**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 )

) FRN-0003782182

## MEMORANDUM OPINION AND ORDER 

**Adopted: August 26, 2005 Released: August 30, 2005**

By the Acting Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Memorandum Opinion and Order ("Order")*, we deny the
    petition for reconsideration filed by 4M of Richmond, Inc. ("4M of
    Richmond"), licensee of AM station WLEE, Richmond, Virginia. 4M of
    Richmond seeks reconsideration of the *Forfeiture Order*[^1] issued
    by the Enforcement Bureau ("Bureau") on August 13, 2004, in the
    amount of six thousand six hundred dollars (\$6,600), for willful
    violation of Section 73.49 of the Commission\'s Rules ("Rules") and
    willful and repeated violation of Section 73.1745(a) of the
    Rules.[^2] The noted violations involve 4M of Richmond's failure to
    enclose its tower within an effective locked fence (§ 73.49) and
    exceeding its nighttime power limit (§ 73.1745(a)).[^3]

#### II. BACKGROUND

2.  WLEE is licensed to transmit with a daytime power of 1,000 watts and
    a nighttime power of 13 watts. On August 19, 2002, an agent from the
    Commission's Norfolk, Virginia, Resident Agent Office ("Norfolk
    Office") inspected WLEE's transmitter site. At about 1:30 p.m., the
    agent observed that the gate to the fence surrounding the base of
    WLEE's tower had no lock. 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.

3.  On November 4, 2002, the Norfolk Office issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") to 4M of Richmond in the amount
    of \$11,000 for apparent willful violation of Section 73.49
    (\$7,000) and apparent willful and repeated violation of Section
    73.1745(a) (\$4,000) of the Rules.[^4] In its response to the *NAL*,
    filed December 3, 2002, 4M of Richmond sought reduction or
    cancellation of the proposed forfeiture. On August 13, 2004, the
    Bureau issued a *Forfeiture Order* which did not cancel the
    forfeiture but reduced the amount because it found that 4M of
    Richmond had a history of overall compliance. Additionally, the
    *Forfeiture Order* found that 4M of Richmond acted in good faith by
    correcting or attempting to correct its violations of Sections 17.49
    and 73.1745(a) of the Rules before being notified of those
    violations. The *Forfeiture Order* imposed a forfeiture in the
    amount of \$6,600 against 4M of Richmond for violations of Sections
    17.49 and 73.1745(a) of the Rules (reduced from \$11,000 because of
    history of overall compliance and good faith).[^5] In its petition
    for reconsideration of the *Forfeiture Order*, 4M of Richmond seeks
    reduction or cancellation of its \$6,600 forfeiture.

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III. **DISCUSSION**

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A.  **Violation of Section 73.49 of the Rules (Fencing)**

> **1. Background**

4.  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. The Enforcement
    Bureau has imposed forfeitures for violation of this rule in
    numerous cases because of the safety concerns to the public that
    fencing violations represent.[^6]

    **2. Discussion**

5.  4M of Richmond argues that its violation of Section 73.49 of the
    Rules was "minor" because it lasted for only four days, was not as
    serious as the violations of other licensees who had no antenna
    structure fencing[^7] or gaps in the fencing,[^8] and was corrected
    before the Norfolk Office notified 4M of Richmond of the violation.
    4M of Richmond contends that *Kaspar Broadcasting Co. of Missouri,*
    14 FCC Rcd 4719 (Enf. Bur. 2004), in which the forfeiture was
    cancelled, is similar to this case.

6.  We disagree. The cases are not, in fact, similar. In *Kaspar,* the
    gate to the enclosure around the station's antenna structure was
    open for 30 minutes to facilitate repairs, while in the instant case
    the gate was left unlocked for four days. Moreover, the fact that
    sanctions in other cases were imposed for longer-lasting fencing
    violations is not dispositive. [^9] As we previously found in the
    *Forfeiture Order*, a duration of "only" four days does not make 4M
    of Richmond's violation of Section 73.49 "minor."[^10] Given the
    fact that the gate to the fence was unlocked and the radiating
    antenna structure was thus accessible to anyone over a four day
    period, we find that 4M of Richmond's fencing violation cannot be
    characterized as minor. 4M of Richmond corrected the fencing
    violation before the Norfolk Office notified it of the violation,
    thus warranting a reduction for good faith. We note, however, that
    the forfeiture amount (\$4,200) imposed by the *Forfeiture Order*
    for violation of Section 73.49 already reflects this reduction. We
    conclude that no further reduction in the forfeiture amount imposed
    for violation of Section 73.49 of the Rules is merited.

