Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of ) File No.: EB-01-AT-464

> )

Wilson Broadcasting Co., Inc. ) NAL/Acct. No. 200232480005

Licensee, Station WAGF(AM) )

Dothan, Alabama ) FRN 0004-3330-19

## FORFEITURE ORDER

**Adopted: March 12, 2003 Released: March 17, 2003**

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of seven thousand dollars (\$7,000) to
    Wilson Broadcasting Co., Inc. ("Wilson"), licensee of Station
    WAGF(AM), Dothan, Alabama, for willful and repeated violation of
    Section 73.49 of the Commission's Rules ("the Rules").[^1] The noted
    violation involves Wilson's failure to provide an effective locked
    fence enclosure for the station's antenna structure.

2\. On June 10, 2002, the District Director of the Commission's Atlanta,
Georgia Field Office ("Atlanta Office") issued a *Notice of Apparent
Liability for Forfeiture* ("*NAL*")[^2] in the amount of \$7,000 to
Wilson. Wilson submitted a response on August 2, 2002.[^3]

**II. BACKGROUND**

3\. On April 23, 2002, a Commission agent from the Atlanta Field Office
conducted an inspection of the WAGF(AM) transmitter site and antenna
structure. The antenna structure with a folded unipole AM broadcast
antenna attached was not enclosed by fencing. Also, the feed wire from
the tuning box to the antenna was not protected by fencing. The antenna
had radio frequency potential at the base of the antenna structure.

4\. On April 24, 2002, a Commission agent from the Atlanta field office
inspected station WAGF(AM). Again, the agent noted that the station's
antenna structure was not enclosed by fencing. The station owner, Mr.
J.R. Wilson, stated that the station had been operating for about one
month and that the fencing had not yet been installed. On June 10, 2002,
the District Director of the Atlanta Office issued a *NAL* to Wilson for
violation of Section 73.49 of the Rules.

5\. On August 2, 2002, Wilson submitted a response to the *NAL*. In its
response, Wilson claims that the forfeiture was proposed in error and
the *NAL* must be rescinded because the antenna structure was surrounded
by a protective property fence, and therefore was not accessible to the
general public.

**III. DISCUSSION**

6\. The forfeiture amount in this case is being assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"),[^4] Section 1.80 of the Rules,[^5] 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 Wilson'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.[^6]

7\. Section 73.49 of the Rules provides that antenna towers having radio
frequency potential at the base (series fed, folded unipole, and
insulated base antennas) must be enclosed within effective locked fences
or other enclosures. Section 73.49 also provides that individual tower
fences need not be installed if the towers are contained within a
protective property fence. Wilson claims that at the time of the
inspection the WAGF tower was surrounded by a protective property fence
and the tower was therefore not accessible by the general public.
Although the property was surrounded by a fence, the investigating agent
observed breaks in the fence and there was an open gap in the fence at
the driveway. On April 23, 2002, when the agent inspected the
transmitter site and on April 24, 2002, when the agent inspected the
property with Mr. Wilson, the agent drove directly onto the property
without complete restriction from the property fence and walked right up
to the unenclosed tower. Although Wilson indicates that construction on
a second tower was on-going at the time of the inspection and that
construction required portions of the property fence to be removed, the
existing tower was still radiating and unenclosed during such
construction, presenting a possible safety hazard. Further, Wilson
indicates that the fence surrounding the antenna structure was taken
down on April 20, 2002, to facilitate the new construction, and the new
fence surrounding the antenna structure was constructed "on or about
April 26, 2002." However, Wilson does not indicate what measures were
taken during construction to protect individuals from the radiating
tower in the interim.

8\. Wilson also claims that the fact that Mr. Wilson's brother resided
on the property at the time of the tower construction helped to prevent
intrusion onto the site. Wilson further contends that a portion of the
land surrounding the property is swampland which also added a "further
barrier that precluded casual or inadvertent access to the site."
However, the rules require that the type of antenna structure at issue
here be surrounded either by an effective locked fence or other
enclosure or be contained within a protective property fence. The fact
that a portion of the property abuts swampland or that someone lives on
the property to provide security does not excuse Wilson from complying
with the requirements of Section 73.49. Further, the fact that the
investigating agent could drive, unimpeded, onto the property, walk
right up to the antenna structure and touch it at a time when it was
radiating means that Wilson had neither an effective locked fence
enclosure nor an effective protective property fence. Therefore, Wilson
was in violation of Section 73.49 of the Rules. Finally, although Wilson
also claims that the front gate was locked at all times when the site
was unoccupied, the agent has stated that there was no gate on the
property fence at the time he conducted the inspection and a section of
the property fence had been removed to facilitate the construction of
the tower.

9\. **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,[^7]
Wilson Broadcasting Co., Inc. **IS LIABLE FOR A MONETARY FORFEITURE** in
the amount of \$7,000 for willfully and repeatedly violating Section
73.49 of the Rules.

10\. 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.[^8] 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. 20023480005, and FRN 0004-3330-19. 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.[^9]

11\. **IT IS FURTHER ORDERED THAT** this *Order* shall be sent by
regular mail and by certified mail, return receipt requested, to Wilson
Broadcasting Co., Inc., Radio Station WAGF(AM), 808 N. Oates St.,
Dothan, Alabama 36303.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 73.49.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    20023480005 (Enf. Bur., Atlanta Field Office, released June 10,
    2002).

[^3]: A response to a Commission *NAL* should be filed within 30 days of
    the issuance of the *NAL*. *See* Section 1.80(f)(3) of the Rules.
    Although Wilson's response was filed more than 30 days from the
    issuance of the *NAL*, we will still consider it in this proceeding
    to ensure that we have a complete record.

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^8]: 47 U.S.C. § 504(a).

[^9]: *See* 47 C.F.R. § 1.1914.