Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Sound Communications, LLC Owner of Antenna Structure
   Number 1053420 Licensee of AM Station WENY Southport, New York ) ) ) ) ) )
   File No.: EB-FIELDNER-13-00009899 NAL/Acct. No.: 20142400005 FRN:
   0019815109 Facility ID No.: 71510




                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: June 2, 2014 Released: June 2, 2014

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

   I. INTRODUCTION

    1. We propose a penalty of $7,000 against Sound Communications, LLC
       (Sound Communications) for apparently failing to enclose AM Station
       WENY's antenna structure in Southport, New York, within an effective
       locked fence. Sound Communications admitted to leaving a gate unlocked
       for several days so that personnel from a tower repair company could
       gain access to the antenna structure site in order to prepare a bid
       for a repair project. The unlocked gate was of particular concern to
       FCC agents because the antenna structure is located in a residential
       neighborhood.

    2. In this Notice of Apparent Liability for Forfeiture (NAL), we find
       that Sound Communications, licensee of Station WENY and owner of
       antenna structure number 1053420 (Antenna Structure) in Southport, New
       York, apparently willfully and repeatedly violated Section 73.49 of
       the Commission's rules (Rules),^ by failing to enclose the antenna
       structure within an effective locked fence. We conclude that Sound
       Communications is apparently liable for a forfeiture in the amount of
       seven thousand dollars ($7,000).

   II. BACKGROUND

    3. On July 11, 2013, at 7:00 p.m., an agent of the Enforcement Bureau's
       Philadelphia Office conducted a random inspection of the Antenna
       Structure, which is located along Milton Street in Southport, New
       York, and is utilized as the transmission antenna for AM Station WENY.
       During the inspection, the agent observed that the fence was in good
       condition, the gate was closed, the padlock was on the gate's hasp,
       but the padlock was not locked. The unlocked padlock allowed
       unrestricted access to the Antenna Structure which had radio frequency
       (RF) potential at its base and was located near a residential area.
       There was no perimeter fence around the property where the antenna
       structure was located.

    4. On July 12, 2013, the agent spoke by telephone to the station engineer
       for Sound Communications, who reported that he was last at the site on
       or about June 29, 2013. He further reported that he left the gate
       unlocked that day so that a contractor could access the Antenna
       Structure.

    5. On July 30, 2013, the Philadelphia Office issued Sound Communications
       a Notice of Violation for failing to enclose the Antenna Structure
       within an effective locked fence or other enclosure.^  On August 16,
       2013, Sound Communications submitted a response to the Notice of
       Violation, confirming that the station engineer intentionally left the
       gate unlocked to allow personnel from a tower repair company to access
       the site in order to finalize a proposed bid for a tower repair
       project.^ Sound Communications also clarified that the station
       engineer was at the site on July 5, 2013, not on or about June 29,
       2013, as previously reported by the station engineer.

   III. DISCUSSION

    6. 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 or Other Enclosure

    7. The evidence in this case is sufficient to establish that Sound
       Communications violated Section 73.49 of the Rules. Section 73.49 of
       the Rules states that antenna structures "having radio frequency
       potential at the base . . . must be enclosed within effective locked
       fences or other enclosures." Individual fences need not be installed
       if the antenna structures are contained within a protective property
       fence. Station WENY's antenna structure has radio frequency potential
       at the base.^ On July 11, 2013, an agent from the Philadelphia Office
       observed that the gate for the fence surrounding the Antenna Structure
       was left unlocked during a time when Station WENY was in operation.
       Sound Communications admitted in its NOV Response that the fence had
       intentionally been left unlocked by the station engineer on July 5,
       2013, and that it remained open until the agent's inspection on July
       11, 2013. There was no perimeter fence surrounding the property. Based
       on the evidence before us, we find that Sound Communications
       apparently willfully and repeatedly violated Section 73.49 of the
       Rules by failing to have an effective locked fence or other enclosure
       around the base of its antenna structure.

    B. Proposed Forfeiture

    8. Pursuant to the Commission's Forfeiture Policy Statement and Section
       1.80 of the Rules, the base forfeiture amount for an AM tower fencing
       violation 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.^
       Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
       and the statutory factors to the instant case, we conclude that Sound
       Communications is apparently liable for a total forfeiture in the
       amount of $7,000.

   IV. ORDERING CLAUSES

    9. 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, Sound
       Communications, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR
       A FORFEITURE in the amount of seven thousand dollars ($7,000) for
       violations of Section 73.49 of the Rules.^

   10. 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 Sound
       Communications LLC SHALL PAY the full amount of the proposed
       forfeiture or SHALL FILE a written statement seeking reduction or
       cancellation of the proposed forfeiture.

   11. 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. Sound Communications shall also send
       electronic notification on the date said payment is made to
       [1]NER-Response@fcc.gov. 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 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,
       [2]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 1.16 and 1.80(f)(3) 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. Sound Communications also
       shall e-mail the written response to [3]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 principles (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 Sound Communications LLC at 15
       Woodland Way, Painted Post, New York 14870 and Drinker Biddle & Reath
       LLP, 1900 K Street, N.W.,Washington, D.C. 200005-1209.

   FEDERAL COMMUNICATIONS COMMISSION

   David C. Dombrowski

   District Director

   Philadelphia Office

   Northeast Region

   Enforcement Bureau

   ^ 47 C.F.R. S 73.49.

   ^ See Sound Communications, LLC, Notice of Violation, V201332400035 (July
   30, 2013) (on file in EB-FIELDNER-13-00009899).

   ^ Letter from Alisa R. Lahey, Drinker Biddle & Reath LLP, Counsel for
   Sound Communications LLC, to Philadelphia Office, Northeast Region,
   Enforcement Bureau (August 16, 2013) (on file in EB-FIELDNER-13-00009899)
   (NOV Response).

   ^ 47 U.S.C. S 503(b).

   ^ 47 U.S.C. S 312(f)(1).

   ^ H.R. Rep. No. 97-765, 97^th 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., 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.

   ^ See License File No. BL-19990804DE.

   ^ 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 U.S.C. S 503(b); 47 C.F.R. SS 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. SS 1.16, 1.80(f)(3).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 14-742

                                       4

   Federal Communications Commission DA 14-742

References

   Visible links
   1. mailto:NER-Response@fcc.gov
   2. mailto:ARINQUIRIES@fcc.gov
   3. mailto:NER-Response@fcc.gov