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B.  **Violation of Section 73.1745(a) of the Rules (Excessive Power).**

    **1. Background**

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7.  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. The
    Enforcement Bureau has imposed forfeitures for violation of this
    rule in numerous cases as a licensee is expected to operate in a
    manner consistent with its license.[^11]

    **2. Discussion**

8.  4M of Richmond asserts that the *Forfeiture Order* is not clear as
    to whether its violation of Section 73.1745(a) of the Rules is for
    operating with 37, 39, 940 or 945 watts. 4M of Richmond argues that
    its operation with 940-945 watts should not be considered in this
    proceeding because the *NAL* did not notify it that the station had
    operated at those power levels. Additionally, 4M of Richmond argues
    "an excess nighttime power of 26 watts for no more than three (3)
    days is 'minor'" and "far less egregious" than violations by other
    licensees who operated "with day time power levels for long periods
    of time."[^12] Finally, 4M of Richmond claims that because the *NAL*
    did not specify the excess power levels, 4M was not given
    appropriate notice until the *Forfeiture Order* containing those
    specific power levels was issued. Thus, 4M of Richmond argues, the
    Commission cannot impose a forfeiture in this case because 4M of
    Richmond did not receive notice of a specific violation until more
    than one year after the violation occurred, which is prohibited by
    the Commission's Rules.[^13]

9.  We reject 4M of Richmond's arguments. We found in the *Forfeiture
    Order* that WLEE was operating, at various times, with 37, 39, 940
    or 945 watts. The *NAL* notified 4M of Richmond that WLEE's power
    exceeded the authorized nighttime power "by at least 200% on August
    17, 18 and 19, 2002" and 4M of Richmond's own logs indicated that it
    operated at excessive power levels on these dates.[^14] As indicated
    above, WLEE's [nighttime]{.underline} power was near its authorized
    [daytime]{.underline} level after sunset on August 18, 2002, and
    before sunrise on August 19, 2002 -- over 70 times the authorized
    level. Even WLEE's operation at a power level of 37-39 watts on the
    evenings of August 17 and 19 was close to three times the authorized
    level.[^15] We find that 4M of Richmond's violations of Section
    73.1745(a) of the Rules cannot be characterized as minor and that no
    further reduction in the \$2,400 forfeiture amount imposed for
    violation of Section 73.1745(a) is warranted.

10. Finally, as to 4M of Richmond's notice argument, as stated above,
    the *NAL* gave 4M of Richmond sufficient as well as timely notice of
    the extent of its excess power levels on the nights of August 17,
    18, and 19, 2002.[^16]

11. We have examined the 4M of Richmond's petition for reconsideration
    of the *Forfeiture Order* pursuant to the statutory factors
    prescribed by Section 503(b)(2)(D) of the Act,[^17] and in
    conjunction with the *Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines.*[^18] As a result of our review, we conclude that no
    further reduction is warranted and that the appropriate amount for
    the forfeiture is \$6,600.

    **IV. ORDERING CLAUSES**

12. Accordingly, **IT IS ORDERED** that, pursuant to Section 1.115(g) of
    the Rules,[^19] 4M of Richmond's petition for reconsideration of the
    *Forfeiture Order* **IS DENIED** and the *Forfeiture Order* **IS
    AFFIRMED**.

13. Payment of the forfeitures 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.[^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/Acct. No. and FRN No. referenced above. 
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911-6106. 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.[^21]

14. **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 and to their counsel, Stephen T. Yelverton,
    Yelverton Law Firm. P.L.L.C., 601 Pennsylvania Avenue, NW, Suite 900
    South, Washington, DC 20004.

    FEDERAL COMMUNICATIONS COMMISSION

Kris Anne Monteith

Acting Chief, Enforcement Bureau

[^1]: *4M of Richmond, Inc., and 4M Communications, Inc.*, 19 FCC Rcd
    15447 (Enf. Bur. 2004).

[^2]: 47 C.F.R. §§ 73.49 and 73.1745(a).

[^3]: The *Forfeiture Order* also imposed a forfeiture of eight thousand
    dollars (\$8,000) against 4M Communications, Inc. ("4M
    Communications"), the owner of WLEE's antenna structure, for willful
    violation of Section 17.50 of the Rules, 47 C.F.R. § 17.50 (failure
    to comply with the prescribed antenna structure marking). 4M
    Communications does not seek reconsideration of that forfeiture.

