**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-07-TP-247       |
|                                  |   |                                 |
| Black Crow Radio, LLC            | ) | NAL/Acct. No.: 200832700018     |
|                                  |   |                                 |
| Licensee of AM Broadcast Station | ) | FRN: 0005816590                 |
| WNDB                             |   |                                 |
|                                  | ) |                                 |
| Daytona Beach, FL                |   |                                 |
|                                  | ) |                                 |
| Facility ID 10342                |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER {#forfeiture-order .unnumbered}

**Adopted:** November 13, 2008 **Released:** November 17, 2008

By the Regional Director, South Central Region, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of six thousand four hundred dollars
    (\$6,400) to Black Crow Radio, LLC, ("Black Crow"), licensee of AM
    Broadcast Station WNDB, in Daytona Beach, Florida, for willful and
    repeated violation of Sections 73.44(b) and 73.49 of the
    Commission\'s Rules ("Rules").[^1] The noted violations involve
    Black Crow's failure to ensure that emissions removed by 60 kHz to
    75 kHz from the WNDB fundamental frequency of 1150 kHz are
    attenuated 65 dB below the unmodulated carrier level and failure to
    maintain effective locked fences around the bases of two antenna
    towers.

# BACKGROUND

2.  On February 26, 2008, in response to a complaint that AM station
    WNDB was causing interference to stations on 1070 KHz and 1230 KHz
    and general interference up and down the AM band, agents from the
    Commission's Tampa Office of the Enforcement Bureau ("Tampa Office")
    monitored station WNDB on its licensed frequency of 1150 KHz with a
    standard car radio and readily observed that the station could be
    heard up and down the AM band. The agents also heard station WNDB
    intermittently on stations 1070 KHz and 1230 KHz. The agents
    measured the spurious emissions with a calibrated spectrum analyzer
    and loop antenna and determined that WNDB was attenuated 33 dB at
    +/- 60 KHz referenced to the WNDB carrier on 1150 kHz.

3.  Still on February 26, 2008, agents from the Tampa Office inspected
    the main studio of station WNDB. The agents informed the station of
    the harmful interference they were causing and advised that they
    would need to correct the problem or shut down within three
    hours.[^2] The inspection continued at the transmitter site where
    the agents observed that the station's two AM antenna series fed
    towers were not enclosed within effective locked fences. One tower
    fence did not have a locking mechanism, and the other tower fence
    had a broken locking mechanism. The property's perimeter fence gate
    was open and lying down beside the driveway. The station's chief
    engineer stated the perimeter fence gate had been pushed down for
    about two weeks. The station's chief engineer also stated that the
    station would fix the two base fences right away. Because the
    station's chief engineer turned the station transmitter off and on
    and made some other adjustments during the inspection, the agents
    took another brief measurement after the inspection. The agents
    informed the chief engineer that the spurious emission problem
    remained and reminded him that the problem had to be fixed within 3
    hours or the station would have to cease transmitting.

4.  On February 28, 2008, agents from the Tampa Office returned to the
    Daytona Beach area and monitored AM Broadcast Station WNDB with a
    standard car radio. They again observed that the station could be
    heard up and down the AM band, but to a lesser degree than before.
    The agents also heard station WNDB intermittently on stations 1070
    KHz and 1230 KHz. The agents measured the spurious emissions with a
    calibrated spectrum analyzer and loop antenna and determined that
    WNDB was attenuated 41 dB at +/- 60 KHz referenced to the WNDB
    carrier on 1150 kHz. The agents also observed that the fences
    surrounding the station's two AM towers were in the same condition
    as on February 26, 2008. The agents also observed that the perimeter
    property fence gate still remained open and lying on the ground.

5.  On September 24, 2008, the Tampa Office issued a *Notice of Apparent
    Liability for Forfeiture* to Black Crow in the amount of
    twenty-three thousand dollars (\$23,000) for the apparent willful
    and repeated violation of Sections 11.35(a), 73.44(b), 73.49 and
    73.3526 of the Rules.[^3] In response to the *NAL,* Black Crow
    admitted that it violated Sections 11.35(a) and 73.3526 of the Rules
    and submitted a payment in the amount of \$12,000 for those
    violations. Black Crow, however, requested cancellation or reduction
    of the remaining \$11,000 proposed forfeiture.

