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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number: EB-02-
Nextmedia Operating Inc. ) BF-135
Radio Station WJET (AM) )
Erie, PA ) NAL/Acct.No.
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 28,
By the Resident Agent, Buffalo Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we
find that Nextmedia Operating Inc., (``Nextmedia''), licensee of
AM broadcast station WJET, Erie, Pennsylvania apparently violated
Sections 17.47(a)(1), 17.48(a) and 17.51(a)1 of the Commission's
Rules (``Rules'') by failing to make an observation of the
antenna structure's lights at least once each 24 hours, failing
to notify the Federal Aviation Administration (``FAA'') that the
obstruction lighting was improperly functioning, and failing to
exhibit lighting from sunset to sunrise. We conclude that
Nextmedia. is apparently liable for a forfeiture in the amount of
fifteen thousand dollars ($15,000).
2. On May 30, 2002, the Federal Communications
Commission's (``FCC'') Enforcement Bureau's Buffalo Office
received information that the top beacon on the antenna tower for
radio station WJET in Erie, Pennsylvania was not lit. On May 30,
2002 agent Viglione of the Buffalo Office attempted to contact
station personnel. He left a voice mail message for the station
manager, but received no return call that day. On May 31, 2002
the agent again telephoned the station and spoke with Rick
Rambaldo, the station manager. The agent requested the tower
lighting be inspected. Mr. Rambaldo was also instructed to
notify the FAA if the inspection determined the top beacon was
not functioning. Mr. Rambaldo later that day informed the agent
that the inspection had been completed and that the top beacon
was found to be not functioning. Mr. Rambaldo also informed him
that the FAA had been notified.
3. On June 3, 2002, agent Viglione continued the
investigation on-site, and spoke to Mr. Mark Himler, WJET's chief
engineer. Mr. Himler informed him that the automatic lighting
indicator was not functioning, and that the tower lights would be
checked manually each day until the device was repaired. The
agent also observed that the top beacon was in the process of
4. On June 5, 2002, the Buffalo Office issued a Notice of
Violation to Nextmedia citing these deficiencies. On June 18,
2002, Nextmedia submitted a written reply stating that an
inspection of the tower lights conducted on May 31, 2002 revealed
they were non-operating and the outage was immediately reported
to the FAA. Further inspection by station personnel revealed the
tower lighting monitoring device had been damaged. Nextmedia
stated the tower lights and the tower lighting monitoring device
had since been repaired.
5. Section 17.47(a)(1) of the Rules requires that the
owner of any antenna structure which is registered with the
Commission and has been assigned lighting specifications shall
make an observation of the antenna structure's lights at least
once each 24 hours either visually or by observing an automatic
properly maintained indicator designed to register any failure of
such lights. The tower lighting monitoring device used by radio
station WJET was not properly maintained in that it indicated the
lights were on when in fact the lights were not functioning.
6. Section 17.48(a) requires the owner of an antenna
structure which has been assigned lighting specifications to
report immediately to the nearest Flight Service Station of the
FAA any extinguishment of any top steady burning light or any
flashing obstruction light, regardless of its position on the
antenna structure, that is not corrected within 30 minutes. From
at least May 30, 2002 to May 31, 2002, Nextmedia had not reported
the outage to the FAA.
7. Section 17.51(a) of the Rules requires all red
obstruction lighting shall be exhibited from sunset to sunrise.
Nextmedia failed to exhibit the red obstruction lighting on at
least May 30, 2002.
8. Based on the evidence before us, we find that on May
30, 2002, Nextmedia willfully2 violated Section 17.47(a)(1),
17.48(a) and 17.51(a) of the Rules by failing to make an
observation of the antenna structure's lights at least once each
24 hours either visually or by observing an automatic properly
maintained indicator designed to register failure of such lights,
failing to notify the nearest Flight Service Station of the FAA
of the extinguishment of the top steady burning light that was
not corrected within 30 minutes and failing to exhibit all red
obstruction lighting from sunset to sunrise. The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997), recon. denied, 15 FCC Rcd 303(1999) (``Forfeiture
Policy Statement'')3, sets the base forfeiture amount for failure
to make an observation of the antenna structure's lights at least
once each 24 hours at $2000, failure to notify the nearest Flight
Service Station of the FAA of the extinguishment of the top
steady burning light that was not corrected within 30 minutes at
$3000, and failure to exhibit all red obstruction lighting from
sunset to sunrise at $10,000. In assessing the monetary
forfeiture amount, we must take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Communications
Act of 1934, as amended, (``Act''),4 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. The record reveals that Nextmedia does have
an overall history of compliance, but the violation was
egregious. Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the inflation
adjustments, we believe that a fifteen thousand dollar ($15,000)
monetary forfeiture is warranted
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,5 and Sections 0.111, 0.311 and 1.80 of the
Rules,6 Nextmedia is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of fifteen thousand dollars
($15,000) for violating Sections 17.47(a)(1), 17.48(a) and
17.51(a) of the Rules.
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Nextmedia SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
11. 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. 200232280004, and FRN 0006-1324-19.
12. 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
NAL/Acct. No. 200232280004.
13. 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
14. 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, S.W., Washington,
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Nextmedia Operating Inc., 6312 South Fiddlers Green
Circle, Englewood, CO, 80111.
FEDERAL COMMUNICATIONS COMMISSION
David A. Viglione
1 47 C.F.R. §§ 17.47(a)(1), 17.48(a), and 17.51(a)
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
``willful'', when used with reference to commission or omission
of any act, means that 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 Red 4387 (1991)
347 C.F.R. § 1.80.
4 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, and 0.311.
7 See 47 C.F.R. § 1.1914.