**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. EB-03-AT-077        |
|                                  | *) |                              |
| Cumulus Licensing Corp.          | ** | NAL/Acct. No. 200332480025   |
|                                  |    |                              |
| Owner of Antenna Structures      | *  | FRN: 0005-2603-77            |
|                                  | *) |                              |
| #1052722 and #1052724            | ** |                              |
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| near Savannah, Georgia           | *  |                              |
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|                                  | ** |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 17, 2008 Released: March 17, 2008**

By the Commission:

# introduction

1.  By this *Memorandum Opinion and Order* ("*Order*"), we deny an
    Application for Review filed on March 6, 2006, by Cumulus Licensing
    Corporation ("Cumulus"), owner of antenna structures, registration
    numbers 1052722 and 1052724, near Savannah, Georgia, of the
    Enforcement Bureau's *Memorandum Opinion and Order*, released
    February 2, 2006.[^1] The *MO&O* denied Cumulus' Petition for
    Reconsideration of an Enforcement Bureau *Forfeiture Order*,[^2]
    released December 28, 2004, which found Cumulus liable for a
    forfeiture in the amount of ten thousand dollars (\$10,000) for
    willful and repeated violation of Section 17.50 of the Commission's
    Rules ("Rules").[^3] The noted violation involves the failure of
    Cumulus to clean and repaint its antenna structures to maintain good
    visibility.

# Background

2.  On March 26, 1998, Cumulus acquired the subject antenna structures
    associated with AM radio station WBMQ, Savannah, Georgia.
    Approximately three years and five months later, on August 22, 2001,
    an agent from the Enforcement Bureau's Atlanta, Georgia Field Office
    ("Atlanta Office") inspected the subject antenna structures and
    found that the paint was badly faded and peeling, greatly reducing
    the structures' visibility. On September 19, 2001, the Atlanta
    Office issued a *Notice of Violation* ("*NOV*") to Cumulus, noting,
    among other things, a violation of Section 17.50 of the Rules. On
    October 15, 2001, Cumulus responded that it was acquiring bids to
    repaint the structures and anticipated that the towers would be
    painted by December 31, 2001.

3.  On October 18, 2001, the Atlanta Office issued a *Continuation of
    Notice of Violation* requesting a status report on the antenna
    structure repainting. In its response dated January 9, 2002, Cumulus
    replied that it would decide no later than January 31, 2002, whether
    to repaint or replace the towers. On February 4, 2002, Cumulus
    submitted an additional reply to the Atlanta Office stating that it
    planned to replace the structures by June or July of 2002. On July
    31, 2002, Cumulus submitted another reply stating that it planned to
    relocate the transmitter site for WBMQ to another of its towers in
    Savannah, Georgia, after which it would dismantle the antenna
    structures.

4.  On March 18 and 19, 2003, approximately 18 months after issuing the
    *NOV,* an agent from the Atlanta Office re-inspected the antenna
    towers, and determined that the structures remained unpainted and
    that the orange and white aviation bands were not distinguishable at
    a distance of one-half mile. On May 27, 2003, the Atlanta Office
    issued Cumulus a *Notice of Apparent Liability for Forfeiture*[^4]
    proposing a forfeiture in the amount of \$10,000 for apparent
    willful[^5] and repeated[^6] violation of Section 17.50 of the
    Rules. In its August 1, 2003, Response to the *NAL* ("Response"),
    Cumulus did not contest the violation, but sought a downward
    adjustment of the forfeiture amount due to an overall history of
    compliance.[^7] Cumulus also sought a reduction of the proposed
    forfeiture amount based on its efforts to solve the problem once it
    received notice of the violation from the Atlanta Office.[^8]
    Cumulus described the remedial steps it had taken to date to cure
    the violation and the difficulties posed by the towers being located
    in protected wetlands. Cumulus stated that it solicited bids from
    three tower companies, but each determined that the towers were
    unsafe to climb and further, one company reported that the towers
    should be condemned.[^9] Cumulus also explained that the Army Corps
    of Engineers, which is responsible for protecting the wetlands, was
    concerned that scrapings of the lead paint would fall into the
    wetlands and could harm its inhabitants. Cumulus claimed that it
    then decided to dismantle the towers and replace them, but the
    "considerable cost" of erecting new towers in the place of the
    dismantled towers was "prohibitive."[^10] Finally, Cumulus stated
    that it planned to move the transmitter site of WBMQ to its nearby
    station.