# DISCUSSION

6.  The proposed forfeiture amount in this case was 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) ("*Forfeiture
    Policy Statement*"). In examining Black Crow'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 73.44(a) of the Rules requires that "\[t\]he emissions of
    stations in the AM service shall be attenuated in accordance with
    the requirements specified in paragraph (b) of this section."[^7]
    Section 73.44(b) of the Rules requires that "\[e\]missions removed
    by 60 to 75 kHz (from the carrier) must be attenuated at least 65 dB
    below the unmodulated carrier level."[^8] On February 26 and 28,
    2008, agents from the Tampa Office observed emissions removed by 60
    kHz to 75 kHz from WNDB's carrier that were attenuated by only 33 dB
    and 41 dB, respectively. On February 26, 2008, agents from the Tampa
    Office twice told the station to correct the spurious emissions
    problem or else cease broadcasting. Black Crow does not dispute that
    it was the source of spurious emissions on February 26 and 28, 2008.
    Thus, based on the evidence before us, we find that Black Crow
    willfully[^9] and repeatedly[^10] violated Section 73.44(a) of the
    Rules by transmitting unauthorized emissions on February 26, 27, and
    28, 2008.

8.  Although Black Crow does not dispute the underlying facts of the
    violation, it, nevertheless, requests cancellation or reduction of
    the proposed forfeiture. Black Crow states that it does not have the
    necessary equipment to detect spurious emissions and relies on
    annual measurements and inspections by its consulting engineering
    firm to ensure compliance with Section 73.44(a) of the Rules. Black
    Crow states that the station was last inspected in September 2007
    and was not causing spurious emissions at that time. Black Crow
    claims that vandals may have damaged their transmission equipment,
    thus creating the spurious emissions problem. Black Crow also claims
    that it reduced power on February 27, 2008 and was unaware that the
    reduction in power had not solved the spurious emissions problem.
    Finally, Black Crow asserts that it contacted the manufacturer of
    its transmitter on February 26, 2008, ordered new parts on February
    27, 2008, and repaired the transmitter late on February 28, 2008,
    after the agents' second observation.

9.  We find that Black Crow has failed to raise any arguments that would
    warrant reduction or cancellation of the proposed forfeiture. Black
    Crow was required to cease operations on February 26, 2008 and
    remain off the air until it corrected the violation. In other words,
    Black Crow should not have resumed operations until it could confirm
    that the problem had been remedied. Although reducing power was a
    reasonable precaution, without taking measurements, Black Crow had
    no way of knowing whether it was continuing to emit spurious
    emissions in violation of Section 73.44(a) of the Rules and,
    therefore, should not have resumed operations. In addition, although
    Black Crow claims it did not have the necessary equipment to detect
    spurious emissions, it could have monitored the AM band with a
    normal receiver and determined that the station still could be heard
    up and down the band, thus proving the problem had not been resolved
    by its reduction in power. Finally, Black Crow's post-inspection
    corrective action taken to come into compliance with the Rules was
    expected, and does not nullify or mitigate any prior forfeitures or
    violations.[^11]

10. Section 73.49 of the Rules[^12] requires antenna towers having radio
    frequency potential at the base (series fed, folded unipole, and
    insulated base antennas) to be enclosed within effective locked
    fences or other enclosures. Individual tower fences need not be
    installed if the towers are contained within a protective property
    fence. On February 26 and 28, 2008, agents from the Tampa Office
    observed that both AM antenna series fed towers were not enclosed
    within effective locked fences and were the type of antennas which
    have radio frequency potential at their base. One of the tower
    fences had no locking mechanism, and the other had a broken locking
    mechanism, thus providing ready access to the base of the towers. In
    addition, the property's perimeter fence gate was open and lying on
    the ground. The station was aware that the perimeter gate had been
    broken for about two weeks prior to the inspection and was reminded
    of the base fence problems on February 26, 2008. Black Crow does not
    dispute any of these facts. Thus, based on the evidence before us,
    we find that Black Crow willfully and repeatedly violated Section
    73.49 of the Rules by failing to enclose its AM towers within
    effective locked fences or other enclosures on February 26 and 28,
    2008.

