hurricane, thereby demonstrating that
       Equity was aware that the fence was damaged prior to being notified by
       the FCC agent. Even assuming that Equity was not aware of the damage
       to the fence until it was notified by the agent, we do not agree with
       Equity that it took action "as promptly as was practicable under the
       circumstances." When the agent returned to the site on October 25,
       2011, the agent found the fence still in the same condition as it was
       on October 18, 2011. It was not until October 28, 2011, after the
       agent contacted Equity a second time, that a temporary fence was
       installed. A permanent fence was not installed until November 16,
       2011. In any event, as Equity recognizes in its NAL Response, it is
       long-standing Commission policy that  corrective action taken to come
       into compliance with the Rules is expected, and such corrective action
       does not nullify or mitigate prior violations or associated forfeiture
       liability.^  We therefore affirm our finding in the NAL that Equity's
       actions represent a deliberate disregard for the Rules that warrant
       both the base forfeiture amount and the upward adjustment. ^ ^

    9. We also deny Equity's request to cancel or reduce the forfeiture based
       on its history of compliance with the Rules. First, we have determined
       that Equity received a Notice of Violation in 2002 for failing to
       maintain the paint on antenna structure number 1046075 as required by
       Section 17.50(a) of the Rules and failing to notify the Commission of
       Equity's purchase of antenna structure number 1046075.^ Second, in
       2010, FCC agents observed that the paint was severely faded on another
       antenna structure owned by Equity and that the antenna structure was
       not enclosed within an effective locked fence.^ For these reasons, we
       find that a reduction for history of compliance with the Rules is not
       warranted.

   IV. ordering clauses

   10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
       and Sections 0.111, 0.204, 0.311, 0.314, and 1.80(f)(4) of the Rules,
       Equity Communications, LP IS LIABLE FOR A MONETARY FORFEITURE in the
       amount of ten thousand dollars ($10,000) for violation of Section
       73.49 of the Rules.^

   11. 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.^  Equity Communications LP shall send
       electronic notification of payment to NER-Response@fcc.gov on the date
       said payment is made.

   12. 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.

   13. Any request for 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.

   14. 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 Equity Communications, LP, 8025 Black Horse Pike, Suite
       100-102, West Atlantic City, New Jersey, 08232 and to its counsel,
       David D. Burns, Latham & Watkins LLP, 555 Eleventh Street, NW, Suite
       1000, Washington, DC 20004.

   FEDERAL COMMUNICATIONS COMMISSION

   G. Michael Moffitt

   Regional Director, Northeast Region

   Enforcement Bureau

   ^ 47 U.S.C. S 73.49.

   ^Equity Communications, LP,  Notice of Apparent Liability for Forfeiture
   and Order, 27 FCC Rcd 8031 (Enf. Bur. 2012).

   ^ Letter from David L. Burns, Latham & Watkins, LLP, Counsel for Equity
   Communications L.P., to the Philadelphia Office (Nov. 22, 2011) (on file
   in EB-FIELDNER-12-00004388) (NAL Response).

   ^ 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).

   ^ NAL Response at 2.

   ^ See, e.g., Argos Net, Inc., Forfeiture Order, 28 FCC Rcd 1126 (Enf. Bur.
   2013) (finding that post-notification remedial efforts do not warrant
   mitigation of a forfeiture) (citing Int'l Broad. Corp., Order on Review,
   25 FCC Rcd 1538 (2010)).

   ^ Contrary to Equity's claim (NAL Response at 4), the Commission has
   issued upward adjustments based on a subject's deliberate disregard of the
   Rules in a wide range of cases, not just cases involving unlicensed radio
   station operation. See e.g., Iglesia Cristiana Ebenezer, Inc., Notice of
   Apparent Liability for Forfeiture, 28 FCC Rcd 14642 (Enf. Bur. 2013)
   (assessing upward adjustment on FM Translator licensee for deliberate
   disregard of the Rules for continuing to operate its station at an
   unauthorized location even after it was specifically directed by FCC
   agents to cease the unauthorized operation); see also Fellowship World,
   Inc., Notice of Apparent Liability for Forfeiture, 28 FCC Rcd 10246 (Enf.
   Bur. 2013) (assessing upward adjustment on broadcast licensee for
   operating its transmitter at an unauthorized location).

   ^ Equity Communications, LP, Notice of Violation (rel. Aug. 15, 2002) (on
   file in EB-02-PA-287).

   ^ See Equity Communications, LP,  Notice of Apparent Liability for
   Forfeiture and Order, 27 FCC Rcd 8031 (Enf. Bur. 2012). Section 504(c) of
   the Act, 47 C.F.R. S 504(c), prohibits the use of a non-final,
   non-adjudicated forfeiture proceeding in any other proceeding before the
   Commission. The Commission, however, may consider the underlying facts
   associated with non-final, non-adjudicated forfeiture proceedings. See
   [2]Forfeiture Policy Statement, 12 FCC Rcd at 17102-03, paras. 32-35. Such
   facts may be used to demonstrate "a pattern of non-complaint behavior
   against a licensee in a subsequent renewal, forfeiture, transfer, or other
   proceeding." Id. at 17103, para. 34; see also [3]Paulino Bernal
   Evangelism, Memorandum Opinion and Order, 21 FCC Rcd 9532, 9535, para. 11
   (Enf. Bur. 2006) (in considering whether a history of compliance exists,
   the Commission may consider violations occurring in cases where there has
   been no final determination), modified on other grounds, Order on Review,
   [4]23 FCC Rcd 15959 (Enf. Bur. 2006).

   ^ 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 14-1342

   2

   Federal Communications Commission DA 14-1342

References

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