Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Number EB-05-SJ-025     |
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| A Radio Company, Inc.            | ) | NAL/Acct. No.200632680001    |
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| Licensee of Station WEGA         | * | FRN 0010555654               |
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| P.O. Box 1488                    | * |                              |
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| Vega Baja, PR 00694              | ) |                              |
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| Facility ID \# 69853             | * |                              |
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## FORFEITURE ORDER

**Adopted:** November 1, 2006 **Released:** November 3, 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 fifteen thousand dollars (\$15,000) to A
    Radio Company, Inc. ("A Radio"), licensee of AM radio station WEGA
    in Vega Baja**,** Puerto Rico, for willful violation of Sections
    73.49 and 73.3526 of the Commission's Rules ("Rules") and willful
    and repeated violation of Section 73.1350(a) of the Rules.[^1] The
    noted violations involve A Radio's failure to enclose an antenna
    tower having radio frequency potential at the base within an
    effective locked fence, its failure to make available a complete
    public inspection file, and its failure to operate its station in
    accordance with the terms of its station authorization.

**II. BACKGROUND**

2.  On August 25, 2005, in response to a complaint, resident agents from
    the Commission's San Juan Office of the Enforcement Bureau ("San
    Juan Office") conducted an inspection of station WEGA located in
    Vega Baja, Puerto Rico. In response to a request to inspect the
    public file, the station was unable to produce any copies of any
    issues programs lists. The agent observed that the easternmost
    antenna structure, which had radio frequency potential at its base,
    was not enclosed within an effective locked fence. Moreover, the
    agent observed a sizable hole on the right side of the perimeter
    property fence, which would allow access to the property. Station
    WEGA is authorized to utilize three uniform cross section, series
    excited guyed towers. Its station authorization requires that they
    use a two-tower directional array during the day and a three-tower
    directional array at night. The station's consulting engineer stated
    that the station had been operating its antenna system at night
    using the daytime directional parameters for more than one year. The
    consulting engineer provided copies of a report dated May 21, 2005
    and a status report letter dated July 11, 2005, which he had
    provided to the station owner and which explicitly described
    problems with the equipment that switches the directional antenna
    system from daytime to nighttime patterns. The agent found no
    evidence that special temporary authority ("STA") had been sought or
    granted, which would authorize nighttime operation using daytime
    directional parameters.[^2]

3.  On October 25, 2005, the Resident Agent of the San Juan Office
    issued a *Notice of Apparent Liability for Forfeiture* ("*NAL*") in
    the amount of \$15,000 to A Radio.[^3] A Radio filed a response to
    the *NAL* dated January 11, 2006.

**III. DISCUSSION**

4.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the 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*.[^6] In examining A Radio'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.[^7]

5.  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 July 25, 2005, an agent observed that the
    easternmost antenna structure had radio frequency potential at the
    base and that it was not enclosed within any fence. The agent also
    observed a large hole in the right side of the perimeter property
    fence, which would allow access to the antenna structure. Thus, the
    antenna structure was not contained within a protective property
    fence.

6.  In its response to the *NAL*, A Radio does not dispute that its
    tower was not enclosed within a traditional fence and that there was
    a hole in the perimeter property fence. It asserts the nearby sewage
    treatment plant flooded the area, creating a swampy area around the
    tower, which contains leeches and an occasional crocodile. It
    requests that the forfeiture be reduced or cancelled, because this
    swamp serves as an effective locked fence around the tower. It also
    claims it is impossible to maintain an intact perimeter property
    fence because of vandals. Although the swamp[^8] may serve as a
    deterrent to individuals seeking to access the tower, it is not an
    "effective locked fence," as required by the Rules.[^9] Moreover,
    the fact that A Radio cannot prevent vandals from entering its
    property through the hole in the side of the perimeter fence
    highlights the importance of having a fence around its tower.
    Accordingly, we find no basis to cancel or reduce the forfeiture
    associated with this violation.

7.  Section 73.1350(a) of the Rules states that each licensee is
    responsible for maintaining and operating its broadcast station in a
    manner which complies with the technical rules set forth elsewhere
    in this part and in accordance with the terms of the station
    authorization. Station WEGA's authorization requires that they use a
    two-tower directional array during the day and a three-tower
    directional array at night. On July 25, 2005, the station's
    consulting engineer informed an agent that station WEGA had been
    transmitting with the directional daytime pattern at night for more
    than a year.

