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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
The Original Company, Inc. ) File No. EB-01-CG-
Licensee: WBTO-FM )
Petersburg, Indiana ) NAL/Acct. No.
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 13,
By the District Director, Chicago Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that The Original Company, Inc.
(``Original''), licensee of Radio Station WBTO-FM, has apparently
violated Sections 17.47(a)(1) and 17.48(a) of the Commission's
Rules (the ``Rules'').1 These violations occurred as a result of
the failure of Radio Station WBTO-FM, located in Petersburg,
Indiana, to make observations of the antenna structure's lights
at least once each 24 hours, and their failure to notify the
Federal Aviation Administration (``FAA'') immediately of the
extinguishment of a flashing obstruction light. We conclude that
Original is apparently liable for a forfeiture in the amount of
five thousand dollars ($5,000).
2. On March 30, 2001, the Federal Communications
Commission's (``FCC'') Chicago Office received information that
the top light on Radio Station WBTO-FM's antenna structure had
not been working for approximately one month. An investigation
by the Chicago office determined the top light was suspected to
have been out since approximately March 1, 2001, but the station
was not aware of the outage until March 26, 2001. WBTO-FM did
not report the tower light outage to the FAA or Flight Service
Station (FSS) until March 30, 2001.
3. On April 13, 2001, a Notice of Violation (``NOV'') was
issued to Original for failure to make observations of the
antenna structure's lights at least once each 24 hours, failure
to report the antenna structure's light outage to the FAA or FSS,
and failure to notify the Commission of change in ownership
information for a registered antenna structure. The NOV cited
Original for non-compliance with Sections 17.47(a), 17.48(a) and
17.57 of the Rules.2
4. On April 25, 2001, the Chicago Office received a
response to the NOV from Original. In their reply, Original
conceded that they were unaware that the tower lights were not
being correctly checked. The reply also indicated Original had
repaired a malfunctioning light sensor. Original also admitted
they became aware of the outage on March 26, 2001, but the FAA
was not notified until March 30, 2001. Original stated they were
not aware of the requirement to file Form 854 when a station
license and assets were transferred in one action.
5. Section 17.47(a)(1) of the Rules requires the owner of
the antenna structure registered with the Commission 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 to insure that all such lights are
functioning properly. Section 17.48(a) of the Rules requires the
owners of an antenna structure that has been assigned lighting
specifications to notify the FAA if the lights on the tower are
extinguished and not corrected within 30 minutes.
6. The Commission assesses monetary forfeitures pursuant
to Section 503(b) of the Communications Act of 1934, as amended,
(the ``Act'')3 as implemented in Section 1.80 of the Rules.4 A
forfeiture may be assessed against a person who the Commission
finds to have willfully5 or repeatedly 6 failed to comply with
the provisions of the Act or the Rules. Forfeiture amounts are
decided in accordance with Section 503(b)(2) of the Act7 and the
Commission's forfeiture guidelines in Section 1.80(b)(4) of the
7. Based on the evidence before us, we find that Original
willfully and repeatedly violated Sections 17.47a)(1) and
17.48(a) of the Rules by failing to make an observation of the
antenna structure's lights at least once each 24 hours and
failing to notify the FAA of extinguishment of tower lights.
Pursuant to The Commission's 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) (``Forfeiture Policy Statement''), the base
forfeiture amount for failure to conduct required monitoring is
$2,000, and the base forfeiture amount for failure to file
required information is $3,000. The aggregated amount for these
forfeitures is $5,000. 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.9 After applying the Forfeiture Policy Statement and the
statutory factors to the instant case, we believe a $5,000
forfeiture is warranted.
IV. Ordering Clauses
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80 of the
Rules,10 The Original Company, Inc. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of five
thousand dollars ($5,000) for failure to observe the antenna
structure's lights at least once each 24 hours and for failing to
notify the FAA when Original became aware of the outage of the
top beacon of their broadcast antenna structure, in violation of
Sections 17.47(a)(1) and 17.48(a) of the Rules.
9. 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, The Original Company SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
10. 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. 200132320001.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20402 and MUST INCLUDE THE NAL/Acct. No. 200132320001.
12. 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
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.11
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to The Original Company, Inc., 1309 Old
Orchard Road, Vincennes, IN 47591-0242.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
1 47 C.F.R. §§ 17.47(a)(1) and 17.48(a).
2 47 C.F.R. § 17.57.
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 Section 312(f)(1), which also applies to Section 503(b),
provides: [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 provisions of the 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).
6 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.
7 47 U.S.C. § 503(b)(2).
8 47 C.F.R. § 1.80(b)(4).
9 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement,
12 FCC Rcd at 17100-01.
10 47 C.F.R. §§ 0.111, 0.311, and 1.80.
11 See 47 C.F.R. § 1.1914.