5.  On December 28, 2004, the Enforcement Bureau released a *Forfeiture
    Order* finding Cumulus liable for a monetary forfeiture in the
    amount of \$10,000 for willful and repeated violation of Section
    17.50 of the Rules. The Enforcement Bureau determined that Cumulus'
    efforts to cure the violation were remedial as they were initiated
    in response to Commission notification, and concluded, that
    consistent with precedent that the remedial or corrective action did
    not mitigate the forfeiture at issue.[^11] Moreover, the Enforcement
    Bureau denied Cumulus' claim of a history of overall compliance
    based on evidence of numerous violations connected with the
    operation and maintenance of its other stations.[^12]

6.  On January 27, 2005, Cumulus filed a Petition for Reconsideration of
    the *Forfeiture Order*. Again, not disputing the violation, Cumulus
    asserted that it was "still not legally able to dismantle the
    towers," explaining that doing so would lead to severe monetary
    penalties from other government agencies,[^13] and sought a
    reduction in the forfeiture amount due to the "exceptional
    circumstances" it continued to encounter in attempting to comply
    with the Rules. Cumulus stated that although it was making "every
    effort to comply" with the Rules, it had experienced setbacks and
    delays due to approvals needed from a variety of governmental
    agencies before dismantling the towers. For example, Cumulus
    explained that the absence of a central authority to specify the
    requirements for dismantling the towers had resulted in a series of
    delays. Cumulus argued that often, once it met the specific
    requirements of one agency, "another agency impose\[d\] different
    and sometimes conflicting requirements."[^14] Cumulus also discussed
    some of the "substantial progress" it had made toward dismantling
    the towers: (1) consulting with the relevant governmental agencies
    and obtaining some of the required regulatory approvals, (2) hiring
    consultants to evaluate environmental and safety issues and
    recommend the best approach to dismantling the towers and (3)
    contracting a construction company to oversee the demolition.[^15]
    Cumulus explained that it had obtained certain environmental agency
    approvals concerning protected species,[^16] filed applications for
    approvals to dismantle the towers and would continue to update the
    Commission on its progress in curing the violation. On August 3,
    2005, Cumulus informed the Enforcement Bureau that it had completed
    demolition of the subject towers on July 22, 2005[^17] --- over
    seven years after acquiring the towers, and almost four years after
    receiving the *NOV*.

7.  On February 2, 2006, the Enforcement Bureau issued an *MO&O* denying
    Cumulus' Petition for Reconsideration. The Enforcement Bureau
    determined, as it had in the *Forfeiture Order,* that Cumulus
    delayed taking any steps to comply with the rules until it received
    notice of the violation from the Atlanta Office on September 19,
    2001,[^18] approximately three years and six months after acquiring
    the antenna structures. In the *MO&O,* the Enforcement Bureau
    reiterated the determination of the *Forfeiture Order* --- that the
    Commission has consistently found 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.\"[^19] The Enforcement Bureau stated that Cumulus could
    not carve out an exception to the Commission's long-held
    determination that remedial measures do not mitigate a Rule
    violation, even when the cure is complicated, takes time and great
    expense.[^20] The Enforcement Bureau determined, as it did in its
    previous orders, that *"*Cumulus should have known of, and acted on,
    the lack of paint on the towers prior to or immediately upon the
    March 26, 1998, purchase of the station and associated towers."[^21]