8.  In its response to the *NAL*, A Radio does not dispute that it
    operated its station in a manner inconsistent with its station
    authorization for more than a year. It states that it inherited the
    station in a state of disrepair and was unaware of this particular
    problem until August 2005 because its consulting agent did not
    forward the consulting engineer's reports. It states once it became
    aware of this problem it took prompt steps to obtain an STA. These
    facts, however, provide no basis to cancel or reduce the forfeiture
    associated with this violation. Employees and contractors for A
    Radio intentionally operated the station on its behalf and did so in
    a manner inconsistent with the station's authorization. Indeed some
    of its contractors had actual knowledge that the station was
    operating inconsistent with the terms of the authorization. The
    "Commission has long held that licensees and other Commission
    regulatees are responsible for the acts and omissions of their
    employees and independent contractors,"[^10] and the Commission has
    "consistently refused to excuse licensees from forfeiture penalties
    where actions of employees or independent contractors have resulted
    in violations."[^11] Moreover, corrective action taken to come into
    compliance with the Rules is expected, and does not nullify or
    mitigate any prior forfeitures or violations.[^12]

9.  Section 73.3526(e) of the Rules requires commercial broadcast
    stations to maintain for public inspection, a file containing
    materials listed in that section.[^13] Section 73.3526(e)(12)
    requires licensees to place in the public inspection file, for each
    calendar quarter, a list of the programs that have provided the
    station's most significant treatment of community issues during the
    preceding three month period.[^14] Copies of these lists must be
    maintained in the file until final action has been taken on the
    station's next renewal application. On July 25, 2005, in response to
    a request to inspect the station's public file, the station could
    not produce any radio issues/programs lists, and there was no
    evidence that these lists had ever been in the public file. In its
    response to the *NAL*, A Radio does not dispute the violation and
    states that the station manager has been trained on public file
    requirements.

10. Finally, A Radio requests that the forfeiture be reduced because it
    is a new licensee and because it acquired the station in serious
    disrepair. We do not find these arguments persuasive. A Radio should
    have researched the station's condition prior to purchasing it and
    could have insisted the previous owner correct any violations prior
    to consummation of the sale. At a minimum, however, A Radio should
    have determined the station's condition after it acquired it and
    should have corrected any violations shortly thereafter. A Radio
    operated the station for almost eight months before the date of the
    inspection and failed to take steps to correct several serious
    violations.

11. We have examined A Radio'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
    Radio willfully violated Sections 73.49 and 73.3526 of the Rules and
    willfully and repeatedly violated Section 73.1350(a) of the Rules.
    We find no basis for cancellation or reduction of the \$15,000
    forfeiture proposed for these violations.

**IV. ORDERING CLAUSES**

12. **ACCORDINGLY,** **IT IS ORDERED** that, pursuant to Section 503(b)
    of the Communications Act of 1934, as amended,[^15] and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules,[^16] A Radio
    Company, Inc. **IS LIABLE FOR A MONETARY FORFEITURE** in the amount
    of \$15,000 for violation of Sections 73.49, 73.1350(a) and 73.3526
    of the Rules.

13. 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.[^17] 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.[^18]

14. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to A
    Radio Company, Inc. at its address of record; and an additional copy
    to A Radio's legal counsel, Audrey Rasmussen, Hall Estell Attorneys
    at Law, 1120 20^th^ St. NW, Suite 700, North Building, Washington,
    DC 20036-3406.

**FEDERAL COMMUNICATIONS COMMISSION**

Dennis P. Carlton

Regional Director, South Central Region

Enforcement Bureau

[^1]: 47 C.F.R. §§ 73.49, 73.1350(a), 73.3526.

[^2]: Station WEGA submitted a request for special temporary authority
    on September 2, 2005 to operate with one non-directional antenna.

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200632680001 (Enf. Bur., San Juan Office, released October 25,
    2005).

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("*Forfeiture Policy Statement*").

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: The agents did note that the area surrounding the tower was
    flooded. However, they did not see leeches or crocodiles during
    their inspection on July 25, 2005.

[^9]: *See Pittman Broadcasting Services, LLC*, 19 FCC Rcd 15320, 15322
    (Enf. Bur. 2004) (determining that marshy conditions or other
    "natural barriers" are not sufficient to constitute compliance with
    Section 73.49).

[^10]: *Eure Family Limited Partnership*, Memorandum Opinion and Order,
    17 FCC Rcd 21861, 21863,-64, para. 7 (2002); *MTD, Inc.,* Memorandum
    Opinion and Order, 6 FCC Rcd 34 (1991)(holding that a company\'s
    reliance on an independent contractor to construct a tower in
    compliance of FCC rules does not excuse that company from a
    forfeiture); *Wagenvoord Broadcasting Co.*, Memorandum Opinion and
    Order, 35 FCC 2d 361 (1972) (holding a licensee responsible for
    violations of FCC rules despite its reliance on a consulting
    engineer); *Petracom of Joplin, L.L.C.*, 19 FCC Rcd 6248 (Enf. Bur.
    2004) (holding a licensee liable for its employee\'s failure to
    conduct weekly EAS tests and to maintain the \"issues/programs\"
    list).

[^11]: *American Paging, Inc. of Virginia*, Notice of Apparent Liability
    for Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf.
    Div., Wireless Tel. Bur. 1997) (quoting *Triad Broadcasting
    Company,* 96 FCC 2d 1235, 1244 (1984).

[^12]: *See Seawest Yacht Brokers*, Forfeiture Order, 9 FCC Rcd 6099
    (1994).

[^13]: 47 C.F.R. § 73.3526(e).

[^14]: 47 C.F.R. § 73.3526(e)(12).

[^15]: 47 U.S.C. § 503(b).

[^16]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4), 73.49, 73.1350(a),
    73.3526.

[^17]: 47 U.S.C. § 504(a).

[^18]: *See* 47 C.F.R. § 1.1914.