**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

4M of Richmond, Inc., Licensee of WLEE ) File No. EB-02-NF-124

4M Communications, Inc., Owner of Antenna )

Structure #1231421 ) NAL/Acct. No. 200332640001

Richmond, Virginia )

) FRN3782182

## FORFEITURE ORDER 

**Adopted: August 11, 2004 Released: August 13, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture of six thousand six hundred dollars (\$6,600) to 4M of
    Richmond, Inc. ("4M of Richmond") for willful violation of Section
    73.49 of the Commission\'s Rules ("Rules") and for willful and
    repeated violation of Section 73.1745(a) of the Rules.[^1]
    Additionally, we issue a monetary forfeiture of eight thousand
    dollars (\$8,000) against 4M Communications, Inc. ("4M
    Communications") for willful violation of Section 17.50 of the
    Rules, for a total forfeiture amount of fourteen thousand six
    hundred dollars (\$14,600). The noted violations involve 4M of
    Richmond's failure to enclose its tower with an effective locked
    fence (§ 73.49) and exceeding its nighttime power limit (§ 73.1745),
    and 4M Communications' failure to comply with the prescribed antenna
    structure marking (§ 17.50).

2.  On November 4, 2002, the Commission's Norfolk, Virginia, Resident
    Agent Office ("Norfolk Office") issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") to 4M of Richmond and 4M
    Communications ("the 4M companies") for a forfeiture in the amount
    of twenty-one thousand dollars (\$21,000).[^2] The 4M companies
    jointly responded to the *NAL* on December 3, 2002.

#### II. BACKGROUND

3.  4M of Richmond is the licensee of AM station WLEE, Richmond,
    Virginia. WLEE is licensed to transmit with a daytime power of 1,000
    watts and a nighttime power of 13 watts. 4M Communications owns that
    station's antenna structure (#1231421), which is located at 2516
    Inman Avenue, Richmond, Virginia. The Commission's Antenna Structure
    Registration ("ASR") database lists the structure's height as 75.6
    meters above ground level and prescribes lighting and painting
    requirements. The same principals control both 4M of Richmond and 4M
    Communications.

4.  On August 19, 2002, an agent from the Norfolk Office inspected
    WLEE's transmitter site. At about 1:30 p.m., the agent observed that
    the fencing around the base of WLEE's tower had no lock. He also
    observed that the antenna structure's paint was so chipped and faded
    that the contrasting color bands were difficult to distinguish from
    less than one-quarter of a mile away, resulting in poor visibility
    of the antenna structure.

5.  After sunset on August 19, 2002, the agent observed WLEE's antenna
    base current meter, which measured the current supplied to WLEE's
    antenna tower, and calculated that WLEE's power exceeded the
    station's authorized nighttime power of 13 watts. On August 20,
    2002, the agent inspected a portion of WLEE's logs for August 17, 18
    and 19, 2002. Those logs noted that the use of power between sunset
    and sunrise on August 17, 18 and 19, 2002, exceeded WLEE's
    authorized nighttime power of 13 watts on each of those evenings
    with, respectively, readings of 37 watts, 945 watts and 37 watts.

6.  Based on the agent's observations, on November 4, 2002, the Norfolk
    Office issued a *NAL* to 4M of Richmond and 4M Communications for a
    total forfeiture in the amount of \$21,000 for willful violation of
    Sections 73.49 (\$7,000) and 17.50 (\$10,000) of the Rules and for
    willful and repeated violation of Section 73.1745(a) (\$4,000) of
    the Rules. In the joint response, filed December 3, 2002, the 4M
    companies seek reduction or cancellation of the proposed forfeiture.
    As to Section 73.49, the 4M companies admit that the fence around
    the base of WLEE's tower was not locked but argue that this was a
    minor violation because it existed for only four days before it was
    corrected. With regard to Section 17.50, the 4M companies argue that
    its observations and those of the contractor who repainted WLEE's
    tower on October 13, 2002, indicate that the tower did not need
    repainting and that the Commission has not provided photographic
    evidence of the need for repainting WLEE's tower.