8.  In its Application for Review, Cumulus again does not dispute the
    Enforcement Bureau's findings that its towers were in violation of
    the tower painting rules.[^22] However, Cumulus reiterates that the
    Enforcement Bureau has not given "adequate consideration" to the
    "exceptional circumstances" it faced to "cure this violation,"[^23]
    and argues that these circumstances warrant a reduction in the
    forfeiture amount "for such matters as justice may require."[^24] In
    addition, Cumulus again seeks a downward adjustment of the
    forfeiture amount for overall compliance with the rules, a request
    which was previously denied.[^25] Cumulus argues that as an owner of
    more than 260 stations, its "numerous" violations relative to its
    size, are very small, and that "it is unfair to portray Cumulus as
    an entity that does not respect Commission rules."[^26]

9.  The forfeiture amount in this case was assessed in accordance with
    Section 503(b) of the Act, Section 1.80 of the Rules, and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*.[^27] In
    examining Cumulus' Application for Review, 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 any other "such matters as justice may
    require."[^28]

# DISCUSSION

## Tower Painting Violation

10. [Background.]{.underline} Section 303(q) of the Act grants the
    Commission authority to oversee antenna structure painting
    requirements.[^29] Section 303(q) of the Act is codified in Part 17
    of the Rules. Section 17.50 of the Rules states that antenna
    structures requiring painting must be cleaned or repainted as often
    as necessary to maintain good visibility. The Commission has
    consistently stressed the importance of compliance with antenna
    structure rules because of the potential danger to air
    navigation.[^30] The Commission has established a \$10,000 base
    forfeiture for violations of its antenna structure painting and
    lighting requirements.

11. [Discussion.]{.underline} For the reasons provided below, we
    conclude that Cumulus' remedial efforts to bring the tower into
    compliance do not mitigate its forfeiture for willful and repeated
    violation of Section 17.50. As an initial matter, the record shows
    that Cumulus has never disputed the Commission's finding that the
    antenna structures violated Section 17.50 of the Rules. On the one
    hand, Cumulus states that it "is not trying to avoid paying a
    \$10,000 fine."[^31] On the other hand, paradoxically, Cumulus seeks
    a downward adjustment of the forfeiture amount on the basis of "such
    other matters as justice may require,"[^32] claiming that the
    Enforcement Bureau did not "adequately recognize the elaborate
    remedial efforts performed by Cumulus" to bring the towers into
    compliance with the rules. [^33] We disagree. Throughout this
    proceeding, we have acknowledged Cumulus' remedial efforts. Simply
    stated, however, Cumulus did not initiate a cure for the violation
    or condition of the tower until *after* it was put on notice by the
    Commission. It is well established 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."[^34] Thus, Cumulus is not entitled to a downward
    adjustment for these efforts.

12. Cumulus, which purchased the station and towers on March 26, 1998,
    admits that it knew that the towers were in bad repair, but claims
    that it did *not* know at that time that the towers could not be
    brought into compliance with the tower painting rules. [^35] The
    point is unavailing. Cumulus did not do anything before the
    inspection, to determine whether the towers could be brought into
    compliance - through repainting or otherwise. Had Cumulus done so,
    it would have learned, as it did following the inspection, that the
    towers could not be painted. Cumulus approached three tower painting
    companies. Each determined that the towers were unsafe to climb \--
    one company reported that the towers should be condemned.[^36] Had
    Cumulus attempted to address the condition of the towers prior to
    receiving Commission notice through the issuance of the *NOV,* a
    justification to downwardly adjust the forfeiture amount may
    arguably have been presented.[^37] An after-the-fact determination
    by Cumulus that it could not have cured the violation through
    repainting, either before or after issuance of the *NOV,* is not a
    mitigating factor to support a reduction of the forfeiture
    amount.[^38] There is no record of any efforts by Cumulus to address
    the towers' condition prior to notification of the violation. Absent
    such showing, we concur with the Enforcement Bureau's determination
    that Cumulus should have known of, and acted on, the tower violation
    prior to or immediately upon its purchase of the station and
    associated towers.[^39]

