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 Federal  Communications  Commission 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 

 In  the  Matter  of  )  ) 
 Culpeper  Broadcasting  Corporation  )  File  No.  EB-  99-  CF-  014  WCVA  ) 
 Culpeper,  VA  )  NAL/  Acct.  No.  X3234001 

 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  February  7,  2000  Released:  February  7,  2000 
 By  the  Enforcement  Bureau:  Columbia  Office 

 I.  INTRODUCTION 
 1.  This  is  a  Notice  of  Apparent  Liability  for  monetary  forfeiture  issued  pursuant  to  Section  503(  b)  of  the  Communications  Act  of  1934,  as  amended,  (the  Act)  47  U.  S.  C.    503(  b),  and  Section 
 1.80  of  the  Commission's  Rules  (the  Rules"),  47  C.  F.  R.    1.80,  to  Culpeper  Broadcasting  Corporation,  licensee  of  WCVA,  Culpeper,  Virginia  for  willful  violation  of  Sections  73.49  and 
 73.1560(  a)  of  the  Rules,  47  C.  F.  R.    73.49,  failure  to  maintain  effective  locked  fence  around  the  base  of  each  antenna  having  radio  frequency  potential  at  the  base,  and    73.1560(  a),  failure  to  maintain 
 power  within  90%  to  105%  of  authorized.  The  appropriate  amount  of  forfeiture  for  this  violation  is  determined  to  be  nine  thousand  dollars  ($  9,000). 

 II.  BACKGROUND 
 2.  Station  WCVA,  licensed  to  Culpeper  Broadcasting  Corporation,  was  inspected  on  November  16,  1999  by  Agent  James  Walker  from  the  Commissions  Columbia,  Maryland  Field 
 Office.  During  that  inspection,  it  was  discovered  that  several  vertical  boards  were  missing  from  the  fence  enclosing  the  base  of  the  antenna  tower.  When  a  station  staff  member  was  unable  to  locate  a 
 key  to  the  gate,  he  swung  the  hinge  side  of  the  gate  away  from  the  fence.  His  ease  in  moving  the  gate  and  apparent  confidence  that  it  would  move,  indicated  to  the  inspector  that  he  had  prior  knowledge 
 that  the  gate  hinges  were  not  secured  to  the  fence.  Each  of  these  deficiencies  would  allow  relatively  easy  access  to  the  shunt  excited  antenna  tower,  which  has  radio  frequency  potential  at  the  base. 

 3.  Also  during  that  inspection,  it  was  determined  that  the  station  was  operating  at  942  watts  (138%  of  the  authorized  680  watts).  There  was  a  memo  posted  on  the  stations  transmitting 
 equipment  explaining  how  to  calculate  the  power  and  specifying  the  authorized  power  of  680  watts,  as  well  as  the  upper  and  lower  limits. 

 4.  A  Notice  of  Violation  was  issued  on  November  23,  1999  detailing  these  and  other  violations  noted.  In  a  reply  received  December  9,  1999,  Culpeper  Broadcasting  Corporation  states 
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 that  the  fence  has  been  repaired  and  that  operators  will  be  re-  trained  to  better  understand  the  significance  of  the  findings  after  taking  the  transmitter  readings. 
 III.  DISCUSSION 
 5.  Section  73.49  of  the  Rules  requires  that  antennas  having  radio  frequency  potential  at  the  base  be  enclosed  within  an  effective  locked  fence  or  other  enclosure.  Culpeper  Broadcasting 
 Corporation  failed  to  have  WCVA's  antenna  enclosed  within  an  effective  locked  fence  or  other  enclosure  on  at  least  November  16,  1999.  The  licensees  representative  indicated,  by  a  statement  and 
 his  actions,  a  prior  knowledge  that  the  fence  was  not  secure. 
 6.  Section  73.1560(  a)  requires  that  AM  broadcast  stations  maintain  the  antenna  input  power  within  90%  to  105%  of  the  authorized  power.  The  presence  of  clear  instructions  posted  on  the 
 transmitting  equipment  detailing  the  limits  of  the  operating  power  and  how  to  determine  it  is  evidence  that  the  licensee  was  aware  of  the  requirement. 

 7.  Based  on  the  evidence  before  us,  we  find  that  Culpeper  Broadcasting  Corporation  operated  in  willful  1  violation  of  Sections  73.49  and  73.1560(  a)  of  the  Rules.  The  Commissions 
 Forfeiture  Policy  Statement  12  FCC  Rcd  17087  (1997),  (  Policy  Statement),  sets  the  base  amounts  for  these  violations  at  seven  thousand  dollars  ($  7,000)  for  the  fencing  violation  and  four  thousand 
 dollars  ($  4,000)  for  the  operating  power  violation.  In  assessing  the  monetary  forfeiture  amount,  we  must  also  take  into  account  the  statutory  factors  set  forth  in  Section  503(  b)(  2)(  D)  that  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.  Applying  the  Policy  Statement  and  statutory  factors  to  the  instant  case,  we  believe  that  a  monetary  forfeiture  in  the  amount  of  nine  thousand  dollars  ($  9,000)  is  warranted.  This  amount 
 reflects  a  reduction  for  the  violation  of  section  73.1560(  a),  overpower,  of  50%  due  to  the  stations  history  of  compliance.  However,  due  to  the  safety  issue  concerning  the  lack  of  tower  base  protection, 
 the  base  amount  of  seven  thousand  dollars  ($  7,000)  for  violation  of  Section  73.49  is  appropriate. 

