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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Birach Broadcasting Corporation Licensee of Station
WCXI(AM) Fenton, Michigan ) ) ) ) ) ) ) File No.: EB-09-DT-0386;
EB-FIELDNER-12- 00004564 NAL/Acct. No.: 201232360005 FRN: 0003766847
Facility ID #: 10475
Adopted: February 9, 2015 Released: February 9, 2015
By the Regional Director, Northeast Region, Enforcement Bureau:
1. We impose a penalty of $17,000 against Birach Broadcasting Corporation
(Birach), licensee of AM Station WCXI in Fenton, Michigan (Station),
for failing to enclose the Station's antenna structure within an
effective locked fence and for failing to maintain and make available
the issue/program lists in the Station's public inspection file.^
Birach does not deny that the antenna structure was not properly
enclosed and that the program lists were not available for inspection,
but argues that it does not own the tower site and that the program
lists were at the station just improperly organized. After reviewing
Birach's response to the NAL, we find no reason to cancel, withdraw,
or reduce the proposed penalty, and we therefore assess the $17,000
forfeiture the Bureau previously proposed.
2. In response to an interference 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
issue/program lists for the current license term. On a separate date,
the agent returned to inspect the Station's two-tower array and
observed that a portion of the fence had separated, resulting in a gap
that allowed unrestricted access to the Antenna Structure and that
there was no perimeter property fence surrounding the property.
3. On June 1, 2012, the Bureau issued the NAL ^ proposing a $17,000
forfeiture against Birach for its apparent willful and repeated
violation of Sections 73.49, 73.3526(e)(12), and 73.3526(c)(1) of the
Commission's rules (Rules),^ by failing to enclose the Station's
antenna structure within an effective locked fence and failing to
maintain and make available the issue/program lists in the Station's
public inspection file.
4. On June 29, 2012, Birach filed a response to the NAL.^ Birach makes a
number of arguments as to why the NAL should be cancelled or reduced,
specifically stating that it does not own the towers used by the
Station and therefore should "not be fined for something that is not
[its] responsibility." ^ Birach further states that while the program
lists were not immediately available for inspection due to confusion
over the proper preparation of the lists, they were in the Station and
were subsequently properly reassembled and placed in the public
inspection file.^ Birach also argues that a downward adjustment or
cancellation is warranted because remedial action to address the
violations has been made.^
5. The Bureau proposed a forfeiture in this case in accordance with
Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
Commission's Forfeiture Policy Statement.^ When we assess forfeitures,
Section 503(b)(2)(E) requires that we 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 such other matters as justice may
require."^ As discussed below, we have fully considered Birach's
response to the NAL, but we find none of the arguments persuasive. We
therefore affirm the $17,000 forfeiture proposed in the NAL.
A. Responsibility to Enclose the Antenna Structure within an Effective
Locked Fence Lies with the AM Licensee
6. Birach requests reduction or cancellation of the proposed forfeiture
arguing that it does not own the towers used by the Station.^ We
decline to grant Birach's request to reduce or cancel the forfeiture.
When adopting Section 73.49 of the Rules, the Commission stated that
the AM antenna structure fencing requirement "is necessary to protect
the general public."^ We have also warned that "[f]ailure to maintain
an effective locked fence in accordance with Section 73.49 of the
Rules constitutes a serious public safety issue because it exposes the
public to hazardous electrical charge."^ Section 73.1 of the Rules
states that "[t]his subpart contains those rules which apply
exclusively to the AM broadcast service."^ This means that the fencing
requirements contained in Section 73.49 of the Rules applies to AM
licensees, not antenna structure owners.^ Part 17 of the Rules sets
out the requirements for antenna structure owners.^ In this instance,
the responsibility for complying with the fencing requirements of
Section 73.49 of the Rules applies to Birach, not the antenna
A. Good Faith Penalty Reductions Apply to Corrective Actions Begun Prior
to Notification of a Violation
7. Birach requests reduction of the proposed forfeiture, arguing that
even though it does not own the towers, it made good faith efforts to
repair the fence and have the lists reassembled and placed in the
public inspection file immediately after receiving notice of the
violations from the Detroit Office.^ While the Commission will
generally reduce an assessed forfeiture based on the good faith
corrective efforts of a violator, those corrective efforts must be
taken prior to notification of the violation.^ As the Commission has
repeatedly stated, "corrective action taken to come into compliance
with Commission rules or policy is expected, and does not nullify or
mitigate any prior forfeitures or violations."^ Consequently, we have
reduced proposed forfeitures when a licensee demonstrates that it
contracted to resolve a violation prior to inspection.^ Birach has
presented no evidence that it undertook efforts to include the lists
in its public inspection file prior to being contacted by the Detroit
Office during the inspection. We therefore decline to reduce the
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act,^ and Section 1.80 of the Rules,^ Birach Broadcasting Corporation,
IS LIABLE FOR A MONETARY 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.^
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 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.^
10. 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. Birach Broadcasting Corporation, shall send
electronic notification of payment to NER-Response@fcc.gov on the date
said payment is made. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the 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 that should be
followed based on the form of payment selected:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with
completed Form 159) must be mailed to the 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 From 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.