7.  With respect to Section 73.1745(a), the 4M companies assert that
    WLEE's antenna base current meter had been removed for repairs and
    recalibration and was reinstalled just before the FCC agent read it.
    The 4M companies argue that if there was a violation of Section
    73.1745(a), it was minor and unintentional, that there were no field
    strength measurements taken, that there were no complaints of
    interference from WLEE's operation and that the determination that
    WLEE's power exceeded the authorized level by 26 watts was "within
    the margin of error." Additionally, the 4M companies argue that the
    power measurements reported in WLEE's station logs are not reliable
    because "with a transmitter designed to operate at 1,000 watts, it
    is technically difficult to obtain accurate readings at low output
    levels in the range of 13 watts."

8.  The 4M companies also argue that they have a history of overall
    compliance and that, by cooperating with the FCC agent, they acted
    in good faith. The 4M companies argue further that any violations
    were "minor, inadvertent, unintentional and promptly corrected." In
    addition, the 4M companies assert that they are "a small,
    independent broadcaster" and that the Commission "should not
    discourage companies like 4M whose successful efforts to save
    troubled AM stations and bring new programming choices to listeners
    have served the public interest."

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III. **DISCUSSION**

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9.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^3] Section 1.80 of the Rules,[^4] 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) ("*Policy
    Statement*"). Section 503(b) of the Act requires that the
    Commission, in examining the 4M companies' response, 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.[^5]

10. Section 73.49 of the Rules provides that antenna structures that
    have radio frequency potential (voltage) at the base of the tower
    must be enclosed within an effective locked fence to protect the
    public. The 4M companies admit that the gate to the fence around the
    antenna structure was not locked as a result of the intentional act
    of a 4M agent to cut the lock, but argue that this violation was
    minor because it lasted for only four days. We do not agree that its
    duration of "only" four days makes the fencing violation "minor"
    when the public's safety and possibility of contact with the
    radiating antenna structure is involved.[^6] We find that 4M of
    Richmond willfully[^7] violated Section 73.49.

11. Section 17.50 of the Rules provides that antenna structures
    requiring painting shall be cleaned or repainted as often as
    necessary to maintain good visibility. To determine compliance with
    Section 17.50, we rely primarily on the investigating agent's
    observations and judgment rather than on photographic evidence. The
    4M companies contend that their observations and those of the
    contractor who repainted WLEE's tower indicate that prior to the
    contractor's painting of the tower, the tower did not need
    repainting. The FCC agent's observations and judgment at the time of
    his inspection indicate that the tower's paint was so chipped and
    faded that the contrasting color bands were difficult to distinguish
    from less than one-quarter of a mile away. We find, based on the
    agent's observations, that 4M Communications violated Section 17.50
    of the Rules,[^8] and that the one sentence statement to the
    contrary by 4M Communications' contractor does not override this
    conclusion. Further, the condition of the antenna structure's paint
    was plainly visible. After reviewing the facts of this case, we find
    that 4M Communications' violation of Section 17.50 was willful.

