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Federal Communications Commission
Washington, DC 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.: 201432400005
Facility ID No.: 71510
Adopted: June 16, 2015 Released: June 16, 2015
By the Regional Director, Northeast Region, Enforcement Bureau:
We impose a penalty of $7,000 against Sound Communications, LLC (Sound Communications) for failing to enclose its antenna structure for AM Station WENY within an effective locked fence. The Commission's fencing rules protect the public by limiting access to areas with a high potential for radio frequency exposure. Sound Communications does not deny that its antenna structure was not properly enclosed, but argues that the proposed penalty must be cancelled because its violation was neither willful nor repeated. However, Sound Communications admits that it left its antenna structure fencing gate unlocked and the gate remained unlocked for several days. As a result, we find no reason to cancel, withdraw, or reduce the proposed penalty, and we therefore assess the $7,000 forfeiture the Enforcement Bureau previously proposed.
On July 11, 2013, an agent from the Philadelphia Office of the Enforcement Bureau (Bureau) observed that the padlock for the antenna fencing gate for AM Station WENY was unlocked, allowing unrestricted access to the antenna structure. In response to a Notice of Violation, Sound Communications stated that its station engineer deliberately left the fencing gate unlocked on July 5, 2013, to allow personnel from a tower repair company to access the site in order to finalize a bid for a tower repair project.
On June 2, 2014, the Bureau issued the NAL proposing a $7,000 forfeiture against Sound Communications for apparently willfully and repeatedly violating Section 73.49 of the Commission's rules (Rules) by failing to enclose its antenna structure for AM Station WENY within an effective locked fence or other enclosure. In its NAL Response, Sound Communications again admits that it left the fencing gate unlocked on July 5, 2013 to permit a repair company to access the site and did not relock the gate until after being contacted by a Bureau agent on July 12, 2013. However, Sound Communications argues that the proposed forfeiture should be vacated because its failure to lock the gate was not "willful," but rather the result of its "inadvertent error to have incorrectly assumed that the tower crew would lock the fence around the Tower following departure." Sound Communications also argues that its failure to lock the fencing gate was not "repeated" because it took immediate action to lock the fencing gate after receiving notice from the Bureau agent on July 12, 2013.
The Bureau proposed a forfeiture in this case in accordance with Section 503(b) of the Communications Act of 1934, as amended (Act), Section 1.80 of the Rules, and the Commission's Forfeiture Policy Statement. When we assess forfeitures, Section 503(b)(2)(E) of the Act 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 Sound Communication's NAL Response, but find none of its arguments persuasive. We therefore affirm the $7,000 forfeiture proposed in the NAL.
We affirm the NAL's finding that Sound Communications failure to enclose its antenna structure within an effective locked fence was willful. As Sound Communication's acknowledges in its NAL Response, the Act defines "willful" as the "conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate" the law. Consequently, "[i]t is not necessary that the violation be intentional. All that is necessary is that the licensee knew it was doing the act in question." Sound Communications does not dispute that it consciously and deliberately left its fencing gate unlocked on July 5, 2013. Such a failure to lock the fencing gate for an antenna structure violates Section 73.49 of the Rules.
Although Sound Communications states that the unlocked fence resulted from its "inadvertent error" in assuming that the repair crew would lock the fencing gate after completing its work, we have repeatedly held that "[i]nadvertent mistakes are not mitigating circumstances that can serve to justify a forfeiture reduction." The fact that Sound Communication incorrectly concluded that the repair crew would lock the fencing gate does not absolve it of liability for its violation. Similarly, the fact that the fencing gate was left unlocked by a third party does not diminish Sound Communications's liability for the violation. Even in cases where an antenna structure fencing violation resulted from extreme weather and other "acts of God" outside of the tower owner's control, we have still assessed penalties. The Commission may cancel a proposed penalty shows that antenna fencing was unlocked or damaged "just prior" to the Commission inspection, but Sound Communications concedes that it left the fence unlocked and did not check to see if the gate was relocked following the repair crew's visit for approximately a week.
Even if we were to accept Sound Communication's argument that its conduct was not willful, it was nevertheless repeated, which provides an independent basis for assessing the forfeiture. The Act defines the term "repeated" as the commission or omission an act "more than once or, if such commission or omission is continuous, for more than one day." As Sound Communication's recognizes in its NAL Response, it unlocked the fencing gate on July 5, 2013, and it remained unlocked until July 12, 2013. A violator does not need to be aware of a violation in order to find the violation repeated. To the extent Sound Communications is suggesting that it deserves a forfeiture reduction in light of its timely efforts to correct the violation, we note that the Commission will generally reduce an assessed forfeiture based on the good faith corrective efforts of a violator only when those corrective efforts are taken prior to Commission notification of the violation. The Commission has made it clear that "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." As a result, we affirm the NAL's finding that Sound Communications failure to enclose its antenna structure within an effective locked fence was repeated.
Based on the record before us and taking into account applicable statutory factors and the Commission's Forfeiture Policy Statement, we find that Sound Communications is liable for a total forfeiture of $7,000.
Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act, and Section 1.80 of the Rules, Sound Communications IS LIABLE FOR A MONETARY FORFEITURE in the amount of seven thousand dollars ($7,000) for willfully and repeatedly violating Section 73.49 of the Rules.
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.
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, LLC, 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.
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, DC 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, ARINQUIRIES@fcc.gov.
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 Sound Communications, LLC at 15 Woodland Way, Painted Post, New York 14870 and to Mark B. Denbo, Esq., Counsel for Sound Communications, LLC, at Smithwick & Belenduik, P.C., 5028 Wisconsin Avenue, N.W., Suite 301, Washington, DC 20016.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt