**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. EB-02-PA-284        |
|                                  | *) |                              |
| James Chladek                    | ** | NAL/Acct. No. 200332400008   |
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| WXMC(AM)                         | *  | FRN No. 0006-1444-14         |
|                                  | *) |                              |
| New York, New York               | ** |                              |
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+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: July 20, 2004 Released: July 22, 2004**

By the Chief, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of six thousand three hundred dollars
    (\$6,300) to James Chladek, ("Chladek"), the licensee of WXMC(AM),
    Parsippany-Troy Hill, New Jersey, for willful violation of Section
    73.49 of the Commission's Rules ("Rules").[^1] The noted violation
    involves failure to enclose each of two of WXMC's antenna structures
    within effective locked fences.

2.  On December 4, 2002, the Commission's Philadelphia District Office
    ("Philadelphia Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Chladek for a forfeiture in the amount of
    seven thousand dollars (\$7,000).[^2] Chladek filed a response to
    the *NAL* on March 7, 2003.

# BACKGROUND

3.  On July 11, 2002, agents from the Commission's New York, New York
    District Office ("New York Office") and the Philadelphia Office
    inspected four antenna structures used by Station WXMC for its
    directional antenna system. During the inspection, the agents
    observed that the gates to the fences surrounding antenna structures
    No. 1224382 (Southeast Tower) and No. 1224378 (Northwest Tower) were
    unlocked and the gate enclosing the entire WXMC directional antenna
    system was also unlocked. The New York Office and Philadelphia
    Office agents informed the station's Chief Engineer that the station
    should take immediate action to lock the gates and preclude access.

4.  On July 12, 2002, the agents returned to WXMC's directional antenna
    system and observed that the gate enclosing the array was still
    unlocked and the gates surrounding the Southeast Tower and the
    Northwest Tower remained unlocked as well. The District Director of
    the Philadelphia Office issued an Official Notice of Violation
    ("*NOV*") on August 12, 2002, to which Chladek's Chief Engineer
    responded on behalf of Mr. Chladek on August 19, 2002. The *NOV*
    stated, *inter alia*, that Chladek was in violation of Section 73.49
    of the Rules on July 11 and July 12, 2002. In its response, Chladek
    did not deny the violation and stated that the gates had now been
    secured.

5.  On February 3, 2003, the Philadelphia Office issued an *NAL* to
    Chladek for seven thousand dollars (\$7,000) for willful and
    repeated violation of Section 73.49 of the Rules on July 11 and 12,
    2002.[^3] Chladek responded to the *NAL* conceding that two of the
    four towers were without functioning locks. Chladek points out,
    however, that the inspectors returned the next day before a full 24
    hours had passed, and while they again found the gates unsecured,
    Mr. Altobelli had already purchased new locks and placed them on the
    gates only an hour or two after the agents' second visit. Chladek
    argues that the agents' return less than 24 hours after their
    initial visit was an "apparent overzealous exercise of governmental
    enforcement action for the purpose of proving the 'repeated' nature
    of the Section 73.49 violation."[^4] Chladek argues that it should
    not be cited for a repeated violation of Section 73.49 because it
    replaced the locks within 24 hours of the agents' visit.

6.  Chladek further argues that the case should have been closed without
    further action because, as the Chief Engineer stated in response to
    the *NOV*, the gates' locks had already been secured. Further action
    in the form of an *NAL* is, Chladek argues, arbitrary, capricious
    and inconsistent with previous actions. Finally, Chladek argues that
    it has never been cited for an infraction of the Rules and this
    factor should have been taken into account with the issuance of the
    *NAL*.

# discussion

7.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended, ("Act"),[^5] Section 1.80 of the Rules,[^6] 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) ("*Policy
    Statement*"). In examining Chladek'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 such other matters as justice may
    require.[^7]

8.  Section 73.49 of the Rules requires antenna towers having
    radiofrequency potential at the base to be enclosed with effective
    locked fences or other enclosures. The Philadelphia Office and New
    York Office agents' observations were that AM Station WXMC has radio
    frequency potential at the bases of its antenna towers, thereby
    requiring each to have an effective locked fence or other enclosure.
    At the time of the inspections on July 11 and 12, 2002, two of the
    WXMC antenna structures were not enclosed within effective locked
    fences or other enclosures as required by Section 73.49. Chladek
    admits that it had two antenna towers without effective locked
    enclosures around the bases. Accordingly, we conclude that Chladek
    willfully[^8] violated Section 73.49 of the Rules.