12. Section 73.1745(a) of the Rules prohibits broadcast licensees from
    operating with power other than that specified by their licenses.
    WLEE is licensed to operate with a power of 1,000 watts during the
    day and a power of 13 watts between sunset and sunrise. After sunset
    on August 19, 2002, the FCC agent \-- using a current meter which
    WLEE's contract engineer had just reinstalled \-- measured the
    current supplied to WLEE's antenna and calculated that WLEE was
    operating with a power of 39 watts. The 4M companies make several
    arguments. First, 4M Companies claim that the FCC agent measured the
    current to WLEE's antenna "without allowing \[WLEE's contract
    engineer\] to readjust the transmitter to reflect the recalibration
    \[of the current meter\]." We agree that the agent measured the
    current meter before the contract engineer could readjust the
    transmitter power; this was necessary in order to accurately
    determine the station's power prior to 4M of Richmond's readjusting
    the transmitter power. The point here is not that 4M of Richmond
    could have adjusted the power to its licensed parameters, if given
    the chance, but rather that 4M of Richmond was operating in excess
    of those parameters. Next, the 4M companies claim that the power
    violation was "minor" and "within the margin of error" because
    WLEE's power was only 26 watts above the authorized level, and that
    the power measurements reported in WLEE's station logs were not
    reliable because "with a transmitter designed to operate at 1,000
    watts, it is technically difficult to obtain accurate readings at
    low output levels in the range of 13 watts." However, when the FCC
    agent inspected the logs, he found that WLEE was in operation with
    as much as 945 watts after sunset on August 18, 2002, and as much as
    940 watts before sunrise on August 19, 2002. Due to WLEE's operation
    at near daytime power, levels significantly above the FCC authorized
    nighttime level of 13 watts on the evening of August 18 and the
    morning of August 19, as well as the operation of WLEE at 39 watts
    on the evening of August 19 (300% of the authorized power), this is
    not a minor violation.[^9] Further, the claim that the power
    measurements reported in WLEE's station logs are not reliable at
    readings near 37 watts because its full scale range is 1000 watts is
    contradicted by readings of 945 and 940 watts obtained,
    respectively, on the evening of August 18, 2002, and the morning of
    August 19, 2002.[^10] Further, WLEE was responsible for assuring
    that the power meter readings were accurate.[^11] The 4M companies'
    third contention, that there were no field strength measurements, is
    incorrect; the FCC agent did take field strength measurements which
    confirm that WLEE was operating after sunset on August 19, 2002,
    with power exceeding 13 watts. Finally, because 4M of Richmond's
    operation exceeded the authorized power, the violation is not
    mitigated by any lack of complaints about the effects of 4M of
    Richmond's overpower operation.[^12] We find that 4M of Richmond
    willfully and repeatedly[^13] violated Section 73.1745(a) of the
    Rules,[^14] with an excess of power at night on August 18, and 19,
    2002.

13. We do not agree with 4M companies' assertion that any violations
    were "inadvertent" or "unintentional." As indicated above, an agent
    of the 4M companies intentionally caused the violation of Section
    73.49 of the Rules by cutting the lock on the gate to the enclosure
    around WLEE's antenna structure. The 4M companies' lack of intent to
    violate the rules does not excuse or mitigate its violations of the
    Rules. Section 503(b)(1)(B) of the Act provides that any person who
    "willfully or repeatedly" fails to comply with any provision of the
    Act or any rule, regulation or order issued by the Commission under
    the Act "shall be liable to the United States for a forfeiture
    penalty."[^15] In this context, "willful" simply means the conscious
    and deliberate commission or omission of an act, *irrespective of
    any intent* to violate statutory or regulatory requirements.[^16]
    Thus, we conclude that no reduction or cancellation of the proposed
    forfeiture is warranted on the basis of 4M companies' lack of intent
    or inadvertence.

14. No mitigation is warranted on the basis that the 4M companies are "a
    small, independent broadcaster."[^17] The Commission takes the size
    of a business into account by considering its ability to pay a
    monetary forfeiture.[^18] As explicitly stated in the *NAL*, we 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
    practices (\"GAAP\"); or (3) some other reliable and objective
    documentation that accurately reflects the petitioner\'s current
    financial status. The 4M companies have not provided any financial
    documentation to support a claim of inability to pay; therefore, we
    have no basis to reduce the forfeiture on grounds of inability to
    pay. [^19]

15. Because we expect cooperation during an FCC investigation, no
    mitigation is warranted on the basis that the 4M companies acted in
    good faith by cooperating with the FCC agent or by 4M Communications
    having the tower painted after the FCC agent so advised 4M
    Communications. We do, however, find that 4M of Richmond acted in
    good faith by correcting the fencing violation before being notified
    of that violation and are reducing that portion of the proposed
    forfeiture for 4M of Richmond's violation of Section 73.49 of the
    Rules by \$1,400. We also find that 4M of Richmond acted in good
    faith when it was attempting to install the repaired and
    recalibrated antenna base current meter during the FCC agent's
    inspection, and are reducing that portion of the proposed forfeiture
    for 4M of Richmond's violation of Section 73.1745(a) of the Rules by
    \$800.

16. While the 4M companies' "successful efforts to save troubled AM
    stations" are commendable, we find that no mitigation is warranted
    on that basis. We do, however, find that the 4M companies have a
    history of overall compliance and, accordingly, we find that the
    forfeiture proposed against 4M of Richmond should be further reduced
    by \$2,200 and that the forfeiture proposed against 4M
    Communications should be reduced by \$2,000.