[^4]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332640001 (Enf. Bur., Norfolk Office, released November 4, 2002).
    The *NAL* was also issued to 4M Communications in the amount of
    \$10,000 for apparent willful violation of Section 17.50 of the
    Rules.

[^5]: The *Forfeiture Order* also reduced the forfeiture amount to
    \$8,000 against 4M Communications for repeated and willful violation
    of Section 17.50 of the Rules (reduced from \$10,000 because of
    history of overall compliance).

[^6]: *See, e.g., Buchanan Broadcasting Company, Inc*., 15 FCC Rcd 24363
    (2000); *East Texas Broadcasting Company, Inc.*, 19 FCC Rcd 22491
    (Enf. Bur. 2004).

[^7]: *Pittman Broadcasting Services, LLC*, 19 FCC Rcd 15320 (Enf. Bur.
    2004).

[^8]: *Commonwealth License Subsidiary, LLC*, 18 FCC Rcd 20483 (Enf.
    Bur. 2003).

[^9]: *See FBS Wireless Corporation,* 18 FCC Rcd 21018 (Enf. Bur. 2003)
    *petition for reconsideration pending*; *Truth Broadcasting
    Corporation,* 17 FCC Rcd 24376 (Enf. Bur. 2002).

[^10]: *Forfeiture Order at 15449.*

[^11]: *See e.g. Johnson Enterprises,* 19 FCC Rcd 14457 (Enf. Bur.
    2004); and *Union Broadcasting, Inc.*, 19 FCC Rcd 18588 (Enf. Bur.
    2004).

[^12]: 4M of Richmond cites *FTP Corporation,* 19 FCC Rcd 15350 (Enf.
    Bur. 2004) and *Horne Radio, LLC,* 19 FCC Rcd 6055 (Enf. Bur. 2004)
    as examples. Nothing in these cases, however, establishes that 4M of
    Richmond's overpower violations were minor. In both *FTP* and *Home
    Radio*, FCC agents observed overpower operation on two occasions. By
    contrast, FCC agents observed overpower operation by 4M of Richmond
    over a three day period. Furthermore, even a single episode of
    overpower operation is sufficient to warrant imposition of the full
    \$4,000 base forfeiture amount. *See, e.g., Pilgrim Communications,
    Inc.*, 19 FCC Rcd 8877 (Enf. Bur. 2004), *application for review
    pending*.

[^13]: Under 47 U.S.C. § 503(b)(6)(A), in the case of broadcast
    licensees, a forfeiture cannot be imposed if the violation charged
    occurred "more than 1 year prior to the date of issuance of the
    required notice or notice of apparent liability," or "prior to the
    date of commencement of the current term of such license, whichever
    is earlier." Since the *NAL* was issued on November 4, 2002, within
    one year following the August 2002 violation and well before the
    expiration of the license term, the *NAL* was issued in a timely
    manner. *See, e.g., KM Radio of St. Johns, L.L.C.* 19 FCC Rcd. 5847
    (2004) (finding that, while the Commission was barred from issuing
    an *NAL* for unauthorized construction that occurred prior to
    commencement of the station's current license term, the Commission
    was not barred from issuing a timely NAL for unauthorized operation
    occurring within the current license term).

[^14]: The Norfolk Office agent reported that WLEE's station logs showed
    the following reading: a) Saturday, 8/17/02, from 12:10 AM to 6:32
    PM: 26-28 W; b) Saturday, 8/17/02, from 8:02 PM to 9:10 PM: 30-37 W;
    c) Sunday, 8/18/02, from 8:10 PM to 11:10 PM: 937-945 W; d) Monday,
    8/19/02 from 12:10 AM to 6:10 AM: 933-940 W; and e) Monday, 8/19/01
    from 8:02 PM to 9:56 PM: 27-37 W.

[^15]: AM stations must not operate with over 105% of authorized power
    no matter the mode of operation. *See* 47 C.F.R. § 73.1560.

[^16]: *See Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332640001 (Enf. Bur., Norfolk Office, released November 4, 2002)
    at ¶ 4.

[^17]: 47 U.S.C. § 503(b)(2)(D).

[^18]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^19]: 47 C.F.R. § 1.115(g).

[^20]: 47 U.S.C. § 504(a).

[^21]: *See* 47 C.F.R. § 1.1914.