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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
Adopted: September 17, 2014 Released: September 17, 2014
By the Regional Director, Northeast Region, Enforcement Bureau:
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
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.^
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
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.^
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
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, 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
^ 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
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 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,
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),
^ 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)
Federal Communications Commission DA 14-1342
Federal Communications Commission DA 14-1342