17. We have examined the 4M companies' response to the *NAL* pursuant to
    the statutory factors above, and in conjunction with the *Policy
    Statement* as well.[^20] As a result of our review, we conclude that
    4M of Richmond willfully violated Section 73.49 of the Rules and
    willfully and repeatedly violated violations of Section 73.1745(a)
    of the Rules; and that 4M Communications willfully violated Section
    17.50 of the Rules. We find that the proposed forfeitures against 4M
    of Richmond and 4M Communications should be reduced to the amounts
    indicated above.

    **IV. ORDERING CLAUSES**

18. 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,[^21]
    4M of Richmond **IS LIABLE FOR A MONETARY FORFEITURE** in the amount
    of six thousand six hundred dollars (\$6,600) for willful violation
    of Section 73.49 of the Rules and for willful and repeated
    violations of Section 73.1745(a) of the Rules.

19. **IT FURTHER IS ORDERED** that 4M Communications **IS LIABLE FOR A
    MONETARY FORFEITURE** in the amount of eight thousand dollars
    (\$8,000) for willful violation of Section 17.50 of the Rules. The
    total amount for these forfeitures is fourteen thousand six hundred
    dollars (\$14,600).

20. 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.[^22] Payment may 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 reference NAL/Acct. No. 200332640001 and FRN 3782182.
    Requests for full payment under an installment plan should be sent
    to: Chief, Revenue and Receivables Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^23]

21. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to 4M of
    Richmond, Inc., and 4M Communications, Inc., 308 Broad Street,
    Richmond, Virginia 23220.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 73.49, 73.1745(a) and 17.50.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332640001 (Enf. Bur., Norfolk Office, released November 4, 2002).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: *See, e.g., FBS Wireless Corporation,* 18 FCC Rcd 21018 (Enf. Bur.
    2003); *Truth Broadcasting Corporation,* 17 FCC Rcd 24376 (Enf. Bur.
    2002).

[^7]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that "\[t\]he term 'willful,' ... means
    the conscious and 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 authorized by this Act
    ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^8]: *See Access.1 Communications Corp.-NY,* 18 FCC Rcd 22289, 22291 at
    fn 8 (Enf. Bur. 2003). The 4M companies argue that there is an
    insufficient evidentiary record to find a violation of Section 17.50
    of the Rules, citing *Beacon Broadcasting, Inc.,* 17 FCC Rcd 22839
    (Enf. Bur. 2002). We can find nothing in that case which supports
    the view that there is an insufficient evidentiary record to
    establish a violation of Section 17.50. In *Beacon,* the tower owner
    did not challenge the FCC's evidentiary findings but sought
    cancellation or reduction of a proposed \$15,000 forfeiture for
    several violations, including Section 17.50, on the basis of its
    recent acquisition of the tower, its remedial efforts and its
    inability to pay the forfeiture; we determined that neither
    cancellation nor reduction of the proposed forfeiture was warranted.
    If the 4M companies are implying that the evidence for a violation
    of Section 17.50 in this proceeding is deficient because it differs
    from the evidence supporting the violation of that section in
    *Beacon,* we point out that each case should be examined on its own
    merits. *See James R. Weaks,* 48 FCC 2d 273 (ALJ 1974).

[^9]: AM stations must not operate with over 105% of authorized power no
    matter the mode of operation. *See* 47 C.F.R. § 73.1560.

[^10]: This argument does apply to the readings (37 watts) recorded for
    the evenings of August 17 and 19, 2002. However, we need not address
    it for those dates because a Commission measurement (39 watts)
    establishes overpower operation on the evening of August 19, 2002,
    and it is unnecessary to establish an overpower violation on August
    17, 2002.

[^11]: AM stations are allowed to operate without a current meter for up
    to 60 days provided the station can determine operating power. *See*
    47 C.F.R. §§ 73.51 and 73.58.

[^12]: In *PJB Communications of Virginia, Inc.* (7 FCC Rcd 2088, 2088
    (1992)), the Commission did not downwardly adjust a forfeiture based
    on wireless carrier's claims that its rule violation \[failure to
    file required notifications to maintain authorized operation of
    one-way paging facilities\] did not adversely affect the public. The
    Commission explained that licensees have a duty to operate in
    accordance with Commission rules, and cannot absolve themselves of
    the failure to do by simply claiming that there was no harm done to
    the public. The Commission maintained that there is an independent
    public interest in licensees complying with the rules. *Id*.

