Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
American Radio Brokers, Inc., ) File Number: EB-04-AN-028
d/b/a Radio Station KFFR )
San Francisco, California ) NAL/Acct. No: 200532780002
) FRN: 0010287019
Registrant of Antenna )
ASR # 1019797 )
Knik, Alaska )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 10, 2004
By the Resident Agent, Anchorage Resident Agent Office, Western
Region, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that American Radio Brokers, Inc., d/b/a/
Radio Station KFFR 1020 (``ARBInc''), San Francisco, California,
registrant of Antenna Structure Number 1019797, located at Knik,
Alaska, willfully and repeatedly violated Section 303(q) of the
Communications Act of 1934, as amended, (``the Act''), and
Sections 17.48(a) and 17.51(a) of the Commission's Rules (``the
Rules'').1 Specifically, we find ARBInc apparently liable for
failing to maintain the lighting requirements for the antenna
structure, as prescribed by the Commission, and for failing to
notify an office or flight service station of the FAA regarding
light outages. We conclude, pursuant to Section 503(b) the Act,2
that ARBInc is apparently liable for a forfeiture in the amount
of thirteen thousand dollars ($13,000.00).
2. Antenna structure # 1019797 is located off Hazel Avenue
near Knik, Alaska. ARBInc is the registered owner of this
antenna structure. The antenna structure, designated as tower
one of a two-tower transmitting array,3 is used by AM broadcast
station KAXX, Eagle River, Alaska, and is also the supporting
structure of the antenna for FM broadcast station KADX, Houston,
Alaska.4 The antenna structure is required to have Obstruction
Marking and Lighting in accordance with specified chapters of FAA
Advisory Circular 70/7460-1F.5 Specifically, the structure is
required to be painted with the appropriate orange and white
banding and lit with red obstruction lighting including a top
mounted flashing red beacon.6
3. On October 15, 2002, the electric power utility,
Matanuska Electric Association, Inc. (``MEA''), that serves the
antenna structure # 1019797, alerted the Alaska Region FAA, Air
Traffic Division, that the utility would terminate electric
service to the site on October 16, 2002, due to non-payment of
utility bills by ARBInc.7 Because this action would make the
tower go dark and premise equipment non-functional, Air Traffic
Division personnel requested a Notice to Airmen (``NOTAM'')
issued, through the FAA's Kenai Flight Service Station (``Kenai
FSS'') as a preemptive measure concerning the antenna structure.
8 The Air Traffic Division called and relayed the information
they had obtained to a field agent of the Commission's Anchorage
Resident Agent Office. Later on October 15, 2002, Anchorage
agents attempted to contact staff at the main studio location for
radio stations, KAXX and KADX, which broadcast using the antenna
structure. Agents located the suites in the building used by the
radio stations but found that both suites were locked and
unoccupied. The main studio telephone number for these stations
was reported as out of service by the local telephone system.
4. The electric power to antenna structure # 1019797 was
discontinued by MEA on October 16, 2002. On October 30, 2002,
with an impending auto-cancellation of the original NOTAM for the
structure, the FAA's Kenai FSS contacted an Anchorage Office
agent. The Anchorage agent revisited the antenna structure site
on October 31, 2002, and confirmed no lights illuminated on the
structure. The Kenai FSS then re-issued the NOTAM on the basis
that no lighting was illuminated on the antenna structure. The
Kenai FSS indicated that they had no record of the structure
owner contacting them for NOTAM issuance or continuance.
5. On December 12, 2002, an Anchorage agent contacted
Chester Coleman (``Coleman''), of American Radio Brokers, Inc.,
to inquire about the status of the antenna structure lighting.
Coleman responded that he was working on it. In response to the
question regarding the issuance and maintenance of NOTAM's,
Coleman stated that he did call the Palmer Flight Service Station
and reported when the power was taken down. The Agent requested
specifics about the contact with the Palmer FSS but Coleman
indicated that he did not have the information immediately
available and that he could forward the information later.9
6. On December 12, 2002, an Anchorage agent contacted the
FAA's Air Traffic Division to inquire about the possibility of
obtaining records of NOTAM's from the Palmer FSS. The Air
Traffic Division indicated that the Palmer FSS is not authorized
to accept or issue NOTAM's and that the Palmer FSS advises all
callers to contact Kenai FSS with their information. The FAA Air
Traffic Division also indicated that none of the NOTAM's issued
or maintained by the Kenai FSS for antenna structure # 1019797
were initiated by or on behalf of Coleman, ARBInc or its
7. On December 16, 2002, FAA Air Traffic Division issued
an Aeronautical Advisory Study, 2002-AAL-279-OE, DETERMINATION OF
HAZARD TO AIR NAVIGATION (``FAA Notice''), for the specified
structure based on the on-going unlighted condition of the
structure. This FAA Notice was addressed and sent to Chester P.
