**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+-----------------------------------+---+-------------------------------+
| In the Matter of                  | ) | File Number EB-02-NF-124      |
|                                   |   |                               |
| 4M of Richmond Inc., Licensee of  | ) | NAL/Acct. No. 200332640001    |
| WLEE                              |   |                               |
|                                   | ) | FRN 3782182                   |
| 4M Communications Inc., Owner of  |   |                               |
| Antenna Structure 1231421         | ) |                               |
|                                   |   |                               |
| Richmond, Virginia                | ) |                               |
|                                   |   |                               |
|                                   | ) |                               |
+-----------------------------------+---+-------------------------------+

## 

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Released: November 4, 2002

By the Enforcement Bureau, Norfolk Office:

## I. INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    4M of Richmond, Inc., licensee of AM Station WLEE, and 4M
    Communications, Inc., owner of antenna structure 1231421,
    (collectively "4M") apparently liable for a forfeiture in the amount
    of twenty-one thousand dollars (\$21,000) for willful violation of
    Sections 73.49 and 17.50 of the Commission\'s Rules ("Rules"), and
    willful and repeated violation of Section 73.1745(a) of the
    Rules.[^1] Specifically, we find 4M apparently liable for failing to
    enclose its tower with an effective locked fence, failing to comply
    with prescribed antenna structure marking, and exceeding its
    nighttime power limit.

## II. BACKGROUND

2.  4M Communications, Inc. owns antenna structure 1231421 located at
    2516 Inman Avenue, Richmond, Virginia. The Commission Antenna
    Structure Registration ("ASR") database lists the structure height
    as 75.6 meters above ground and prescribes lighting and painting. 4M
    of Richmond, Inc. is the licensee of AM station WLEE, licensed to
    Richmond, Virginia. 4M's license authorizes WLEE to transmit with an
    energized antenna-tower, i.e., antenna-structure 1231421, located at
    2516 Inman Avenue, Richmond, Virginia, with a daytime power limited
    to 1,000 watts and with a nighttime power limited to 13 watts.

3.  On August 19, 2002, an agent of the Commission's Norfolk Field
    Office ("Norfolk Office") inspected the WLEE transmitter site. While
    WLEE was broadcasting with its antenna tower, the fencing around the
    base of the tower had no lock. The antenna structure paint was
    chipped and faded such that the paint no longer conformed to Federal
    Aviation Administration color specifications and rendered the
    contrasting color bands difficult to distinguish from less than
    one-quarter of a mile away, resulting in poor visibility of the
    structure.

4.  After sunset on August 19, 2002, the Norfolk agent observed the
    antenna base current meter measuring current supplied to WLEE's
    antenna tower and calculated the station's power to exceed WLEE's
    authorized nighttime power by more than 200%. On August 20, 2002,
    the agent inspected a portion of the WLEE logs for a three-day
    period. Those logs noted the use of power exceeding authorized
    nighttime power by at least 200% on August 17, 18 and 19, 2002.

5.  On August 20, 2002, a 4M employee stated that ASR information for 4M
    Communications, Inc., and WLEE-license information for 4M of
    Richmond Inc., was correct. Another 4M employee said that the same
    principals owned both 4M Communications and 4M of Richmond. In
    addition, Commission records listed the same address for both 4M
    Communications Inc., and 4M of Richmond Inc. Also, State of Virginia
    Corporation records list identical corporate officers and the same
    address for the two entities.

## III. DISCUSSION

6.  Section 73.49 requires licensees to provide locked and effective
    fencing around antenna structures with radio frequency potential at
    their bases. On August 19, 2002, while WLEE energized its antenna
    tower, its antenna tower base fencing had no lock.

7.  Section 17.50 requires tower owners to clean or repaint their
    antenna structures as often as necessary to maintain good
    visibility. The WLEE antenna structure registration prescribed
    painting with contrasting colors, but on August 19, 2002, the
    structure's paint was chipped and faded and the contrasting color
    bands could not be seen clearly from less than one-quarter of a mile
    away.