[^13]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The *Conference
    Report* for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^14]: The 4M companies contend that the Enforcement Bureau has not met
    its burden of proving that 4M of Richmond willfully and repeatedly
    violated Section 73.1745(a) of the Rules, citing *Tarrant Radio
    Broadcasting, Inc.,* 17 FCC Rcd 16761 (Enf. Bur. 2002) and *Sycamore
    Valley Broadcasting, Inc.,* 17 FCC Rcd 15843 (Enf. Bur. 2002). While
    *Tarrant* and *Sycamore* involve facts similar to those of the
    instant case, we can find nothing in *Tarrant* and *Sycamore* which
    supports the view that the Enforcement Bureau has not met its burden
    of proof in this case. In *Tarrant*, we reduced the proposed \$4,000
    forfeiture by \$1,000 due to a history of overall compliance, and in
    *Sycamore*, we determined there were no factors justifying a
    reduction of the proposed forfeiture amount.

[^15]: 47 U.S.C. § 503(b)(1)(B).

[^16]: *Supra,* note 7.

[^17]: *See Forfeiture Policy Statement,* at 17109 ¶¶ 51-52 (finding
    that the Commission's forfeiture policies and precedent are
    consistent with the requirements of Section 223 of the Small
    Business Regulatory Enforcement Fairness Act of 1996, Pub. L.
    104-121, 110 Stat. 847 (1996), because the agency considers, among
    other factors, inability to pay, good faith efforts, participation
    in alternative compliance programs, in assessing forfeitures).

[^18]: *See, e.g., Jerry Szoka,* 14 FCC Rcd 20147,20150 ¶¶ 9-10 (1999);
    *Bay Broadcasting Corp.,* 15 FCC Rcd 13613, 13615-16 ¶¶ 8-9 (Enf.
    Bur. 2000) *Merichem Sasol LLC,* 15 FCC Rcd  8450, 18452 ¶ 4  (WTB
    1999) .

[^19]: The Commission has determined that, in general, gross revenues
    are the best indicator of the ability to pay a forfeiture. *See PJB
    Communications of Virginia, Inc.,* 7 FCC Rcd 2088, 2089 (1992).

[^20]: The 4M companies cite *Radio One Licenses, Inc.,* as authority
    for reducing the proposed forfeiture on the basis of minor
    violation, good faith and history of overall compliance. *See Radio
    One Licenses, Inc.*, 16 FCC Rcd 15326 (Enf. Bur. 2001); *recon.
    den.,* 17 FCC Rcd 1724 (Enf. Bur. 2002); *recon. granted in part and
    denied in part,* 17 FCC Rcd 20408 (Enf. Bur. 2002); *application for
    review granted in part and denied in part*, 18 FCC Rcd 15964 (2003);
    *recon. den.*, 18 FCC Rcd 25481 (2003). In the instant case, we
    considered reducing the proposed forfeiture in paragraphs 13-17
    above and found that a reduction is warranted on the basis of a
    history of overall compliance and good faith. We have examined the
    *Radio One* orders and find nothing which supports a different
    result. *Radio One* involved a monetary forfeiture originally
    imposed for willful violation of the following Rules: 11.35(a)
    (failure to have operational Emergency Alert System ("EAS")
    equipment); 73.1125(e) (failure to establish a local or toll-free
    telephone number in the community of license); 73.1350(c)(1)
    (failure to establish monitoring procedures to determine compliance
    with Section 73.1560 regarding operating power); 73.1800(a) (failure
    to maintain a station log); and 73.3526(a)(2) (failure to maintain a
    public inspection file). In a series of rulings, the Enforcement
    Bureau and the Commission reduced the originally proposed monetary
    forfeiture of \$22,000 to \$8,000 on the basis that Radio One did
    maintain a public inspection file and had a history of overall
    compliance.

[^21]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^22]: 47 U.S.C. § 504(a).

[^23]: *See* 47 C.F.R. § 1.1914.