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 Federal  Communications  Commission  DA  04-  2162 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 James  Chladek  WXMC(  AM) 
 New  York,  New  York 


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 File  No.  EB-  02-  PA-  284 
 NAL/  Acct.  No.  200332400008 
 FRN  No.  0006-  1444-  14 


 FORFEITURE  ORDER 
 Adopted:  July  20,  2004  Released:  July  22,  2004 
 By  the  Chief,  Enforcement  Bureau: 


 I.  INTRODUCTION 
 1.  In  this  Forfeiture  Order  (  Order),  we  issue  a  monetary  forfeiture  in  the  amount  of  six  thousand  three  hundred  dollars  ($  6,300)  to  James  Chladek,  (  Chladek),  the  licensee  of  WXMC(  AM), 


 Parsippany-  Troy  Hill,  New  Jersey,  for  willful  violation  of  Section  73.49  of  the  Commissions  Rules  (  Rules).  1  The  noted  violation  involves  failure  to  enclose  each  of  two  of  WXMCs  antenna  structures 
 within  effective  locked  fences. 
 2.  On  December  4,  2002,  the  Commissions  Philadelphia  District  Office  (  Philadelphia  Office)  issued  a  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL)  to  Chladek  for  a  forfeiture  in  the 


 amount  of  seven  thousand  dollars  ($  7,000).  2  Chladek  filed  a  response  to  the  NAL  on  March  7,  2003. 
 II.  BACKGROUND 
 3.  On  July  11,  2002,  agents  from  the  Commissions  New  York,  New  York  District  Office  (  New  York  Office)  and  the  Philadelphia  Office  inspected  four  antenna  structures  used  by  Station 


 WXMC  for  its  directional  antenna  system.  During  the  inspection,  the  agents  observed  that  the  gates  to  the  fences  surrounding  antenna  structures  No.  1224382  (Southeast  Tower)  and  No.  1224378  (Northwest 
 Tower)  were  unlocked  and  the  gate  enclosing  the  entire  WXMC  directional  antenna  system  was  also  unlocked.  The  New  York  Office  and  Philadelphia  Office  agents  informed  the  stations  Chief  Engineer 
 that  the  station  should  take  immediate  action  to  lock  the  gates  and  preclude  access. 
 4.  On  July  12,  2002,  the  agents  returned  to  WXMCs  directional  antenna  system  and  observed  that  the  gate  enclosing  the  array  was  still  unlocked  and  the  gates  surrounding  the  Southeast 


 Tower  and  the  Northwest  Tower  remained  unlocked  as  well.  The  District  Director  of  the  Philadelphia  Office  issued  an  Official  Notice  of  Violation  (  NOV)  on  August  12,  2002,  to  which  Chladeks  Chief 


 1  47  C.  F.  R.    73.49. 
 2  Notice  of  Apparent  Liability  for  Forfeiture,  File  No.  EB-  02-  PA-  284,  NAL/  Acct.  No.  200332400008  (released 
 February  3,  2003).  The  NAL  at  paragraph  7  contained  an  administrative  error,  stating  that  Chladek  willfully  and  repeatedly  violated  Section  1.  903(  a)  of  the  Rules  [emphasis  added,  footnotes  omitted].  As  is  clear  from  paragraph 


 1  of  the  NAL  and  the  discussion  and  analysis  throughout  the  document,  the  NAL  found  that  Chladek  willfully  and  repeatedly  violated  Section  73.  49  of  the  Rules. 
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 Federal  Communications  Commission  DA  04-  2162 
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 Engineer  responded  on  behalf  of  Mr.  Chladek  on  August  19,  2002.  The  NOV  stated,  inter  alia,  that  Chladek  was  in  violation  of  Section  73.49  of  the  Rules  on  July  11  and  July  12,  2002.  In  its  response, 
 Chladek  did  not  deny  the  violation  and  stated  that  the  gates  had  now  been  secured. 
 5.  On  February  3,  2003,  the  Philadelphia  Office  issued  an  NAL  to  Chladek  for  seven  thousand  dollars  ($  7,000)  for  willful  and  repeated  violation  of  Section  73.49  of  the  Rules  on  July  11  and 