13. Cumulus also argues that the tower painting violation could not be
    cured by painting the towers, but rather required dismantling. To
    the extent that Cumulus attempts to argue for mitigation because it
    could not cure the tower violation by *painting* the towers, it is
    misguided. What Cumulus fails to acknowledge is that the remedy for
    violating the Commission's tower painting rules is to bring the
    towers into compliance with those rules, by whatever means
    necessary. The remedy for the tower painting violation in this
    instance was to dismantle them. Cumulus deserves no credit for
    ultimately doing that which had to be done.[^40]

14. Cumulus next claims that the time it takes to cure a violation
    should be a deciding factor in determining what constitutes
    exceptional circumstances. Cumulus argues that in *Tower Properties
    of Florida, Inc.* ("*Tower*")*,*[^41] the Enforcement Bureau did not
    find that a delay of a few weeks constituted exceptional
    circumstances warranting a downward adjustment of the forfeiture
    amount, but that a delay of four years should.[^42] Cumulus misses
    the point. In *Tower,* the Enforcement Bureau flatly rejected any
    notion of time as a mitigating factor in post-notice efforts to cure
    a tower painting violation, stating that time had "no bearing on the
    subject forfeiture."[^43] In *Tower,* the cure took approximately
    three months. In the instant case, the cure took over four years.
    Tower Properties and Cumulus both initiated curative measures
    *after* being notified by the Commission of a tower painting
    violation. As previously explained, in *Tower* as here, unforeseen
    and unavoidable circumstances resulting in a delay of *any* duration
    encountered *after* Commission notification of a violation are not
    deemed mitigating factors warranting a downward adjustment of the
    forfeiture amount.[^44]

## History of Compliance

15. [Background.]{.underline} Section 1.80 of the Rules contains
    criteria for downwardly adjusting forfeiture amounts that are
    determined in accordance with Section 503 of the Act. One such
    criterion is a history of overall compliance with the Commission's
    Rules. Forfeiture amounts have been downwardly adjusted in cases
    where Commission licensees or regulatees claim, and agency records
    (including Commission, Bureau and Field Office decisions) confirm, a
    history of overall compliance with the requirements of the Act and
    the Rules.

16. [Discussion.]{.underline} We conclude that the record does not
    support a downward adjustment of the forfeiture based on a history
    of overall compliance with the Commission's Rules. In the
    Application for Review, Cumulus again seeks a downward adjustment of
    the forfeiture amount due to a history of compliance.[^45] Cumulus
    argues that although it owns more than 260 stations and has
    "numerous violations," the number of violations is comparatively
    very small.[^46] Our records for Cumulus provide that a number of
    the Enforcement actions noted in its enforcement history are for
    violations of the Commission's tower painting rules. Accordingly,
    based on these noted previous tower violations by Cumulus, we do not
    believe that a history of compliance reduction would be appropriate.
    Cumulus also argues that "it is unfair to portray it as an entity
    that does not respect the Commission's rules."[^47] Cumulus
    mischaracterizes the Commission's decision not to downwardly adjust
    the forfeiture amount on the basis of a history of compliance with
    the rules. Cumulus is not being punished for these other rule
    violations; rather, the Commission simply finds that these
    violations preclude mitigation of the forfeiture amount on the basis
    of a history of overall compliance.

## Conclusion

17. We have examined Cumulus' Application for Review pursuant to the
    statutory factors above and in conjunction with the *Forfeiture
    Policy Statement* as well. As a result of our review, we affirm the
    *MO&O'*s conclusion that Cumulus willfully and repeatedly violated
    Section 17.50 of the Rules and that it is not entitled to a
    reduction in the assessed forfeiture amount.

