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                            Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                        )
                              )
Exosphere Broadcasting, LLC             )    File  No.  EB-03-TP-
178
Owner of Antenna Structure Registration )    NAL/Acct.       No.: 
200432700009
Number 1027312                )    FRN: 0003-4746-40
Saint Augustine, Florida                )

           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                   Released:  February 4, 2004

By the Enforcement Bureau, Tampa Office:

                        I.   Introduction

     1.   In this  Notice of  Apparent Liability  for  forfeiture 
(``NAL''), we  find  Exosphere  Broadcasting,  LLC,  (Exosphere), 
owner of  antenna  structure  ASR #1027312  in  Saint  Augustine, 
Florida, apparently liable for a forfeiture in the amount of  ten 
thousand dollars ($10,000) for willful and repeated violation  of 
Sections 17.50 and 17.51 of the Commission's Rules  (``Rules'').1  
Specifically, we find Exosphere apparently liable for failing  to 
maintain  good  visibility  of  the  required  antenna  structure 
obstruction marking and failing  to exhibit obstruction  lighting 
from sunset to sunrise. 

                      II.       Background

     2.   On April  3, 2003,  two  agents from  the  Commission's 
          Tampa Field Office inspected 
Exosphere's antenna structure #1027312, located at 29 51' 01.0'' 
North Latitude, 081 19' 49.0'' West Longitude, Saint  Augustine, 
Florida.  The agents  observed that the  antenna structure  paint 
was faded and  obstructed by  cables attached  to the  structure, 
resulting  in  poor  visibility  of  the  structure  markings.  A 
representative from the radio stations that utilize the structure 
for their  antennas, WFOY-AM  and WAOC-AM,  stated that  the  top 
beacon on  the  antenna  structure had  been  extinguished  since 
approximately March 30, 2003, and  that he notified an  Exosphere 
representative about the light outage on that date.

     3.   On the same date, at  approximately 10:21 P.M. the  FCC 
agents observed  the  structure  lighting and  verified  the  top 
beacon on the  antenna structure  was extinguished.   One of  the 
agents contacted  the Federal  Aviation Administration  (``FAA'') 
and determined that the  FAA had not been  notified of the  light 
extinguishment. 

     4.   On April 4,  2003, one  of the  agents interviewed  Mr. 
Jerry Smith, a representative of Exosphere Broadcasting, LLC, who 
confirmed ownership of the structure.  Mr. Smith stated that,  on 
March 30, 2003, a representative  of the broadcast stations  that 
use the structure notified  him of the light  outage, but he  did 
not  notify  the  FAA.  Mr.  Smith  also  acknowledged  that  the 
structure needed  painting  and  stated the  structure  would  be 
repainted as soon as possible.



                        III.  Discussion

     5.   Section  17.50  of  the   Rules  states  that   antenna 
structures requiring painting  shall be cleaned  or repainted  as 
often as  necessary to  maintain  good visibility.   The  antenna 
structure owner is  responsible for  maintaining the  structure's 
painting.2   Exosphere  is  the   registered  owner  of   antenna 
structure #1027312.  This structure is required to be painted and 
exhibit red  obstruction  lights  at night  pursuant  to  Federal 
Aviation Administration specifications, the structure's ASR,  and 
FCC rules.3  From at least April 3 through 4, 2003, the paint  on 
the structure was faded and obstructed by cables attached to  the 
structure,  resulting  in  poor   visibility  of  the   structure 
markings.  Section  17.51   of  the  Rules   requires  that   red 
obstruction  lighting  be  exhibited  from  sunset  to   sunrise.  
Exosphere Broadcasting, LLC failed to exhibit the required lights 
on its antenna structure from at least March 30 to April 3, 2003.  
In addition, Exosphere  Broadcasting, LLC  failed to  immediately 
notify the FAA  of the  improper functioning  of the  structure's 
lighting.4

     6.   Based on the evidence before us, we find that Exosphere 
Broadcasting, LLC  repeatedly5 and  willfully6 violated  Sections 
17.50 and  17.51  of  the  Rules  by  failing  to  maintain  good 
visibility of the required antenna structure obstruction  marking 
and by failing  to exhibit required  obstruction lighting on  its 
antenna structure between sunset and sunrise.

     7.   Pursuant to Section 1.80(b) (4) of the Rules, the  base 
forfeiture amount for failure  to comply with prescribed  antenna 
structure  lighting   and/or  markings   is  $10,000.7    Section 
503(b)(2)(D) of  the  Communications  Act  of  1934,  as  amended 
(``Act''), requires  us to  take  into account  ``...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 such  other matters  as 
justice  may  require.''8   Considering  the  entire  record  and 
applying the statutory factors listed above, this case warrants a 
$10,000 forfeiture.

                      IV.  Ordering Clauses

     8.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the  Act9 and  Sections 0.111,  0.311 and  1.80 of  the 
Rules,10 Exosphere Broadcasting, LLC,  is hereby NOTIFIED of  its 
APPARENT LIABILITY FOR A FORFEITURE in the amount of $10,000  for 
willful and repeated violation of Sections 17.50 and 17.51 of the 
Commission's Rules.

     9.   IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Commission's Rules, within thirty days of the release of this 
NAL, Exosphere Broadcasting,  LLC, SHALL PAY  the full amount  of 
the proposed forfeiture or SHALL FILE a written statement seeking 
reduction or cancellation of the proposed forfeiture.

     10.  Payment of the forfeiture  may be made  by 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 note  the 
FRN  and  NAL/Acct.  No.  referenced  in  the  letterhead  above. 
Requests for payment  of the  full amount  of this  NAL under  an 
installment  plan  should  be  sent  to:  Federal  Communications 
Commission, Chief, Revenue and Receivables Operations Group,  445 
12th Street, SW, Washington, D.C. 20554.11

     11.  The  response,  if  any,  must  be  mailed  to  Federal 
Communications Commission,  Office  of the  Secretary,  445  12th 
Street, SW, Washington, D.C.   20554, Attn: Spectrum  Enforcement 
Division, and must include the  FRN and NAL/Acct. No.  referenced 
in the letterhead above.

     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 
submitted.

     13.  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.

     14.  IT IS FURTHER ORDERED THAT a copy of this NAL shall  be 
sent  by  regular  mail   and  Certified  Mail,  Return   Receipt 
Requested,  to  Exosphere  Broadcasting,  LLC,  567  Lewis  Point 
Extension, Saint Augustine, Florida 32086.

                              FEDERAL COMMUNICATIONS COMMISSION



                              Ralph M. Barlow
                              District Director
  
_________________________

1 47 C.F.R.  17.50 and 17.51.
2 See 47 C.F.R.  17.6(a).
3 See 47 C.F.R.  17.21, 17.22, and 17.23.
4 Owners of registered antenna structures with assigned lighting 
must immediately report to the FAA any known improper functioning 
of any top or flashing light.  See 47 C.F.R.  17.48(a).
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 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 (1991).
7 47 C.F.R.  1.80(b)(4).
8 47 U.S.C.  503(b)(2)(D).
9 47 U.S.C.  503(b).
10 47 C.F.R.  0.111, 0.311, and 1.80.
11 See 47 C.F.R.  1.1914.