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                                   Before the

                       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




                                FORFEITURE ORDER

   Adopted: February 9, 2015 Released: February 9, 2015

   By the Regional Director, Northeast Region, Enforcement Bureau:

   I. INTRODUCTION

    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.

   II. BACKGROUND

    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.^

   III. DISCUSSION

    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
       structure owner.^

     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
       proposed forfeiture.

   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,
       [1]ARINQUIRIES@fcc.gov.

   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
       22664.

   FEDERAL COMMUNICATIONS COMMISSION

   G. Michael Moffitt

   Regional Director, Northeast Region

   Enforcement Bureau

   ^ 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
   Response).

   ^ 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.

   ^ Id.

   ^ 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.
   21, 1986).

   ^ 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
   requirements.")

   ^ 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),
   73.3526(e)12.

   ^ Id.

   ^ 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 15-183

                                       2

   Federal Communications Commission DA 15-183

References

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