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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-CG-
WLTH Radio, Inc. )
WLTH ) NAL/Acct. No.
Gary, Indiana )
) FRN 0004 9887 62
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the District Director, Chicago Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that WLTH Radio, Inc. (``WLTH''), has
apparently violated Sections 17.4(a), 17.48(a), and 17.51(a) of
the Commission's Rules (the ``Rules'').1 These violations
occurred because WLTH failed to register its antenna structure,
failed to notify the Federal Aviation Administration (``FAA'') of
an antenna structure light outage and failed to exhibit the
required red obstruction lighting. We conclude that WLTH is
apparently liable for a forfeiture in the amount of sixteen
thousand dollars ($16,000).
2. The Federal Communications Commission (``FCC'')
received information that the lights on WLTH's antenna structure
were not operational. The complaint alleged that the lights had
not functioned since February 14, 2003. While attempting to find
a current address for WLTH, it became apparent that the antenna
structure was not registered.
3. On March 5, 2003 an agent from the Chicago Office of
the Federal Communications Commission (``FCC''), informed an
employee of WLTH that the Commission had received the complaint.
On March 6, 2003, the agent also informed the station's engineer
of the light outages. The engineer subsequently verified that
there were problems with the lighting. WLTH did not notify the
FAA of the tower light outage until March 12, 2003.
4. Section 17.4(a) of the Rules specifies that the owner
an antenna structure that had been assigned painting and lighting
requirements prior to July 1, 1996, was to register the structure
prior to July 1, 1998. According to Commission records searched
on May 5, 2003, WLTH's antenna structure, which had been assigned
painting and lighting requirements, was not registered.
5. Section 17.48(a) of the Rules requires that a report of
any observed or otherwise known extinguishment or improper
functioning top steady burning light or flashing obstruction
light, not corrected within 30 minutes shall be made immediately
by telephone or telegraph to the nearest Flight Service Station
or office of the FAA. An FCC agent initially informed WLTH of
the tower light outage on March 5, 2003, and then again on March
6 and March 12, 2003. WLTH did not notify the FAA of the outage
until March 12, 2003.
6. Section 17.51(a) of the Rules requires red obstruction
lighting be exhibited from sunset to sunrise. WLTH failed to
exhibit the required lights on its antenna structure from
February 14, 2003 to March 12, 2003.
7. The Commission assesses monetary forfeitures pursuant
to Section 503(b) of the Communications Act of 1934, as amended,
(the ``Act'')2 as implemented in Section 1.80 of the Rules.3 A
forfeiture may be assessed against a person who the Commission
finds to have willfully4 or repeatedly5 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 Act6 and the
Commission's forfeiture guidelines in Section 1.80(b)(4) of the
8. Based on the evidence before us, we find that WLTH
willfully and repeatedly violated Sections 17.4(a), 17.48(a) and
17.51(a) of the Rules by failing to register the antenna
structure, failing to notify the FAA immediately of the antenna
structure light outage, and failing to exhibit required
obstruction lighting on its antenna structure between sunset and
9. 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 failing to comply
with prescribed lighting is $10,000, and the base amount for
failing to file required information is $3,000. Failing to
register an antenna structure and failing to notify the FAA of an
outage constitute failures to file required information. 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.8 After applying the
Forfeiture Policy Statement and the statutory factors to the
instant case, we believe that a sixteen thousand dollar ($16,000)
monetary forfeiture is warranted.
IV. Ordering Clauses
10. 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,9 WLTH Radio, Inc. is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of sixteen thousand
dollars ($16,000) for failure to register the antenna structure,
failure to notify the FAA of a tower light outage, and failure to
exhibit red obstruction lighting in violation of Sections
17.4(a), 17.48(a), and 17.51(a).
11. 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, WLTH Radio, Inc. SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
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. 200432320001 and FRN 0004 9887 62.
13. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20402, and MUST INCLUDE THE NAL/Acct. No. 200432320001 and FRN
0004 9887 62.
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. 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. 20554.10
16. 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 Spectrum Enforcement 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.
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to WLTH Radio, Inc., P. O. Box 2300, Gary,
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
1 47 C.F.R. §§ 17.4(a), 17.48(a), and 17.51(a).
2 47 U.S.C. § 503(b).
3 47 C.F.R. § 1.80.
4 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).
5 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.
6 47 U.S.C. § 503(b)(2).
7 47 C.F.R. § 1.80(b)(4).
8 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement,
12 FCC Rcd at 17100-01.
9 47 C.F.R. §§ 0.111, and 0.311.
10 See 47 C.F.R. § 1.1914.