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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-AT-077
Cumulus Licensing Corp. ) NAL/Acct. No.200332480025
Owner of Antenna Structures )
#1052722 and #1052724 near ) FRN 0005-2603-77
Savannah, Georgia )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 27, 2003
By the Enforcement Bureau, Atlanta Office:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Cumulus Licensing Corp.
(``Cumulus''), owner of antenna structures #1052722 and
#1052724 apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000) for willful and repeated
violation of Section 17.50 of the Commission's Rules
(``Rules'').1 Specifically, we find Cumulus apparently
liable for failure to clean and repaint its antenna
structures to maintain good visibility.
2. On August 22, 2001, an agent of the Commission's
Atlanta Field Office (``Atlanta Office'') inspected the
antenna structures associated with AM radio station WBMQ
bearing FCC antenna structure registration (``ASR'') numbers
1052722, 1052724 and 1052726 located near Savannah,
Georgia.2 The paint on the structures was badly faded and
peeling, greatly reducing visibility of the structures'
obstruction markings. In the WBMQ public inspection file,
the agent found a written statement by the station's chief
engineer stating that the antenna structures' deteriorated
paint constituted an air navigation hazard. The Atlanta
Office issued to Cumulus a Notice of Violation on September
19, 2001, for failure to maintain good visibility of the
antenna structures' obstruction markings. Cumulus submitted
a written reply dated October 15, 2001, stating that they
were currently acquiring bids to repaint the antenna
structures and anticipated that the repainting of the
structures would be completed by December 31, 2001.
3. On October 18, 2001, the Atlanta Office sent to
Cumulus a Continuation of Notice of Violation requesting the
status of the antenna structure repainting. Cumulus' legal
counsel submitted a written reply dated January 9, 2002,
stating that Cumulus is the owner of the antenna structures
in question and that Cumulus would make a determination, no
later than January 31, 2002, whether to repaint the towers
or replace the towers altogether with a tower painted in
conformance with Commission requirements.
4. Cumulus's counsel submitted another written reply
dated February 4, 2002, stating that Cumulus planned to
replace the existing antenna structures, and that completion
of the construction of the new antenna structures should be
either June or July of 2002.
5. Cumulus's counsel submitted another written reply
dated July 31, 2002, stating that after further evaluation
of the time and expense involved in the construction of a
new antenna structure for WBMQ(AM), Cumulus had decided to
relocate the operations for WBMQ(AM) to another existing
antenna structure in Savannah, Georgia. Following the move
to the new structure, Cumulus would dismantle the current
WBMQ(AM) antenna structures.
6. On March 18 and 19, 2003, an agent of the Atlanta
Office again inspected Cumulus' antenna structures bearing
ASR numbers 1052722 and 1052724. The paint covering more
than one-half of the surface of the structures was severely
faded and peeling, greatly reducing visibility of the
structures' obstruction markings. The aviation orange and
white paint bands were not distinguishable at a distance of
one-half mile from the structures. The Commission's ASR
database showed these structures are owned and registered to
Cumulus and require painting.
7. Cumulus' antenna structures' registration numbers
1052722 and 1052724 specify lighting and painting for these
structures that include requirements that the structures be
painted with alternating aviation orange and white bands.
Section 17.50 of the Rules requires that antenna structures
requiring painting be cleaned or repainted as necessary to
maintain good visibility. Section 17.6(a) of the Rules3
states that antenna structure owners are responsible for
maintaining a structure's paint. On March 18 and 19, 2003,
Cumulus' antenna structures #1052722 and #1052724 had
severely faded and peeling paint making the bands
indistinguishable at a distance of one-half mile from the
structure, resulting in poor visibility of the structures'
8. Based on the evidence before us, we find Cumulus
willfully4 and repeatedly5 violated Section 17.50 of the
Rules by failing to repaint its antenna structures to
maintain good visibility in accordance with the painting
specifications associated with its antenna structures
#1052722 and #1052724.
9. Pursuant to Section 1.80(b)(4) of the Rules,6 the
base forfeiture amount for failure to comply with prescribed
antenna structure markings is $10,000. 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, as amended (``Act''), 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.7
Considering the entire record and applying the factors
listed above, this case warrants a forfeiture of $10,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,8 and Sections 0.111, 0.311 and
1.80 of the Rules,9 Cumulus Licensing Corp. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for willful and
repeated violation of Section 17.50 of the Rules by failing
to clean and repaint its antenna structures to maintain good
11. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Cumulus Licensing Corp. SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
12. 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. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.10
13. 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. referenced above.
14. 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
15. 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 Technical &
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.
16. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Cumulus Licensing Corp., 111 East
Kilbourn Ave., Ste. 2700, Milwaukee, WI 53202.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
Atlanta Office, Enforcement Bureau
1 47 C.F.R. § 17.50.
2 Cumulus Licensing Corp., the subject of this NAL, a
subsidiary of Cumulus Media Inc., is the licensee of radio
station WBMQ as well as the registered owner of the two
captioned antenna structures. WBMQ utilizes the two
captioned antenna structures as well as a third structure
with ASR #1052726. At the time of the August 22, 2001
inspection, Cumulus Licensing Corp. stated that they owned
antenna structure #1052726. However, the Commission's ASR
database listed the name of the former owner, Savannah
Communications LP DBA = WBMQ-AM, as the registered owner.
In the September 19, 2001 Notice of Violation, Cumulus
Licensing Corp. was cited for, among other things, failure
to notify the Commission of a change in antenna structure
ownership for structure #1052726. In January, 2002, the
registered owner information for structure #1052726 was
changed to Cumulus Broadcasting Inc., also a subsidiary of
Cumulus Media Inc. While not a subject of this NAL, we note
that antenna structure #1052726 also violated Section 17.50
of the Rules due to the poor visibility of the obstruction
3 47 C.F.R. § 17.6(a).
4 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 . . . .'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387-88
5 The 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.'' 47
U.S.C. § 312(f)(2).
6 47 C.F.R. § 1.80(b)(4).
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 See 47 C.F.R. § 1.1914.