11. Although Black Crow does not dispute the facts underlying the
    violation, it, nevertheless, requests cancellation or reduction of
    the proposed forfeiture. Black Crow asserts its property has been
    plagued by vandals and provided one police report filed prior to the
    inspection and several reports filed after the inspection as
    evidence of the problem. It states that it replaced the fence in
    November 2007. It also claims that the fence was vandalized "just
    prior to the FCC inspection," it had been evaluating solutions to
    the vandalism problem but had not repaired the fence prior to the
    inspection, it ordered parts for the fence on February 27, 2008, and
    it had the fence repaired by February 29, 2008.

12. We find that Black Crow has failed to provide evidence which would
    cause us to reduce or cancel the proposed forfeiture. Although
    vandals may have damaged the base or perimeter property fences,
    according to the station's chief engineer, the perimeter gate had
    been broken for about two weeks prior to the inspection. Given that
    Black Crow was able to repair the fence within two days after the
    inspection, it had ample time prior to the inspection in which to
    repair the fence after it first became aware of the damage. While
    Black Crow asserts it was considering more elaborate efforts to
    address the vandalism problem, such as motion detecting lights,
    alarms and fence supports, prior to the inspection, consideration of
    these additional measures did not prevent Black Crow from addressing
    the immediate needs of the existing fence. Furthermore, it is well
    established that post-inspection corrective action taken to come
    into compliance with the Rules is expected, and does not nullify or
    mitigate any prior forfeitures or violations.[^13] Similarly,
    although Black Crow replaced the fence in November 2007, due to
    damage caused by vandals, such action was presumably necessary to
    correct a prior fencing violation and does not excuse Black Crow
    from continuing compliance with the Rules.

13. Finally, Black Crow requests a reduction of the proposed forfeiture,
    because it claims it has never been charged by the Commission with a
    violation since it began operating thirteen years ago. We have
    reviewed the record and reduce the forfeiture to \$6,400 based on
    Black Crow's history of compliance with the Rules.

14. We have examined Black Crow's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that a
    reduction of the proposed forfeiture to \$6,400 is warranted, based
    on Black Crow's history of compliance with the Rules.

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III. **ORDERING CLAUSES**

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15. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311 and 1.80(f)(4) of the Commission's Rules, Black Crow Radio,
    LLC **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of six
    thousand four hundred dollars (\$6,400) for violation of Sections
    73.44(a) and 73.49 of the Rules.[^14]

16. 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 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.
    Black Crow will also send electronic notification on the date said
    payment is made to SCR-Response@fcc.gov.

17. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to Black
    Crow Radio, LLC at its address of record and to its counsel,
    David G. O'Neil, Rini Coran PC, 1615 L Street NW, Suite 1325,
    Washington, DC 20036.

FEDERAL COMMUNICATIONS COMMISSION

Dennis P. Carlton

Regional Director, South Central Region

Enforcement Bureau

[^1]: 47 C.F.R. §§ 73.44(b), 73.49. We also find that Black Crow
    willfully and repeatedly violated Sections 11.35(a) and 73.3526 of
    the Rules. Black Crow made a payment of \$12,000 for these
    violations, and are not at issue in this *Forfeiture Order*.

[^2]: *See* 47 C.F.R. § 73.1350(d) (if not in compliance with the
    technical rules or the station authorization, and the condition is
    not listed in Section 73.1350(e) of the Rules, broadcast operation
    must be terminated within three hours).

[^3]: *N**otice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200832700018 (Enf. Bur., Tampa Office, September 24, 2008)
    ("*NAL*").

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 503(b)(2)(E).

[^7]: 47 C.F.R. § 73.44(a).

[^8]: 47 C.F.R. § 73.44(b).

[^9]: 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
    ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^10]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues 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). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^11]: *See Seawest Yacht Brokers*, Forfeiture Order, 9 FCC Rcd 6099
    (1994).

[^12]: 47 C.F.R. § 73.49.

[^13]: *See supra* note 11.

[^14]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4),
    73.44(a), 73.49.

[^15]: 47 U.S.C. § 504(a).