 IV.  ORDERING  CLAUSES 
 8.  Accordingly,  IT  IS  ORDERED  THAT,  pursuant  to  Section  503(  b)  of  the  Communications  Act,  47  U.  S.  C.    503(  b),  and  Section  1.80  of  the  Commission's  Rules,  47  C.  F.  R.   
 1.80,  Culpeper  Broadcasting  Corporation  is  hereby  NOTIFIED  of  its  APPARENTLY  LIABILITY  FOR  A  FORFEITURE  in  the  amount  of  nine  thousand  dollars  ($  9,000)  for  violating  Sections  73.49 
 and  73.1560(  a)  of  the  Commissions  Rules.  The  amount  specified  was  determined  after  consideration  of  the  factors  set  forth  in  Section  503(  b)(  2)(  D)  of  the  Act,  47  U.  S.  C.    503(  b)(  2)(  D)  and  the 
 guidelines  enumerated  in  the  Policy  Statement. 
 9.  IT  IS  FURTHER  ORDERED  THAT,  pursuant  to  Sections  1.80(  f)(  3)  and  (h)  of  the  Commission's  Rules,  47  C.  F.  R.    1.80(  f)(  3)  and  (h),  within  thirty  (30)  days  of  the  date  of  release  of 

 1  Section  312(  f)(  1),  which  also  applies  to  Section  503(  b),  provides:  the  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  or  any  rule  or 

 regulation  of  the  Commission,  authorized  by  this  Act  or  by  a  treaty  ratified  by  the  United  States.  See  Southern  California  Broadcasting  Co.,  6  FCC  Rcd  4387(  1991). 
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 this  NOTICE  OF  APPARENT  LIABILITY,  Culpeper  Broadcasting  Corporation  SHALL  PAY  the  full  amount  of  the  proposed  forfeiture  or  SHALL  FILE  a  written  response  showing  why  the  forfeiture 
 should  be  reduced  or  not  imposed.  Any  written  response  must  include  a  detailed  factual  statement  and  supporting  documentation.  2  Forfeitures  shall  be  paid  by  check,  money  order,  or  credit  card,  with 
 the  appropriate  documentation,  made  payable  to  the  Federal  Communications  Commission.  3  The  remittance  should  be  marked  NAL/  Acct.  No:  X3234001,  and  mailed  to  the  following  address: 
 Federal  Communications  Commission  P.  O.  Box  73482 
 Chicago,  IL  60673-  7482 
 Send  or  mail  any  written  responses  regarding  the  reasons  why  the  forfeiture  should  be  reduced  or  not  imposed  to:  4 
 Office  of  the  Secretary  Federal  Communications  Commission 
 445  12th  Street,  S.  W.  Washington,  D.  C.  20554 
 ATTN:  Enforcement  Bureau  Technical  and  Public  Safety  Division 

 Any  written  response  should  be  marked  NAL/  Acct.  No:  X3234001,  and  should  focus  on  the  mitigating  factors  outlined  in  the  Policy  Statement  and  Section  503  of  the  Act. 
 10.  IT  IS  FURTHER  ORDERED  THAT  this  notice  shall  be  sent,  by  certified  mail,  return  receipt  requested,  to  Culpeper  Broadcasting  Corporation,  c/  o  Robert  A.  DePont,  140  South  Street, 
 Annapolis,  MD  21404.  A  copy  shall  be  sent,  by  first  class  mail,  to  Culpeper  Broadcasting  Corporation,  P.  O.  Box  699,  Culpeper,  VA  22701. 

 FEDERAL  COMMUNICATIONS  COMMISSION 
 Charles  C.  Magin  District  Director 
 Columbia  Office 

 2  Claims  of  inability  to  pay  should  be  supported  by  tax  returns  or  other  financial  statements  prepared 
 under  generally  accepted  accounting  procedures  for  the  most  recent  three-  year  period. 

 3  Requests  for  payment  under  installment  plans  should  be  mailed  to:  Chief,  Credit  &  Debt 
 Management  Center,  445  12th  Street,  S.  W.,  Washington,  D.  C.  20554.  Payment  of  the  forfeiture  in  installments  may  be  considered  as  a  separate  matter  in  accordance  with  Section  1.1914  of  the  Commission's 

 Rules.  Contact  Chief,  Credit  &  Debt  Management  Center  at  (202)  418-  1995  for  more  information  on  payments  by  credit  card. 

 4  For  example,  you  must  support  your  claim  that  you  qualify  as  a  small  business  and  may  therefore  be 
 eligible  for  a  potential  reduction  in  the  amount  of  this  forfeiture  pursuant  to  the  Small  Business  Regulatory  Enforcement  Fairness  Act,  Pub.  L.  104-  121,  110  Stat.  858  (1996).  If  you  have  any  questions  on  this  subject, 

 please  contact  the  Commission's  Office  of  Communications  Business  Opportunities  at  (202)  418-  0990. 
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