Coleman, American Radio Brokers, Inc., 1255 Post Street, Suite
1011, San Francisco, CA, 94109. Coleman was required to respond
by January 15, 2003. The FAA received no response from ARBInc,
Coleman, or their representatives. Consequently, on January 25,
2003, the determination contained in the FAA Notice became
final.10 The FAA Notice warned that the FAA's determination
concerning the antenna structure did not relieve Coleman or
ARBinc of ``compliance responsibilities relating to any law,
ordinance, or regulation of any Federal, State, or local
8. Between October 31, 2002 and July 23, 2004, agents from
the Anchorage Office continued to contact MEA and visit the
antenna structure site.12 Each contact with MEA revealed that
ARBInc had made no effort to reestablish electric utility service
to the antenna structure and that the structure remained
disconnected from the utility's power grid.13 Each visit to the
site revealed no illumination of the side marker or top beacon
lighting. Agents noted no evidence of an alternate source of
power (generator, wind or solar) at the site.
9. On July 23, 2004, an Anchorage Office agent again
traveled to the antenna structure, inspected the site and found
no evidence of any change to MEA's utility connection point and
no indication on the meters that the premise equipment was
consuming power. The visit to the site revealed no illumination
of the side marker or top beacon lighting. In response to an
Anchorage agent's inquiry, MEA indicated that MEA has had no
contact with Coleman, ARBInc or representative and that no
payments to the overdue account have been made. MEA advised the
Anchorage agent that the site remained continuously disconnected
from the utility's power grid since the disconnect action of
October 16, 2002.
10. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
fails to comply with any of the provisions of the Act or of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term ``willful''
as used in Section 503(b) is interpreted to mean simply that the
acts or omissions are committed knowingly.14 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.15
11. Section 303(q) of the Act states that antenna structure
owners shall maintain the painting and lighting of antenna
structures as prescribed by the Commission.16 Section 17.51(a)
of the Rules requires that all red obstruction lighting be
exhibited from sunset to sunrise unless otherwise specified.17
On October 16, 2002, the utility supplying electrical power to
antenna structure #1019797 terminated service to the site,
leaving the antenna structure dark and premise equipment non-
functional. With no primary or alternate source of electricity,
antenna structure #1019797 has not been illuminated with its
required red obstruction lighting since October 16, 2002 through
at least July 23, 2004, the date of the last inspection by the
Anchorage FCC agent.
12. Section 17.48(a) of the Rules requires that tower
registrants notify the FAA Flight Service Station or office of
any extinguishment or malfunction of any required top mounted
lighting or flashing light no matter the position on the
structure. 18 Because of the termination of electrical power on
October 16, 2002, the lighting on antenna structure #1019797 has
been extinguished since that date through at least July 23, 2004.
However, ARBInc, the owner of the antenna structure, has never
notified an FAA Flight Service Station concerning this outage.
In addition, ARBInc failed to respond to inquiries from both the
FAA and the FCC concerning the light outages on the antenna
13. ARBInc's principle, Chester Coleman, was given notice
of the extinguishment of the lights by a Commission agent.
Coleman indicated to the agent that he knew of the outage and had
notified the FAA of the outage, although no notification was ever
given. Therefore, ARBInc's failure to ensure the required
obstruction lighting on antenna structure # 1019797, and to
notify the FAA of the extinguishment of the lighting on the
antenna structure, was willful.19 ARBInc's failure to ensure the
obstruction lighting, and to notify the FAA, occurred on more
than one day, therefore, they were repeated. Based on the
evidence before us, we find ARBInc willfully and repeatedly
violated Section 303(q) of the Act and Sections 17.51(a) and
17.48(a) of the Rules by failing to maintain the required red
obstruction lighting from sunset to sunrise and by failing to
notify FAA regarding the on-going light outage on antenna
structure 1019797 in Knik, Alaska as required.
14. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, (``Forfeiture Policy
Statement''), and Section 1.80 of the Rules,20 the base
forfeiture amount for failure to comply with prescribed lighting
and/or marking is $10,000. The base amount for failing to file
required information is $3000. We find that failing to notify
the FAA of an outage constitutes a failure 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 Act, which include the nature,
circumstances, extent, and gravity of the violations, 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.21 Appling the Forfeiture Policy Statement,
Section 1.80, and the statutory factors, a $13,000 forfeiture is
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED, pursuant to Section 503(b)
of the Communications Act of 1934, as amended, and Sections
0.111, 0.311 and 1.80 of the Rules,22 American Radio Brokers,
Inc. d/b/a Radio Station KFFR 1020 is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of thirteen
thousand dollars ($13,000) for willful and repeated violation of
Section 303(q) of the Act and Sections 17.51(a) and 17.48(a) of
the Rules by failing to maintain and exhibit red obstruction
lighting from sunset to sunrise on antenna structure 1019797 in
Knik, Alaska and making proper notification to the FAA regarding
the top light outage.
16. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
American Radio Brokers, Inc., d/b/a Radio Station KFFR 1020,
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
17. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
18. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Anchorage Resident Agent Office, P.O. Box 221849, Anchorage,
Alaska 99522-1849 and must include the NAL/Acct. No. referenced
in the caption.
19. 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
20. Requests for payment of the full amount of this Notice
of Apparent Liability for Forfeiture under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.23
21. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to: American Radio Brokers, Inc., d/b/a Radio Station KFFR 1020,
1255 Post Street, Suite 625, San Francisco, CA 94109; Chester P.
Coleman, C/O Amer. Radio Brokers, Inc., 1255 Post Street, Suite
1011, San Francisco, CA 94109; Chester P. Coleman, 1255 Post
Street, Suite 1023, San Francisco, CA 94109.
FEDERAL COMMUNICATIONS COMMISSION
David J. Charlton
Anchorage Resident Agent Office
147 U.S.C. § 303(q), 47 C.F.R. §§ 17.48(a) & 17.51(a).
247 U.S.C. § 503(b).
3The second tower of this array is below 200 feet, passes slope
requirements and therefore is not required to be a registered
4According to Commission records, Chester P. Coleman is the
licensee of both KAXX and KADX.
5Pursuant to Section 17.23 of the Commission' s Rules, 47 C.F.R.
§ 17.23, antenna structures to be registered must conform with
the Federal Aviation Administration's (``FAA's'') painting and
light recommendation as set forth on the FAA Notice to the owner
of the structure. The Notice contains the FAA's determination of
``no hazard,'' as referenced in FAA Advisory Circulars: AC
70/7460-1J, ``Obstruction Marking and Lighting,'' effective
January 1, 1996, and AC 150/5345-43E, ``Specification for
Obstruction Lighting Equipment,'' dated October 19, 1995. These
circulars are incorporated by reference in Section 17.23 of the
Rules and ``contain FAA recommendations for painting and lighting
structures which pose a potential hazard to air navigation. For
purposes of this part, the specifications, standards, and general
requirements stated in these documents are mandatory.'' 47 C.F.R.
6FAA Advisory Circular 70/7460-1F, Chapters Three, Four and Five.
7MEA refers to this site as the ``KABN radio site.''
8A ``NOTAM'' advises pilots of an antenna structure at a specific
location with a temporary light malfunction.
9The Anchorage Office has not yet received the requested
information from Coleman.
10On October 8, 2003 and December 10, 2003, an Anchorage office
agent made contact with the FAA Air Traffic Division to verify
that the FAA NOTAM was still in effect. Air Traffic personnel
advised that the FAA NOTAM was still in effect and that no
contact with ARBInc or Coleman had been advanced or received.
11FAA Notice at 1.
12Anchorage Office agents visited the antenna structure on
October 16, 2002, October 31, 2002, December 12, 2002, December
16, 2002, January 9, 2003, October 8, 2003, December 18, 2003,
and July 23, 2004. On December 12, 2002, an agent found that MEA
had ``Red Tagged'' and locked both power utility meter
bases/panels. Neither of the utility meters were turning,
indicating no power consumption from the premise equipment. On
the December 18, 2003 visit, an agent noted that MEA had removed
one of the two meters and placed a tamper-proof locking ring
around the remaining meter with a new ``Red Tag.'' The remaining
meter showed no power consumption from the premise equipment.
These conditions were still in existence at the agents' visit on
July 23, 2004. The agents noted no evidence of an alternate
source of power (generator, wind or solar) at the site during any
of their visits.
13Anchorage Office agents contacted MEA on October 31, 2002,
December 10, 2003 and July 22, 2004.
14Section 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 (1991).
15Section 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 `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.''
1647 U.S.C. § 303(q).
1747 C.F.R. § 17.51(a).
1847 C.F.R. § 17.48(a).
The FAA Notice specifically warned ARBInc and Coleman that the
FAA determination that the antenna structure was a hazard to air
navigation did not relieve them of their compliance
responsibilities relating to any Federal, State or local law.
2012 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. § 1.80.
2147 U.S.C. § 503(b)(2)(D).
2247 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.
23See 47 C.F.R. § 1.1914