**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number EB-08-OR-0213       |
|                                  |   |                                 |
| Jason Konarz                     | ) | NAL/Acct. No. 200932620002      |
|                                  |   |                                 |
| Licensee of DWQMA-AM             | ) | FRN 0005015425                  |
|                                  |   |                                 |
| Marks, MS                        | ) |                                 |
|                                  |   |                                 |
| Facility ID \# 1219              | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: November 21, 2008

By the District Director, New Orleans Office, South Central Region,
Enforcement Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture ("*NAL*"), we
    find that Jason Konarz, licensee of station DWQMA-AM, in Marks,[^1]
    Mississippi, apparently willfully and repeatedly violated Section
    73.49 of the Commission\'s Rules ("Rules")[^2] by failing to enclose
    an antenna tower with radio frequency potential at the base within
    an effective locked fence. We conclude, pursuant to Section 503(b)
    of the Communications Act of 1934, as amended ("Act"),[^3] that Mr.
    Konarz is apparently liable for a forfeiture in the amount of
    fourteen thousand dollars (\$14,000).

# BACKGROUND

2.  On September 25 and September 26, 2008, in response to a complaint,
    agents from the Commission's New Orleans Field Office of the
    Enforcement Bureau ("New Orleans Office") inspected radio station
    DWQMA-AM in Marks, MS. On both days, one side of the fence
    surrounding the antenna structure was missing. There was substantial
    growth around and through the existing fence and where the missing
    side of the fence should have been, indicating that the fence side
    had been missing for quite some time. There was no perimeter fence
    around the property. On September 26, 2008, Mr. Konarz stated he was
    aware of the condition of the fence surrounding the antenna
    structure, but claimed that the fence side had been down for less
    than a week.

# DISCUSSION

3.  Section 503(b) of the Act provides that any person who willfully or
    repeatedly fails to comply substantially with the terms and
    conditions of any license, or willfully or repeatedly fails to
    comply with any of the provisions of the Act or of any rule,
    regulation or order issued by the Commission thereunder, shall be
    liable for a forfeiture penalty. The term "willful" as used in
    Section 503(b) of the Act has been interpreted to mean simply that
    the acts or omissions are committed knowingly.[^4] The term
    "repeated" means the commission or omission of such act more than
    once or for more than one day.[^5]

4.  Section 73.49 of the Rules[^6] requires that antenna towers having
    radio frequency potential at the base must be enclosed within
    effective locked fences or other enclosures. However, individual
    tower fences need not be installed if the towers are contained
    within a protective property fence. On September 25 and September
    26, 2008, agents from the New Orleans Office observed that the fence
    surrounding DWQMA-AM's antenna structure was missing an entire side,
    providing ready access to the base of the structure. The antenna
    structure was confirmed to have radio frequency potential at the
    base. There was no perimeter fence around the property. There was
    substantial growth around and through the existing fence and where
    the missing side of the fence should have been, indicating that the
    fence side had been missing for quite some time. Mr. Konarz was
    aware of the fence's condition.

5.  Based on the evidence before us, we find that Mr. Konarz apparently
    willfully and repeatedly violated Section 73.49 of the Rules by
    failing to enclose a tower, with radio frequency potential at the
    base, within an effective locked fence or other enclosure.

6.  Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* ("*Forfeiture Policy Statement*"), and Section 1.80 of
    the Rules, the base forfeiture amount for violation of AM tower
    fencing is \$7,000.[^7] In assessing the monetary forfeiture amount,
    we must also take into account the statutory factors set forth in
    Section 503(b)(2)(E) of the Act, which include the nature,
    circumstances, extent, and gravity of the violations, and with
    respect to the violator, the degree of culpability, and history of
    prior offenses, ability to pay, and other such matters as justice
    may require.[^8] On February 8, 2007, agents from the New Orleans
    Office observed that the fence around station DWQMA's antenna
    structure was in disrepair, allowing ready access to the base. Mr.
    Konarz received a Notice of Apparent Liability and Forfeiture Order
    for this violation.[^9] Because Mr. Konarz previously allowed his
    antenna structure fence to fall into disrepair, we believe an upward
    adjustment to \$14,000 is warranted. Applying the *Forfeiture Policy
    Statement*, Section 1.80 of the Rules, and the statutory factors to
    the instant case, we conclude that Mr. Konarz is apparently liable
    for a \$14,000 forfeiture.

# ORDERING CLAUSES

7.  Accordingly**, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, 0.314 and 1.80 of the Commission\'s Rules, Jason Konarz is
    hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of fourteen thousand dollars (\$14,000) for violations
    of Section 73.49 of the Rules.[^10]

8.  **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules within thirty days of the release date of this
    Notice of Apparent Liability for Forfeiture, Jason Konarz **SHALL
    PAY** the full amount of the proposed forfeiture or **SHALL FILE** a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

9.  Payment of the forfeiture must be made by credit card, check or
    similar instrument, payable to the order of the Federal
    Communications Commission. The payment must include the 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 Federal Reserve Bank
    of New York, 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.[^11]   If you have questions,
    please contact the Financial Operations Group Help Desk at
    1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made,
    Konarz will send electronic notification on the date said payment is
    made to SCR-Response@fcc.gov.

10. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, South Central Region, New Orleans
    Office, 2424 Edenborn Ave., Suite 460, Metairie, Louisiana, 70001
    and must include the NAL/Acct. No. referenced in the caption.

11. The Commission 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. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

12. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Jason Konarz at his address
    of record.

FEDERAL COMMUNICATIONS COMMISSION

Leroy Hall

District Director

New Orleans Office

South Central Region

Enforcement Bureau

[^1]: This license was cancelled on June 1, 2004. However, Mr. Konarz
    was granted special temporary authority to operate on June 22, 2006.

[^2]: 47 C.F.R. § 73.49.

[^3]: 47 U.S.C. § 503(b).

[^4]: 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\', 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...."
    *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^5]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that "\[t\]he term \'repeated\',
    when used with reference to the commission or omission of any act,
    means the commission or omission of such act more than once or, if
    such commission or omission is continuous, for more than one day."

[^6]: 47 C.F.R. §73.49.

[^7]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^8]: 47 U.S.C. § 503(b)(2)(E).

[^9]: *See* Jason Konarz, *Notice of Apparent Liability for Forfeiture,*
    NAL/Acct. No. 200732620003 (Enf. Bur., New Orleans Office, released
    April 24, 2007); *Forfeiture Order*, 22 FCC Rcd 10890 (Enf. Bur.
    2007).

[^10]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    73.49.

[^11]: ^8^ *See* 47 C.F.R. § 1.1914.