8.  Section 73.1745(a) prohibits licensees from operating at times, or
    with modes or power, other than those specified and made part of the
    license. During the nights of August 17, 18, and 19, 2002, WLEE
    exceeded its authorized nighttime power by at least 200%.

9.  Based on the evidence before us, we find 4M willfully[^2] violated
    Sections 73.49 and 17.50 of the Rules by failing to maintain
    effective locked fencing and by failing to clean or repaint its
    antenna structure to maintain good visibility. In addition, 4M
    willfully and repeatedly[^3] violated Section 73.1745(a) of the
    Rules by exceeding nighttime power limits.

10. Pursuant to Section 1.80(b)(4) of the Rules,[^4] the base forfeiture
    amount for failing to maintain effective locked fencing is \$7,000;
    for failing to comply with prescribed marking is \$10,000; and for
    exceeding power limits is \$4,000. In assessing the monetary
    forfeiture amount, we must also take into account the statutory
    factors set forth in Section 503(b)(2)(D) of the Communications Act
    of 1934, as amended ("Act"), which include 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.[^5] Considering the entire record and applying the
    factors listed above, this case warrants a \$21,000 forfeiture.

## IV. ORDERING CLAUSES

11. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act,[^6] and Sections 0.111, 0.311 and 1.80 of the Rules,[^7] 4M is
    hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
    amount of twenty-one thousand dollars (\$21,000) for willful
    violation of Sections 73.49 and 17.50 of the Rules, and willful and
    repeated violation of Section 73.1745(a) of the Rules by failing to
    maintain effective locked fencing, failing to maintain good antenna
    structure visibility and by exceeding authorized nighttime power
    limits.

12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty days of the release date of this NAL, 4M SHALL PAY the
    full amount of the proposed forfeiture or SHALL FILE a written
    statement seeking reduction or cancellation of the proposed
    forfeiture.

13. Payment of the forfeiture may be made by mailing a check or similar
    instrument, payable to the order of the Federal Communications
    Commission, to the Forfeiture Collection Section, Finance Branch,
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL/Acct. No. and FRN
    referenced above. Requests for payment of the full amount of this
    NAL under an installment plan should be sent to: Chief, Revenue and
    Receivables Operations Group, 445 12th Street, S.W., Washington,
    D.C. 20554.[^8]

14. The response, if any, must be mailed to Federal Communications
    Commission, Office of the Secretary, 445 12^th^ Street SW,
    Washington DC 20554, Attn: Enforcement Bureau-Technical & Public
    Safety Division and MUST INCLUDE THE NAL/Acct. No. referenced above.

15. 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.

16. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Technical &
    Public Safety Division. Your certification should indicate whether
    you, including your parent entity and its subsidiaries, meet one of
    the definitions set forth in the list provided by the FCC's Office
    of Communications Business Opportunities (OCBO) set forth in
    Attachment A of this Notice of Apparent Liability. This information
    will be used for tracking purposes only. Your response or failure to
    respond to this question will have no effect on your rights and
    responsibilities pursuant to Section 503(b) of the Communications
    Act. If you have questions regarding any of the information
    contained in Attachment A, please contact OCBO at (202) 418-0990.

17. IT IS FURTHER ORDERED THAT a copy of this NAL shall be sent by
    regular mail and Certified Mail Return Receipt Requested to 4M of
    Richmond, Inc. / 4M Communications, Inc., 306 West Broad Street,
    Richmond, VA, 23220.

##### FEDERAL COMMUNICATIONS COMMISSION

Joseph P. Husnay

Resident Agent, Norfolk Office, Enforcement Bureau

Attachment

4M of Richmond Inc

4M Communications Inc

306 West Broad Street

Richmond VA 23220

4M of Richmond Inc

4M Communications Inc

306 West Broad Street

Richmond VA 23220

[^1]: 47 C.F.R. §§ 73.49, 17.50 and 73.1745(a).

[^2]: 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 . .
    . ." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387-88
    (1991).

[^3]: 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).

[^4]: 47 C.F.R. § 1.80(b)(4).

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^8]: *See* 47 C.F.R. § 1.1914.