9.  Our finding of "willfulness" alone is sufficient to uphold the
    proposed forfeiture here.[^9] Accordingly, we need not reach the
    issue of whether it would be inequitable in these circumstances to
    treat the violation as "repeated."[^10]

10. Chladek also claims that the *NAL* should not have been issued
    because the violation was corrected in response to the *NOV* and
    similar situations must be treated in a similar manner. Chladek does
    not provide an identifiable reference in support of its
    argument.[^11] There is nothing in the Act or the Commission's Rules
    that precludes an *NAL* where an *NOV* has previously been issued.
    Indeed, the Commission has indicated issuance of an *NAL* after an
    *NOV* is an appropriate enforcement option.[^12] Accordingly, we
    find Chladek's argument to be without merit. We thoroughly explain
    our reasoning for assessing a forfeiture herein.[^13]

11. Chladek argues that the *NAL* did not take into account that Station
    WMXC has not been cited for a previous violation of the Commission's
    Rules. Our records show that Chladek's Station WMXC has never been
    the subject of enforcement action for violation of the Rules.
    Accordingly, we find that a reduction of \$700 is warranted for
    Chladek's history of compliance.

12. We have examined Chladek's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that
    Chladek willfully violated Section 73.49 of the Rules, but we find
    that the forfeiture should be reduced to six thousand three hundred
    dollars (\$6,300).

# ordering clauses

13. 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,[^14]
    James Chladek, licensee of Station WMXC(AM), Parsippany-Troy, New
    Jersey. **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of six
    thousand three hundred dollars (\$6,300) for his willful violation
    of Section 73.49 of the Rules.

14. 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.[^15] Payment may 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 reference NAL/Acct. No. 200332400008 and FRN
    0006-1444-14. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^16]

15. IT **IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to James
    Chladek, 20 Waterside Plaza, Suite 26, New York, New York, and to
    its counsel, Howard J. Braun, Esq., and Shelley Sadowsky, Esq.,
    Katten Muchin Zavis Rosenman, 1025 Thomas Jefferson Street, N.W.,
    East Lobby, Suite 700, Washington, D.C. 20007-5201.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 73.49.

[^2]: *Notice of Apparent Liability for Forfeiture*, File No.
    EB-02-PA-284, NAL/Acct. No. 200332400008 (released February 3,
    2003). The *NAL* at paragraph 7 contained an administrative error,
    stating that "Chladek willfully and repeatedly violated Section
    *1.903(a)* of the Rules \[emphasis added, footnotes omitted\]." As
    is clear from paragraph 1 of the *NAL* and the discussion and
    analysis throughout the document, the *NAL* found that Chladek
    willfully and repeatedly violated Section 73.49 of the Rules.

[^3]: NAL at ¶¶ 1, 7.

[^4]: Chladek Response at page 3.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 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,' ... 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
    ...." *Southern California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^9]: The statutory standard for assessing a forfeiture is that the
    action or omission in question is willful *or* repeated. 47 U.S.C. §
    503(b)(1)(B).

[^10]: As provided by 47 U.S.C. § 312(f)(2), "\[t\]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."
    The *Conference Report* for Section 312(f)(2) indicates that
    Congress intended to apply this definition to Section 503 of the Act
    as well as Section 312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51
    (1982). *Southern California Broadcasting Co., supra.*

[^11]: Chladek's counsel states "we compare Chladek's circumstances here
    with those of another broadcast licensee of this law firm....the
    licensee responded to the NOV...and the field office closed the case
    without further enforcement action." Chladek Response at page 3.

[^12]: *See, e.g*., *AT&T Wireless Services, Inc.*, 17 FCC Rcd 7891
    (2002), *forfeiture ordered,* 17 FCC Rcd 21866 (2002).

[^13]: *Melody Music, Inc., v. FCC*, 345 F.2d 730 (1965).

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^15]: 47 U.S.C. § 504(a).

[^16]: *See* 47 C.F.R. § 1.1914.