# ORDERING CLAUSES

18. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 1.115 of
    the Rules,[^48] the Application for Review filed by filed by Cumulus
    Licensing Corporation of the Enforcement Bureau's *Memorandum
    Opinion and Order* **IS DENIED.**

19. **IT IS ALSO ORDERED THAT**, pursuant to Section 503(b) of the Act
    and Section 1.80(f)(4) of the Rules,[^49] Cumulus Licensing
    Corporation **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
    ten thousand dollars (\$10,000) for willful and repeated violation
    of Section 17.50 of the Rules.

20. Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Account Number and FRN
    Number referenced above. Payment by check or money order may be
    mailed to Federal Communications Commission, P.O. Box 979088, St.
    Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S.
    Bank -- Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention
    Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to
    ABA Number 021030004, receiving bank TREAS/NYC, and account
    number 27000001. For payment by credit card, an FCC Form 159
    (Remittance Advice) must be submitted. When completing the FCC Form
    159, enter the NAL/Account number in block number 23A (call
    sign/other ID), and enter the letters "FORF" in block number 24A
    (payment type code). Requests for full payment under an installment
    plan should be sent to: Chief Financial Officer \-- Financial
    Operations, 445 12th Street, S.W., Room 1-A625, Washington,
    D.C. 20554. Please contact the Financial Operations Group Help Desk
    at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
    regarding payment procedures.

21. **IT IS FURTHER ORDERED THAT** a copy of this *Order* shall be sent
    by first class mail and certified mail, return receipt requested, to
    Cumulus Media Inc., 111 East Kilbourn Avenue, Suite 2700, Milwaukee,
    Wisconsin, 53202, and its Counsel, Mark N. Lipp, Wiley Rein LLP,
    1776 K Street NW, Washington, DC 20006.

    **FEDERAL COMMUNICATIONS COMMISSION**

Marlene H. Dortch

Secretary

[^1]: *Cumulus Licensing Corp.,* Memorandum Opinion and Order*,* 21 FCC
    Rcd 1032 (Enf. Bur. 2006) ("*MO&O*").

[^2]: *Cumulus Licensing Corp*., Forfeiture Order*,* 19 FCC Rcd 24815
    (Enf. Bur. 2004) ("*Forfeiture Order*").

[^3]: 47 C.F.R. § 17.50.

[^4]: *Cumulus Licensing Corp.,* Notice of Apparent Liability for
    Forfeiture, NAL/Acct. No. 200332480025 (Enf. Bur., Atlanta Office,
    released May 27, 2003) ("*NAL*").

[^5]: Section 312(f)(1) of the Communications Act of 1934, as amended
    ("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 . . . ." The
    *Conference Report* for Section 312(f)(1) of the Act indicates that
    Congress intended to apply this definition to Section 503 of the Act
    as well as Section 312 of the Act. *See* H.R. Rep. 97^th^ Cong. 2d
    Sess. 51 (1982); *see Southern California Broadcasting Co.*,
    Memorandum Opinion and Order*,* 6 FCC Rcd 4387, 4388 (1991), *recon.
    denied,* Memorandum Opinion and Order*,* 7 FCC Rcd. 3454 (1992)
    ("*Southern California Broadcasting*") and *Western Wireless
    Corporation*, Notice of Apparent Liability for Forfeiture*,* 18 FCC
    Rcd 10319, 10326 n.56 (2003) ("*Western Wireless*").

[^6]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that a violation is "repeated" if it
    continues for more than one day. The *Conference Report* for Section
    312(f)(2) of the Act indicates that Congress intended to apply this
    definition to Section 503 of the Act as well as Section 312 of the
    Act. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting*, 6 FCC Rcd at 4388 and *Western Wireless*,
    18 FCC Rcd at 10326 n.56.

[^7]: Response at 5.

[^8]: *Id.* at 4.

[^9]: *Id.* at 2.

[^10]: *Id.* at 3.

