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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Capstar Radio Operating Company ) File Number EB-02-LA-225
Licensee of station KIXW-AM ) NAL/Acct. No. 200332900001
Registered Owner of ASR Number ) FRN 0005-7937-16
Apple Valley, California )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 30, 2002
By the Enforcement Bureau, Los Angeles Office:
1. In this Notice of Apparent Liability for
Forfeiture, we find that Capstar Radio Operating Company
(``Capstar''), the registered owner of Antenna Structure
Registration (``ASR'') number 1018351 in Apple Valley,
California apparently willfully and repeatedly violated
Sections 17.4(g) and 17.57 of the Federal Communications
Commission (``FCC'' or ``Commission'') Rules and Regulations
(``Rules'') by failing to display the antenna structure
registration number near the base of the antenna structure
and by failing to notify the Commission of a change in
ownership information.1 We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended
(``Act''),2 that Capstar is apparently liable for forfeiture
in the amount of five thousand dollars ($5,000).
2. On June 5, 2002, agents from the FCC Enforcement
Bureau's Los Angeles Field Office inspected the tower used
by Capstar for station KIXW-AM in Apple Valley, California.
According to the ASR for the tower, painting and lighting
must be maintained on the structure in accordance with FAA
Circular Number 70/7460-1J, chapters 3, 4, 5 and 13. These
requirements include red lights at night, and aviation
orange and white paint for daytime marking. At the time of
the inspection on June 5, 2002, the FCC's ASR database
listed Ruby Broadcasting, Inc., as the registered owner of
the antenna structure number 1018351.
3. On June 5, 2002, no ASR number was displayed at
the base of the tower. The antenna structure had been
painted with seven bands of orange and white paint, however
the paint was faded, chipped and peeling, and oxidized. The
fencing at the base of the uni-pole tower was in disrepair,
with the northwest corner post loose and tilting over.
4. Section 503(b) of the Act provides that any person
who willfully or repeatedly fails to comply substantially
with the terms and conditions of any license, or willfully
or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the
Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has
been interpreted to mean simply that the acts or omissions
are committed knowingly and ``repeated'' means the
commission or omission of the act more than once or for more
than one day.3
5. Section 17.4(g) of the Rules states that the ASR
number must be displayed in a conspicuous place so that it
is readily visible near the base of the antenna structure.
At the time of the inspection, the ASR number was not
6. Section 17.57 of the Rules requires antenna
structure owners to immediately notify the Commission using
FCC Form 854 upon any change in ownership information. At
the time of the inspection, ASR number 1018351 was
registered to Ruby Broadcasting, Inc. Capstar acquired
ownership of this tower in September of 2000, yet as of June
5, 2002, Capstar had failed to notify the Commission of the
change in ownership. On October 11, 2002, Capstar filed the
required updated ownership information for the structure
with the Commission.
7. Based on the evidence before us, we find that on
June 5, 2002, Capstar failed to post the ASR number for the
tower number 1018351, and failed to timely notify the
Commission of the change in ownership of the structure in
willful and repeated violation of Sections 17.4(g) and 17.57
of the Rules.
8. Section 17.50 of the Rules states that ``[a]ntenna
structures requiring painting under this part shall be
cleaned or repainted as often as necessary to maintain good
visibility.'' The Commission's antenna structure
construction, marking and lighting requirements operate in
concert with FAA regulations to ensure that antenna
structures do not present hazards to air navigation. The
ASR for structure 1018351 specifies aviation orange and
white paint for daytime marking, in accordance with chapters
3, 4, 5, and 13 of FAA Circular 70/7460-1J. At the time of
the inspection the paint bands on the tower were faded,
chipped and peeling, and oxidized.
9. Section 73.49 of the Rules states in part that
"[a]ntenna towers having radio frequency potential at the
base (series fed, folded unipole, and insulated base
antennas) must be enclosed within effective locked fences or
other enclosures." The antenna system on the structure is
described on the license for station KIXW as a series-
excited radiator. A "series excited" radiator may also be
described as a "series fed" radiator. The AM transmission
fencing requirements thus apply to this antenna structure.
At the time of the inspection, the fencing at the base of
the structure was in disrepair. Effective base fencing is
an important safety requirement. AM series-fed antenna
structures radiate energy that renders any physical contact
with the antenna structure itself extremely dangerous. In
addition, AM antenna structures are capable of generating
radio frequency fields at the base of the antenna structure
that may exceed the Commission's maximum permissible
exposure guidelines. Effective base fencing is thus
important to prevent possible contact with the radiating
structure and excessive radio frequency radiation exposure.
10. Failure to properly maintain required antenna
structure marking and failure to properly maintain effective
base fencing may result in imposition of a monetary
forfeiture, pursuant to Section 1.80 of the Rules. Capstar
must respond in writing with a statement of corrective
action taken, or to be taken, to ensure ASR number 1018351
is in full compliance with the antenna structure marking and
base fencing Rules.
11. Pursuant to Section 1.80(b)(4) of the Rules and
The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, ("Forfeiture Policy Statement"),4 the base
forfeiture amount for failure to post the antenna structure
registration number is $2,000 and the base forfeiture amount
for failure to file required forms or information is
$3,000.5 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
(``Act''), as amended, which include the nature,
circumstances, extent, and gravity of the violation(s), 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.6 Considering the entire
record and applying the statutory factors listed above, a
$5,000 forfeiture is warranted.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules, Capstar Radio Operating Company, is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
in the amount of five thousand dollars ($5,000.00) for
willful and repeated violation of Sections 17.4(g) and 17.57
of the Rules.7
13. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules, within thirty days of the
release date of this NOTICE OF APPARENT LIABILITY, Capstar
Radio Operating Company, SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
14. 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 must include the FRN and the NAL/Acct. No.
referenced in the caption.
15. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and must include the FRN
and NAL/Acct. No. referenced in the caption.
16. 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
17. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Federal Communications Commission, Chief,
Revenue and Receivables Operations Group, 445 12th Street,
SW, Washington, D.C. 20554.8
18. 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 Federal
Communications Commission, Enforcement Bureau, Technical and
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.
19. IT IS FURTHER ORDERED THAT this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Capstar Radio Operating Company, 2625
S. Memorial Drive, Suite A, Tulsa, OK 74129.
District Director, Enforcement
1 47 C.F.R. §§ 17.4(g) and 17.57.
2 47 U.S.C. § 503(b).
3 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 or any
rule or regulation of the Commission authorized by this
Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991). Section 312(f)(2), which also applies to
Section 503(b), provides: ``[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.
4 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
5 47 C.F.R. § 1.80(b)(4); American Tower Corporation, 16
FCC Rcd 1282 (2001) ($2000 is an appropriate base forfeiture
amount for failure to post the ASR).
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. §§ 0.111, 0.311, 1.80 and 17.4(g) and 17.57.
8 See 47 C.F.R. § 1.1914.