####  Before the 

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-02-NF-051

Madison Broadcasting Group, Inc. )

Danboro, Pennsylvania ) NAL/Acct. No. 20023264002

)

) FRN 0006-1449-50

)

## 

## [FORFEITURE ORDER]{.underline}

**Adopted: August 14, 2002 Released: August 19, 2002**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1\. In this *Forfeiture Order* ("*Order*"), we issue a monetary
forfeiture in the amount of twelve thousand dollars (\$12,000), to
Madison Broadcasting Group, Inc. ("Madison"), owner of five antenna
structures in Lynchburg, Virginia (antenna structure registration
numbers 1065920, 1065921, 1065922, 1065923, and 1065924) for willful
violation of Sections 17.4(g) and 17.50 of the Commission's Rules
("Rules").[^1] The noted violations involve Madison's failure to post
its antenna structure registration ("ASR") numbers and its failure to
maintain specified painting on its five antenna structures in Lynchburg,
Virginia.

2\. On April 29, 2002, the Commission\'s Norfolk, Virginia Resident
Agent's Office ("Norfolk Office") issued a *Notice of Apparent Liability
for Forfeiture* ("*NAL*")[^2] in the amount of twelve thousand dollars
(\$12,000) to Madison. Madison filed an initial response on May 15,
2002. Madison filed a supplemental response on May 17, 2002.

**II.** **BACKGROUND**

3.  On February 28, 2002, a Commission agent from the Norfolk Office
    inspected Madison's five antenna structures, which were used as an
    antenna array for station WLVA(AM), a Lynchburg, Virginia station
    licensed to Madison. The agent observed that none of the five
    antenna structures had the ASR numbers posted on or near the base of
    the structures. The agent also observed that the requisite painting
    on each antenna structure was faded and chipped such that it failed
    to provide good visibility. On April 29, 2002, the Norfolk Office
    issued a *NAL* for \$12,000 to Madison for violating Sections
    17.4(g) and 17.50 of the Rules.[^3] In its first response filed on
    May 15, 2002, Madison claims, through its accountant, that the
    violations were not willful and that it is unable to pay the
    forfeiture. In its supplemental response, filed on May 17, 2002,
    Madison's president claims that he was unaware that the towers
    required painting and that the ASR numbers were not posted. Thus,
    Madison asserts that any such violations could not have been
    willful. Further, Madison states that WLVA(AM) is silent, with
    Commission authorization; that an application has been filed to
    assign the license for WLVA(AM);[^4] and that the towers at issue
    have been dismantled, correcting the violation. In neither response
    does Madison dispute the violations.

### III. DISCUSSION

III. 4\. The forfeiture amount in this case was assessed in accordance
     with Section 503(b) of the Communications Act of 1934, as amended
     ("Act"),[^5] Section 1.80 of the Rules,[^6] and *The Commission's
     Forfeiture Policy Statement and Amendment of Section 1.80 of the
     Rules to Incorporate the Forfeiture Guidelines*, 12 FCC Rcd 17087
     (1997), *recon. denied*, 15 FCC Rcd 303 (1999). In examining
     Madison's response, Section 503(b) 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.[^7]

     5\. Section 17.4(g) of the Rules requires that ASR numbers be
     displayed in a conspicuous place so that they are readily visible
     near the base of the antenna structure. Section 17.50 of the Rules
     provides that antenna structures requiring painting under the Rules
     shall be cleaned or repainted as often as necessary to maintain
     good visibility. Madison does not deny that the violations alleged
     in the *NAL* occurred. Therefore, based on the evidence before us,
     we find that Madison failed to post ASR numbers on the five antenna
     structures in willful violation of Section 17.4(g) of the Rules and
     failed to clean and/or paint the five antenna structures as often
     as necessary to maintain good visibility in willful violation of
     Section 17.50 of the Rules.