[^11]: *Forfeiture Order,* 19 FCC Rcd at 24818 *citing AT&T Wireless
    Services, Inc*., Forfeiture Order, 17 FCC Rcd 21866, 21871 (2002)
    ("*AT&T Wireless*") (remedial action to correct tower painting
    violation was not a mitigating factor warranting reduction of
    forfeiture); *Seawest Yacht Brokers*, Forfeiture Order, 9 FCC Rcd
    6099 (1994) ("*Seawest*") (corrective action taken to comply with
    the Rules is expected, and does not mitigate any prior forfeitures
    or violations). *See TCI Cablevision of Maryland,* Memorandum
    Opinion and Order, 7 FCC Rcd 6013, 6014 (1992) (basing mitigation of
    a forfeiture upon corrective action taken subsequent to the
    misconduct upon which liability is based would tend to encourage
    remedial rather than preventive action); *KGVL, Inc.,* Memorandum
    Opinion and Order, 42 FCC 2d 258, 259 (1973) (licensees not excused
    for past violations by reason of subsequent corrective action).

[^12]: *Forfeiture Order,* 19 FCC Rcd at 24818.

[^13]: Petition for Reconsideration at 3. Cumulus stated that it was
    required to obtain authorization from the Army Corps of Engineers
    prior to dismantling the towers, and that to do so without such
    approval could potentially subject Cumulus to a liability of over
    \$100,000.

[^14]: *Id.* at 4.

[^15]: *Id.* at 3. Cumulus asserted that this process involved, among
    other things, measuring the lead in the top soil to determine the
    extent of the lead clean up once the towers were dismantled.

[^16]: Petition for Reconsideration at 3. Cumulus submitted a partial
    list of the governmental agencies involved in the antenna tower
    demolition approval process: the Environmental Protection Agency,
    Federal Aviation Administration, U.S. Fish and Wildlife Service,
    U.S. Army Corps of Engineers, Georgia Department of Natural
    Resources and the Chatham County Department of Building Safety &
    Regulatory Services.

[^17]: Cumulus Licensing Corp., Final Progress Report at 1 (Aug. 3,
    2005).

[^18]: *MO&O*, 21 FCC Rcd at 1035 *citing Forfeiture Order*, 19 FCC Rcd
    24817.

[^19]: *MO&O,* 21 FCC Rcd at 1035 *citing* *Forfeiture Order,* 19 FCC
    Rcd at 24818 *citing AT&T Wireless,* 17 FCC Rcd at 21871; *Seawest*,
    9 FCC Rcd at 6099.

[^20]: *MO&O,* 21 FCC Rcd at 1035.

[^21]: *Id. citing Forfeiture Order,* 19 FCC Rcd at 24817-18.

[^22]: Application for Review at 6.

[^23]: *Id.* at 2.

[^24]: *Id*. at 8 *citing* 47 U.S.C. §503(b)(2)(E).

[^25]: *Forfeiture Order,* 19 FCC Rcd at 24818.

[^26]: Application for Review at 7.

[^27]: *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), *recon. denied*,
    Memorandum Opinion and Order, 15 FCC Rcd 303 (1999) ("*Forfeiture
    Policy Statement* ").

[^28]: 47 U.S.C. § 503(b)(2)(E).

[^29]: 47 U.S.C. § 303(q).

[^30]: *See SpectraSite Communications*, Notice of Apparent Liability
    for Forfeiture*,* 18 FCC Rcd 22799 (2002) (stressing the importance
    of compliance with antenna structure rules in light of air safety
    considerations); *see AT&T Wireless,* 17 FCC Rcd at 21870 (stressing
    the importance of compliance with antenna structure rules in light
    of air safety considerations).

[^31]: Application for Review at 7.

[^32]: *Id*. At 8.

[^33]: *Id*. at 6.

[^34]: *MO&O,* 21 FCC Rcd at 1035 *citing* *Forfeiture Order,* 19 FCC
    Rcd at 24818 *citing AT&T Wireless,* 17 FCC Rcd at 21871; *Seawest*,
    9 FCC Rcd at 6099.