11. 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, SW,
Room 1-A625, Washington, D.C. 20554.^ Questions regarding payment
procedures should be directed to the Financial Operations Group Help
Desk by telephone, 1-877-480-3201, or by e-mail,
12. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by first class mail and certified mail, return receipt requested,
to Birach Broadcasting Corporation at 21700 Northwestern Highway,
Tower 14, Southfield, Michigan 48075, and to John C. Trent, Counsel
for Birach Broadcasting Corporation, at Law Offices of Putbrese
Hunsaker & Trent, P.C., 200 South Church Street, Woodstock, Virginia
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
^ 47 C.F.R. SS 73.49 and 73.3526(e)(12).
^ The NAL includes a more complete discussion of the facts and history of
this case and is incorporated herein by reference. Birach Broadcasting
Corporation NAL, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd
5827, 5827-28, paras. 2-4 (Enf. Bur. 2012).
^ 47 C.F.R. SS 73.49, 73.3526(e)(12), 73.3526(c)(1).
^ See Birach Broadcasting Corporation Response to Notice of Apparent
Liability (June 29, 2012) (on file in EB-FIELDNER-12-00004564) (NAL
^ See NAL Response at 2 (Birach notes that the towers and associated real
estate are owned by Guy B. Pickhover, not Birach).
^ NAL Response at 3.
^ 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) (Forfeiture Policy Statement), recons.
denied, Memorandum Opinion and Order, 15 FCC Rcd 303 (1999).
^ 47 U.S.C. S 503(b)(2)(E).
^ NAL Response at 2.
^ Review of Technical and Operational Regulations, 51 Fed. Reg. 2707 (Jan.
^ Greenwood Acres Baptist Church, Memorandum Opinion and Order, 22 FCC Rcd
1442, 1445, para. 10 (Enf. Bur. 2007); see Pilgrim Commc'ns, Inc.,
Forfeiture Order, 19 FCC Rcd. 12251, 12252, para. 6 (Enf. Bur. 2004)
("Effective base fencing is an important safety requirement to prevent
physical contact with the . . . antenna structure.").
^ 47 C.F.R. S 73.1.
^ 47 C.F.R. S 73.49.
^ See 47 C.F.R. SS 17.1 et seq.
^ See WSMN Broadcasting, LLC, 21 FCC Rcd 11251 (Enf. Bur. 2006)
("responsibility for complying with Section 73.49 of the Rules does not
shift to the antenna structure owner in cases where the licensee and the
antenna structure owner are different entities . . . the licensee always
remains the party responsible for complying with the AM fencing
^ NAL Response at 2-3.
^ See, e.g., Sutro Corp., Memorandum Opinion and Order, 19 FCC Rcd 15274,
15277, para. 10 (2004) (stating that the Commission will generally reduce
a forfeiture "based on the good faith corrective efforts of a violator
when those corrective efforts were taken prior to Commission notification
of the violation"); Catholic Radio Network of Loveland, Inc., Forfeiture
Order, 29 FCC Rcd 121, 122-23, para. 5 (Enf. Bur. 2014) ("The Commission
will generally reduce an assessed forfeiture based on the good faith
corrective efforts of a violator when those corrective efforts were taken
prior to Commission notification of the violation.") (emphasis in
original); Argos Net, Inc., Forfeiture Order, 28 FCC Rcd 1126, 1127, para.
4 (Enf. Bur. 2013) ("[C]orrective action taken after notification or
inspection by the Commission does not mitigate the violation . . . .").
^ See, e.g., Seawest Yacht Brokers, Notice of Forfeiture, 9 FCC Rcd 6099,
6099, para. 7 (1994) (citations omitted); Exec. Broad. Corp., 3 FCC 2d
699, 700, para. 6 (1966) ("The fact that prompt corrective action was
taken . . . does not excuse the prior violations.").
^ See, e.g., Bold Gold Media WBS, L.P., Forfeiture Order, 29 FCC Rcd 6016
(Enf. Bur. 2014) (reducing proposed forfeiture where licensee contracted
to acquire required Emergency Alert System equipment prior to inspection).
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 1.80, 73.49, 73.3526(c)(1),
^ 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.
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Federal Communications Commission DA 15-183
Federal Communications Commission DA 15-183