     6\. Madison's president claims that no one ever told him that the
     towers required painting or that the ASR numbers were not posted.
     Further, Madison's president asserts that since he is the only
     officer and director of the corporation and since he had no
     knowledge of the alleged violations, such violations could not have
     been willful. We disagree. Section 312(f)(1) of the Act provides
     that "the term 'willful,' when used with reference to the
     commission or omission of any act, means the conscious or
     deliberate commission or omission of such act, irrespective of any
     intent to violate any provision of this Act or any rule or
     regulation of the Commission ...."[^8] This definition applies to
     the term "willful" as used in Section 503(b) of the Act. *See
     Southern California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).
     Section 17.4(g) requires tower owners to take affirmative steps to
     post ASR numbers so that they are readily visible near the base of
     antenna structures and Section 17.50 requires owners to take steps
     to ensure that antenna structures are cleaned and repainted as
     often as necessary to maintain good visibility. A tower owner which
     fails to take such steps is in willful violation of these rules.
     While Madison's president claims that no one ever told him that the
     towers required painting or that the ASR numbers were not posted,
     Section 17.6(a) of the Rules[^9] explicitly states that the antenna
     structure owner is responsible for maintaining the painting and
     lighting required by the rules. Moreover, licensees are expected to
     know and comply with the Commission's rules.[^10] Thus, Madison, as
     the antenna structure owner and the licensee of WLVA(AM), was
     responsible for insuring that the tower was properly painted and
     lighted and its violations were willful under Section 503(b) of the
     Act. Madison also asserts that because the five antenna structures
     at issue here have been dismantled,[^11] the violations have been
     corrected. We note that remedial actions taken to correct the
     violations, while commendable, are not mitigating factors.[^12]

     7\. Madison also claims, through its accountant, that it has no
     means from which to pay the proposed forfeiture amount of \$12,000.
     In support of this contention, Madison submitted only the
     accountant's statement explaining Madison's financial situation and
     concluding that Madison has no means of making payment. The
     accountant's statement does not include any information regarding
     Madison's income. As the *NAL* stated, the Commission will not
     consider reducing or canceling a forfeiture in response to a claim
     of inability to pay unless the petitioner submits documentation
     that accurately reflects the petitioner's current financial status.
     Madison has not presented sufficient documentation to enable us to
     evaluate its current financial condition; therefore, we can not
     accept its claim that it is financially unable to pay the
     forfeiture.[^13]

####  IV. ORDERING CLAUSES

8\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Act and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^14] Madison
Broadcasting Group, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the
amount of twelve thousand dollars (\$12,000) for willfully violating
Sections 17.4(g) and 17.50 of the Rules.

9\. Payment of the forfeiture shall be made in the manner provided for
in Section 1.80 of the Rules within 30 days of the release of this
*Order*. If the forfeiture is not paid within the period specified, the
case may be referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.[^15] Payment shall be made by
mailing a check or similar instrument, payable to the order of the
"Federal Communications Commission," to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should note NAL/Acct. No. 20023264002, and FRN 0006-1449-50. Requests
for full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.[^16]

10\. IT IS FURTHER ORDERED that, a copy of this *Order* shall be sent by
Certified Mail Return Receipt Requested to Madison Broadcasting Group,
Inc. at P.O. Box 50, Danboro, Pennsylvania 18947, and its counsel Lauren
A. Colby, Esq., P.O. Box 113, Frederick, Maryland 21705-0113.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ 47 C.F.R. §§ 17.4(g) and 17.50.

[^2]: ^?^ *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    20023264002 (Enf. Bur., Norfolk Office, released April 29, 2002).

[^3]: The *NAL* found violations of Sections 17.4(g) and 17.50 at each
    of Madison's five antenna structures. Nevertheless, because the
    structures were part of a five-tower array, the *NAL* proposed only
    a \$10,000 forfeiture (the base forfeiture amount for a single tower
    painting violation) for the five painting violations and a \$2,000
    forfeiture (the base forfeiture amount for a single posting
    violation) for the five posting violations.

[^4]: The assignment of license for Station WLVA(AM) from Madison
    Broadcasting Group, Inc. to Kovas Communications was granted on May
    17, 2002 and consummated on June 7, 2002.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 47 U.S.C. § 312(f)(1).

[^9]: 47 C.F.R. § 17.6(a).

[^10]: *See Econopage of Cleveland, Inc.*, 16 FCC Rcd 2989, 2990 (Enf.
    Bur. 2001).

[^11]: Although Madison states that the towers have been dismantled,
    Commission records show that the towers have not been de-registered.

[^12]: *See, e.g., Puerto Rico Tower Co., Inc.*, 16 FCC Rcd 271, 273
    (Enf. Bur. 2001).

[^13]: *See*, *e.g.*, *KASA Radio Hogar, Inc.*, 16 FCC Rcd 11934, 11935
    (Enf. Bur. 2001), *recon. denied*, 16 FCC Rcd 16160 (Enf. Bur.
    2001), *application for review denied*, 17 FCC Rcd 6256 (2002).

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^15]: ^?^ 47 U.S.C. § 504(a).

[^16]: ^?^ *See* 47 C.F.R. § 1.1914.