**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

# Washington, D.C. 20554

In the Matter of )

)

**Culpeper Broadcasting Corporation** ) File No. EB-99-CF-014

WCVA )

Culpeper, VA ) NAL/Acct. No. X3234001

#### NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted:** February 7, 2000 **Released:** February 7, 2000

By the Enforcement Bureau: Columbia Office

# I. [INTRODUCTION]{.underline}

1\. This is a Notice of Apparent Liability for monetary forfeiture
issued pursuant to Section 503(b) of the Communications Act of 1934, as
amended, (the "Act") 47 U.S.C. § 503(b), and Section 1.80 of the
Commission\'s Rules (the "Rules\"), 47 C.F.R. § 1.80, to Culpeper
Broadcasting Corporation, licensee of WCVA, Culpeper, Virginia for
willful violation of Sections 73.49 and 73.1560(a) of the Rules, 47
C.F.R. § 73.49, failure to maintain effective locked fence around the
base of each antenna having radio frequency potential at the base, and §
73.1560(a), failure to maintain power within 90% to 105% of authorized.
The appropriate amount of forfeiture for this violation is determined to
be nine thousand dollars (\$9,000).

# II. [BACKGROUND]{.underline}

2\. Station WCVA, licensed to Culpeper Broadcasting Corporation, was
inspected on November 16, 1999 by Agent James Walker from the
Commission's Columbia, Maryland Field Office. During that inspection, it
was discovered that several vertical boards were missing from the fence
enclosing the base of the antenna tower. When a station staff member was
unable to locate a key to the gate, he swung the hinge side of the gate
away from the fence. His ease in moving the gate and apparent confidence
that it would move, indicated to the inspector that he had prior
knowledge that the gate hinges were not secured to the fence. Each of
these deficiencies would allow relatively easy access to the shunt
excited antenna tower, which has radio frequency potential at the base.

3\. Also during that inspection, it was determined that the station was
operating at 942 watts (138% of the authorized 680 watts). There was a
memo posted on the station's transmitting equipment explaining how to
calculate the power and specifying the authorized power of 680 watts, as
well as the upper and lower limits.

4\. A Notice of Violation was issued on November 23, 1999 detailing
these and other violations noted. In a reply received December 9, 1999,
Culpeper Broadcasting Corporation states that the fence has been
repaired and that operators will be re-trained "to better understand the
significance of the findings after taking the transmitter readings."

# III. [DISCUSSION]{.underline}

5\. Section 73.49 of the Rules requires that antennas having radio
frequency potential at the base be enclosed within an effective locked
fence or other enclosure. Culpeper Broadcasting Corporation failed to
have WCVA\'s antenna enclosed within an effective locked fence or other
enclosure on at least November 16, 1999. The licensee's representative
indicated, by a statement and his actions, a prior knowledge that the
fence was not secure.

6\. Section 73.1560(a) requires that AM broadcast stations maintain the
antenna input power within 90% to 105% of the authorized power. The
presence of clear instructions posted on the transmitting equipment
detailing the limits of the operating power and how to determine it is
evidence that the licensee was aware of the requirement.

7\. Based on the evidence before us, we find that Culpeper Broadcasting
Corporation operated in willful[^1] violation of Sections 73.49 and
73.1560(a) of the Rules. The Commission's [Forfeiture Policy
Statement]{.underline} 12 FCC Rcd 17087 (1997), ("Policy Statement"),
sets the base amounts for these violations at seven thousand dollars
(\$7,000) for the fencing violation and four thousand dollars (\$4,000)
for the operating power violation. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(D) that include 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. Applying the Policy
Statement and statutory factors to the instant case, we believe that a
monetary forfeiture in the amount of nine thousand dollars (\$9,000) is
warranted. This amount reflects a reduction for the violation of section
73.1560(a), overpower, of 50% due to the station's history of
compliance. However, due to the safety issue concerning the lack of
tower base protection, the base amount of seven thousand dollars
(\$7,000) for violation of Section 73.49 is appropriate.

# IV. [ORDERING CLAUSES]{.underline}

8\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Communications Act, 47 U.S.C. § 503(b), and Section 1.80 of the
Commission\'s Rules, 47 C.F.R. § 1.80, Culpeper Broadcasting Corporation
is hereby NOTIFIED of its APPARENTLY LIABILITY FOR A FORFEITURE in the
amount of nine thousand dollars (\$9,000) for violating Sections 73.49
and 73.1560(a) of the Commission's Rules. The amount specified was
determined after consideration of the factors set forth in Section
503(b)(2)(D) of the Act, 47 U.S.C. § 503(b)(2)(D) and the guidelines
enumerated in the Policy Statement.

9\. IT IS FURTHER ORDERED THAT, pursuant to Sections 1.80(f)(3) and (h)
of the Commission\'s Rules, 47 C.F.R. §§ 1.80(f)(3) and (h), within
thirty (30) days of the date of release of this NOTICE OF APPARENT
LIABILITY, Culpeper Broadcasting Corporation SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written response showing why
the forfeiture should be reduced or not imposed. Any written response
must include a detailed factual statement and supporting
documentation.[^2] Forfeitures shall be paid by check, money order, or
credit card, with the appropriate documentation, made payable to the
Federal Communications Commission.[^3] The remittance should be marked
"NAL/Acct. No: X3234001", and mailed to the following address:

##  Federal Communications Commission

P.O. Box 73482

Chicago, IL 60673-7482

Send or mail any written responses regarding the reasons why the
forfeiture should be reduced or not imposed to:[^4]

Office of the Secretary

Federal Communications Commission

445 12th Street, S. W.

Washington, D.C. 20554

ATTN: Enforcement Bureau

Technical and Public Safety Division

Any written response should be marked "NAL/Acct.No: X3234001", and
should focus on the mitigating factors outlined in the Policy Statement
and Section 503 of the Act.

10\. IT IS FURTHER ORDERED THAT this notice shall be sent, by certified
mail, return receipt requested, to Culpeper Broadcasting Corporation,
c/o Robert A. DePont, 140 South Street, Annapolis, MD 21404. A copy
shall be sent, by first class mail, to Culpeper Broadcasting
Corporation, P.O. Box 699, Culpeper, VA 22701.

FEDERAL COMMUNICATIONS COMMISSION

Charles C. Magin

District Director

Columbia Office

[^1]: Section 312(f)(1), which also applies to Section 503(b), provides:
    "the term 'willful', when used with reference to the Commission or
    omission of any act, 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 or by a treaty ratified by the United
    States." *See Southern California Broadcasting Co.*, 6 FCC Rcd
    4387(1991).

[^2]:      ^?^Claims of inability to pay should be supported by tax
    returns or other financial statements prepared under generally
    accepted accounting procedures for the most recent three-year
    period.

[^3]: ^    \ ?^Requests for payment under installment plans should be
    mailed to: Chief, Credit & Debt Management Center, 445 12th Street,
    S.W., Washington, D.C. 20554. Payment of the forfeiture in
    installments may be considered as a separate matter in accordance
    with Section 1.1914 of the Commission\'s Rules. Contact Chief,
    Credit & Debt Management Center at (202) 418-1995 for more
    information on payments by credit card.

[^4]: ^   \  ?^For example, you must support your claim that you qualify
    as a small business and may therefore be eligible for a potential
    reduction in the amount of this forfeiture pursuant to the Small
    Business Regulatory Enforcement Fairness Act, Pub. L. 104-121, 110
    Stat. 858 (1996). If you have any questions on this subject, please
    contact the Commission\'s Office of Communications Business
    Opportunities at (202) 418-0990.