[^35]: Application for Review at 7.

[^36]: Response at 2.

[^37]: *See A-O Broadcasting* *Corporation*, Memorandum Opinion and
    Order*,* 20 FCC Rcd 756, 761 (2005) ("*A-O Broadcasting*") (because
    licensee showed good faith by obtaining EAS equipment and starting
    constructing a main studio before the inspection, the forfeiture was
    reduced); *Radio One Licenses, Inc.,* Memorandum Opinion and
    Order*,* 18 FCC Rcd 15964, 15965 ¶ 4 (2003), *recon. denied,*
    Memorandum Opinion and Order*,* 18 FCC Rcd 25481 (2003) (reducing a
    forfeiture from \$9,200 to \$8,000 for EAS violations because the
    licensee had identified the problems and had ordered replacement
    equipment *prior* to the Field Office's on-site inspection).

[^38]: Post-notification remedial efforts cannot mitigate the effects of
    a violation that results in the issuance of forfeiture. *See Sutro
    Broadcasting Corporation,* 19 FCC Rcd 15274, 15277 (2004) (stating
    that the Commission will generally reduce the assessed forfeiture
    amount "based on the good faith corrective efforts of a violator
    when those actions were taken *prior* to Commission notification of
    the violation") (emphasis added); *CB Radio, Inc.*, Memorandum
    Opinion and Order, 22 FCC Rcd 8836, 8839-40 (2007) (noting that "it
    is well established that post-investigational efforts to correct a
    violation do not mitigate the forfeiture or warrant a reduction in
    the assessed forfeiture amount"), *recon pending*. However,
    post-notification remedial efforts may be relevant in determining
    the ultimate severity of any further or future enforcement action.
    Thus, for instance, a licensee that takes minimal steps to remedy a
    violation post-notification could receive an NAL that is
    significantly higher (by way of an upward adjustment) than a
    licensee that takes substantial steps to come into compliance as
    quickly as possible \-- although neither licensee can reduce its
    forfeiture liability for its pre-notification violation.

[^39]: *MO&O,* 21 FCC Rcd at 1035 *citing Forfeiture Order,* 19 FCC Rcd
    at 24816.

[^40]: Cumulus seems to ignore that the condition of its towers
    represented a significant potential hazard to air navigation. We
    note that if the Commission were to take no action after observing
    the non-compliant condition of the towers, the Commission would be
    failing to meet its responsibilities for assisting in air navigation
    safety.

[^41]: *Tower Properties of Florida, Inc.,* Forfeiture Order, 18 FCC Rcd
    26094, 26096 (Enf. Bur. 2003) ("*Tower*") (once notified by the
    Commission of a tower painting violation, subsequent unforeseen and
    unavoidable circumstances which allegedly caused a delay in remedial
    efforts to comply with the rules were not deemed mitigating factors
    and had no bearing on the subject forfeiture).

[^42]: Application for Review at 8.

[^43]: *Tower,* 18 FCC Rcd at 26096.

[^44]: *MO&O,* 21 FCC Rcd at 1035 *citing Tower*, 18 FCC Rcd at 26096.

[^45]: Cumulus first sought a downward adjustment of the forfeiture
    amount on the basis of a history of compliance in its Response to
    the *NAL.* The Bureau *Forfeiture Order* denied the request for the
    downward adjustment based on evidence of numerous violations by
    Cumulus connected with the operation and maintenance of its other
    stations. *See Forfeiture Order,* 19 FCC Rcd at 24818*.* Cumulus did
    not request a history of compliance reduction in its Petition for
    Reconsideration of the *Forfeiture Order.*

[^46]: Application for Review at 7.

[^47]: *Id.*

[^48]: 47 CFR § 1.115.

[^49]: 47 C.F.R. § 1.80(f)(4).