 12,  2002.  3  Chladek  responded  to  the  NAL  conceding  that  two  of  the  four  towers  were  without  functioning  locks.  Chladek  points  out,  however,  that  the  inspectors  returned  the  next  day  before  a  full  24 
 hours  had  passed,  and  while  they  again  found  the  gates  unsecured,  Mr.  Altobelli  had  already  purchased  new  locks  and  placed  them  on  the  gates  only  an  hour  or  two  after  the  agents  second  visit.  Chladek 
 argues  that  the  agents  return  less  than  24  hours  after  their  initial  visit  was  an  apparent  overzealous  exercise  of  governmental  enforcement  action  for  the  purpose  of  proving  the  repeated  nature  of  the 
 Section  73.49  violation.  4  Chladek  argues  that  it  should  not  be  cited  for  a  repeated  violation  of  Section  73.49  because  it  replaced  the  locks  within  24  hours  of  the  agents  visit. 


 6.  Chladek  further  argues  that  the  case  should  have  been  closed  without  further  action  because,  as  the  Chief  Engineer  stated  in  response  to  the  NOV,  the  gates  locks  had  already  been  secured. 
 Further  action  in  the  form  of  an  NAL  is,  Chladek  argues,  arbitrary,  capricious  and  inconsistent  with  previous  actions.  Finally,  Chladek  argues  that  it  has  never  been  cited  for  an  infraction  of  the  Rules  and 
 this  factor  should  have  been  taken  into  account  with  the  issuance  of  the  NAL. 
 III.  DISCUSSION 
 7.  The  proposed  forfeiture  amount  in  this  case  was  assessed  in  accordance  with  Section  503(  b)  of  the  Communications  Act  of  1934,  as  amended,  (  Act),  5  Section  1.80  of  the  Rules,  6  and  The 


 Commissions  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)  (  Policy 
 Statement).  In  examining  Chladeks  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  such  other  matters  as  justice  may  require.  7 


 8.  Section  73.49  of  the  Rules  requires  antenna  towers  having  radiofrequency  potential  at  the  base  to  be  enclosed  with  effective  locked  fences  or  other  enclosures.  The  Philadelphia  Office  and  New 
 York  Office  agents  observations  were  that  AM  Station  WXMC  has  radio  frequency  potential  at  the  bases  of  its  antenna  towers,  thereby  requiring  each  to  have  an  effective  locked  fence  or  other  enclosure. 
 At  the  time  of  the  inspections  on  July  11  and  12,  2002,  two  of  the  WXMC  antenna  structures  were  not  enclosed  within  effective  locked  fences  or  other  enclosures  as  required  by  Section  73.49.  Chladek 
 admits  that  it  had  two  antenna  towers  without  effective  locked  enclosures  around  the  bases.  Accordingly,  we  conclude  that  Chladek  willfully  8  violated  Section  73.49  of  the  Rules. 


 3  NAL  at    1,  7. 
 4  Chladek  Response  at  page  3. 
 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 


 (continued....) 
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 9.  Our  finding  of  willfulness  alone  is  sufficient  to  uphold  the  proposed  forfeiture  here.  9  Accordingly,  we  need  not  reach  the  issue  of  whether  it  would  be  inequitable  in  these  circumstances  to 
 treat  the  violation  as  repeated.  10 
 10.  Chladek  also  claims  that  the  NAL  should  not  have  been  issued  because  the  violation  was  corrected  in  response  to  the  NOV  and  similar  situations  must  be  treated  in  a  similar  manner.  Chladek 


 does  not  provide  an  identifiable  reference  in  support  of  its  argument.  11  There  is  nothing  in  the  Act  or  the  Commissions  Rules  that  precludes  an  NAL  where  an  NOV  has  previously  been  issued.  Indeed,  the 
 Commission  has  indicated  issuance  of  an  NAL  after  an  NOV  is  an  appropriate  enforcement  option.  12  Accordingly,  we  find  Chladeks  argument  to  be  without  merit.  We  thoroughly  explain  our  reasoning  for 
 assessing  a  forfeiture  herein.  13 
 11.  Chladek  argues  that  the  NAL  did  not  take  into  account  that  Station  WMXC  has  not  been  cited  for  a  previous  violation  of  the  Commissions  Rules.  Our  records  show  that  Chladeks  Station 


 WMXC  has  never  been  the  subject  of  enforcement  action  for  violation  of  the  Rules.  Accordingly,  we  find  that  a  reduction  of  $700  is  warranted  for  Chladeks  history  of  compliance. 


