Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Number EB-04-TP-098     |
|                                  | * |                              |
| GB Enterprises Communications    | ) | NAL/Acct. No. 200532700011   |
| Corp.                            | * |                              |
|                                  | * | FRN 0009590217               |
| Licensee of WHNR                 |   |                              |
|                                  | * |                              |
| 1505 Dundee Road                 | * |                              |
|                                  | ) |                              |
| Winter Haven, Florida 33884      | * |                              |
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## FORFEITURE ORDER

**Adopted:** January 20, 2006 **Released:** January 24, 2006

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

I.  **INTRODUCTION**

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1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of ten thousand five hundred dollars
    (\$10,500) to GB Enterprises Communications Corp. ("GB
    Enterprises"), licensee of station WHNR in Winter Haven, Florida,
    for willful and repeated violation of Sections 73.49 and 73.3526 of
    the Commission's Rules ("Rules").[^1] The noted violations involve
    GB Enterprises' failure to enclose its antenna structures within
    effective locked fences and failure to maintain a complete public
    inspection file.

**II. BACKGROUND**

2.  On March 22, 2004, agents from the Commission's Tampa, Florida
    Office of the Enforcement Bureau ("Tampa Office") inspected radio
    station WHNR-AM at its studio/transmitter site located on 1505
    Dundee Road, Winter Haven, Florida. The Tampa Office issued a Notice
    of Violation to GB Enterprises for various violations of the Rules,
    including violations of Sections 73.49 and 73.3526, for failing to
    enclose its antenna structures within effective locked fences and
    failing to maintain a complete public inspection file.[^2] GB
    Enterprises responded to the Notice of Violation on November 29,
    2004 and claimed to have corrected the noted violations.

3.  On January 13, 2005, agents from the Tampa Office inspected radio
    station WHNR-AM at its studio/transmitter site located on 1505
    Dundee Road, Winter Haven, Florida. At the time of the inspection,
    the station's public file was missing the manual entitled \"The
    Public and Broadcasting\" and its radio issues/programs list. The
    agents also observed an approximately one-foot gap between the gate
    and fence of one of the station's antenna structures and a missing
    gate for another structure's fence.

4.  On August 30, 2005, the District Director of the Commission's Tampa
    Field Office of the Enforcement Bureau ("Tampa Office") issued a
    *Notice of Apparent Liability for Forfeiture* ("*NAL*") in the
    amount of \$10,500 to GB Enterprises.[^3] GB Enterprises filed a
    response to the *NAL* on September 4, 2005, stating that it had
    corrected the violations cited in the *NAL*.[^4]

**III. DISCUSSION**

5.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the 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) ("*Forfeiture Policy Statement*"). In examining GB
    Enterprises' 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.[^7]

6.  Section 73.49 of the Rules requires that antenna towers having radio
    frequency potential at the base must 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 March 22, 2004, agents from the Tampa Office
    inspected WHNR's three antenna structure array and found that the
    fences surrounding antenna structures one and two were not locked
    and that those fences had fallen down in several places. In response
    to the Notice of Violation, GB Enterprises stated that it did not
    know how the fences became damaged and that it repaired the fences
    shortly after the inspection. However, it also stated in its
    response that, following those repairs, its fences were damaged by
    hurricanes and that the additional repairs would be completed soon.
    On January 13, 2005 agents from the Tampa Office again inspected
    WHNR's three antenna structure array and noticed that the fences
    surrounding antenna structures one and two appeared similar to their
    condition on March 22, 2004, except that there were locks and chains
    attached to the gates. The agents also observed that the fence
    surrounding antenna structure three was missing its gate and that
    there was an approximately one-foot gap between the gate and the
    fence surrounding antenna structure two. Because the fences
    surrounding the antenna structures had large gaps and/or missing
    gates, the station's antenna structures were not enclosed within
    effective locked fences. Moreover, the agents observed that there
    was no protective property fence surrounding the perimeter of the
    property. GB Enterprises does not deny the violations noted in the
    NAL and merely states that the fences have been repaired. Thus,
    based on the evidence, we find that GB Enterprises willfully[^8] and
    repeatedly[^9] violated Section 73.49 of the Rules by failing to
    enclose its station's antenna structures within effective locked
    fences or other enclosures.

7.  Section 73.3526 of the Rules requires AM and FM broadcast stations
    to maintain for public inspection a public inspection file
    containing the material, relating to that station, described in
    paragraphs (e)(1) through (e)(10), (e)(12), (e)(13), and (e)(14) of
    this section.[^10] On March 22, 2004, agents from the Tampa Office
    requested to inspect the station's public file. The public file was
    missing the written designation of the chief operator, the most
    recent ownership report, the Political File, the "The Public and
    Broadcasting" manual, and the radio issues/programs list. On January
    13, 2005, agents from the Tampa Office again found that station's
    public file was incomplete. The file was missing the most recent
    version of "The Public and Broadcasting" manual and the radio
    issues/programs list. In its response to the *NAL*, GB Enterprises
    does not deny any of these facts and merely states that the
    station's public file has been updated and contains all of the
    required information. Thus, based on the evidence, we find that GB
    Enterprises willfully and repeatedly violated Section 73.3526 of the
    Rules by failing to make available a complete public inspection
    file.

8.  We have examined GB Enterprises' response to the *NAL* pursuant to
    the statutory factors above,[^11] and in conjunction with the
    *Forfeiture Policy Statement*. We find no basis for cancellation or
    reduction of the \$10,500 forfeiture proposed for these violations.

**IV. ORDERING CLAUSES**

9.  **ACCORDINGLY,** **IT IS ORDERED** that, pursuant to Section 503(b)
    of the Communications Act of 1934, as amended,[^12] and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules,[^13] GB
    Enterprises Communications Corp. **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of \$10,500 for violation of Sections
    73.49 and 73.3526 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.[^14] 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: Associate Managing Director, Financial
    Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C.
    20554.[^15]

11. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    GB Enterprises Communications Corp. at its address of record.

**FEDERAL COMMUNICATIONS COMMISSION**

Dennis P. Carlton

Regional Director, South Central Region

Enforcement Bureau

[^1]: 47 C.F.R. §§ 73.49, 73.3526.

[^2]: *Notice of Violation*, NOV No. V20043270006 (Enf. Bur., Tampa
    Office, May 5, 2004).

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200532700011 (Enf. Bur., Tampa Office, released August 30, 2005).

[^4]: The Tampa Office did not receive this response until December 15,
    2005.

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

[^9]: The 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." 47 U.S.C. § 312(f)(2).

[^10]: 47 C.F.R. § 73.3526.

[^11]: Although GB Enterprises did not request reduction or cancellation
    of its proposed forfeiture, we note that corrective action taken to
    come into compliance with the Rules and cooperation with agents is
    expected, and does not nullify or mitigate any prior forfeitures or
    violations. *See Seawest Yacht Brokers*, Forfeiture Order, 9 FCC Rcd
    6099 (1994).

[^12]: 47 U.S.C. § 503(b).

[^13]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^14]: 47 U.S.C. § 504(a).

[^15]: *See* 47 C.F.R. § 1.1914.