 12.  We  have  examined  Chladeks  response  to  the  NAL  pursuant  to  the  statutory  factors  above,  and  in  conjunction  with  the  Policy  Statement  as  well.  As  a  result  of  our  review,  we  conclude  that 
 Chladek  willfully  violated  Section  73.49  of  the  Rules,  but  we  find  that  the  forfeiture  should  be  reduced  to  six  thousand  three  hundred  dollars  ($  6,  300). 


 IV.  ORDERING  CLAUSES 
 13.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Section  503(  b)  of  the  Act,  and  Sections  0.111,  0.311  and  1.80(  f)(  4)  of  the  Rules,  14  James  Chladek,  licensee  of  Station  WMXC(  AM),  Parsippany-Troy, 


 New  Jersey.  IS  LIABLE  FOR  A  MONETARY  FORFEITURE  in  the  amount  of  six  thousand  three  hundred  dollars  ($  6,300)  for  his  willful  violation  of  Section  73.49  of  the  Rules. 


 14.  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  may  be  made  by  mailing  a  check  or  similar  instrument,  payable  to  the  order  of  the 


 (...  continued  from  previous  page)  regulation  of  the  Commission  authorized  by  this  Act  .  Southern  California  Broadcasting  Co.,  6  FCC  Rcd  4387 
 (1991).  9 
 The  statutory  standard  for  assessing  a  forfeiture  is  that  the  action  or  omission  in  question  is  willful  or  repeated.  47  U.  S.  C.    503(  b)(  1)(  B). 


 10  As  provided  by  47  U.  S.  C.    312(  f)(  2),  [  t]  he  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.  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).  Southern  California  Broadcasting  Co.,  supra. 
 11  Chladeks  counsel  states  we  compare  Chladeks  circumstances  here  with  those  of  another  broadcast  licensee  of 
 this  law  firm.  the  licensee  responded  to  the  NOV  and  the  field  office  closed  the  case  without  further  enforcement  action.  Chladek  Response  at  page  3. 


 12  See,  e.  g.,  AT&  T  Wireless  Services,  Inc.,  17  FCC  Rcd  7891  (2002),  forfeiture  ordered,  17  FCC  Rcd  21866  (2002). 
 13  Melody  Music,  Inc.,  v.  FCC,  345  F.  2d  730  (1965). 
 14  47  C.  F.  R.    0.111,  0.  311,  1.80(  f)(  4). 
 15  47  U.  S.  C.    504(  a). 
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 Federal  Communications  Commission,  to  the  Federal  Communications  Commission,  P.  O.  Box  73482,  Chicago,  Illinois  60673-  7482.  The  payment  should  reference  NAL/  Acct.  No.  200332400008  and  FRN 
 0006-  1444-  14.  Requests  for  full  payment  under  an  installment  plan  should  be  sent  to:  Chief,  Revenue  and  Receivables  Group,  445  12th  Street,  S.  W.,  Washington,  D.  C.  20554.  16 


 15.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Order  shall  be  sent  by  First  Class  and  Certified  Mail  Return  Receipt  Requested  to  James  Chladek,  20  Waterside  Plaza,  Suite  26,  New  York, 
 New  York,  and  to  its  counsel,  Howard  J.  Braun,  Esq.,  and  Shelley  Sadowsky,  Esq.,  Katten  Muchin  Zavis  Rosenman,  1025  Thomas  Jefferson  Street,  N.  W.,  East  Lobby,  Suite  700,  Washington,  D.  C.  20007-  5201. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 David  H.  Solomon  Chief,  Enforcement  Bureau 


 16  See  47  C.  F.  R.    1.1914. 
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