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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Metro Radio, Inc.
) NAL/Acct. No. 200832340001
Antenna Structure Registrant
) FRN 0010154573
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 8, 2007
By the District Director, Columbia Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Metro Radio, Inc. ("Metro"), owner of Antenna Structure
Registration (ASR) # 1018735 and licensee of AM station WKCW in
Warrenton, Virginia, apparently willfully and repeatedly violated
Section 303(q) of the Communications Act of 1934, as amended, and
Sections 17.51(a), 17.48(a), and 17.57 of the Commission's Rules
("Rules") by failing to exhibit red obstruction lighting from sunset
to sunrise, failing to immediately notify the Federal Aviation
Administration ("FAA") of a known light outage, and failing to notify
the Commission of a change in ownership of the antenna structure. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Metro is apparently liable for a
forfeiture in the amount of thirteen thousand dollars ($13,000).
2. Antenna structure # 1018735 was an antenna tower of 206 feet in height
above ground located at 5562 Baldwin Street in Warrenton, Virginia.
According to the ASR for antenna structure # 1018735, the structure is
required to have painting and lighting in accordance with Paragraphs
1, 3, 11 and 21of the Commission's "Obstruction Marking and Lighting
Specifications for Antenna Structures -- FCC Form 715."
Specifically, the structure is required to be painted and have
obstruction lighting consisting of a flashing red beacon on top and
two side lights at the mid point of the tower.
3. On January 23, 2007, in response to a complaint, an agent from the
FCC's Columbia Office investigated an apparent tower light outage on
antenna structure # 1018735. The agent observed that, at 5:15 p.m.,
the average hour for sunset, there were no obstruction lights visible
on the antenna structure. When the tower still was not illuminated at
5:45 p.m., the agent contacted the nearest FAA Flight Service
Station (FSS) and was informed that a Notice to Airmen (NOTAM) had not
been issued for antenna structure # 1018735. The ASR database listed the
owner of antenna structure # 1018735 as "WTKF Inc. - d/b/a/ WKCW" in
Warrenton, Virginia. The agent attempted to contact the WKCW studio, but
reached a recording and left a message with a call-back number. When the
agent did not receive a return call by 6:00 p.m., the agent contacted the
FSS to have a NOTAM issued for the unlit tower.
4. The next day, the agent contacted Metro, which was identified in the
FCC's CDBS database as the current licensee of station WKCW. Metro's
owner, J. David Houston, stated that antenna structure # 1018735
previously was used by station WKCW as a back-up site and that power
to the structure was terminated on or about January 4th, 2007. Mr.
Houston indicated that he knew that the lights on the antenna
structure were out, but stated that he was unaware that the FCC's
Rules require that he notify the FAA. Mr. Houston indicated that Metro
planned to dismantle the tower the next day, January 25, 2007.
5. On May 25, 2007, the Columbia Office sent a Letter of Inquiry ("LOI")
to Mr. Houston seeking additional information about the light outage
and confirming ownership of the antenna structure. In response to the
LOI, Metro reported that it acquired antenna structure # 1018735 on
January 2, 2004. In addition, Mr. Houston submitted a declaration in
which he states that, on January 17, 2007, he notified the FAA that
the tower would be dismantled on January 24, 2007. Mr. Houston also
explained in the declaration that the electrical power to the site had
been terminated because Metro's initial plan had been to dismantle the
tower the first week in January 2007, but Metro was unable to do so
because of the unavailability of a key employee. Metro reported that
the tower was dismantled on January 24, 2007.
6. 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) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
7. 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. Section 17.51(a) of the Rules requires that all
red obstruction lighting be exhibited from sunset to sunrise unless
otherwise specified. On January 23, 2007, an agent observed that the
red obstruction lights were not illuminated on ASR # 1018735. Because
the owner of WKCW stated that power to 5526 Baldwin Street had been
terminated on or about January 4, 2007 and that he was aware that the
lights on the antenna structure were out, we find that the violation
was willful. The violation occurred for more than one day, therefore
the violation was repeated.
Metro's claim that it originally had planned to dismantle the tower the
week the electrical power was terminated does not change the fact that,
with Metro's knowledge, the tower remained unlit without the issuance of
an FAA Notice to Airmen ("NOTAM") from around January 4, 2007, to at least
January 17, 2007. Accordingly, based on the evidence before us, we find
that Metro apparently willfully and repeatedly violated Section 17.51(a)
of the Rules.
8. Section 17.48(a) of the Rules requires that tower registrants notify
the FAA Flight Service Station or office immediately of any
extinguishment or malfunction of any required top mounted lighting or
flashing light, no matter the position on the structure, that cannot
be corrected within thirty minutes. On January 24, 2007, Mr. Houston
stated to the agent that he was not aware that he was required to
notify the FAA of the light outage. In response to the LOI, however,
Mr. Houston submitted a declaration in which he claims to have
reported the light outage to the FAA on January 17, 2007. Even
assuming that Mr. Houston notified the FAA on January 17, 2007, such
notification did not comply with the requirement in Section 17.48(a)
that the FAA be notified immediately of any light outage that is not
corrected within thirty minutes. The electrical power to the site had
been terminated around January 4, 2007, so almost two weeks had
elapsed between the time the power was terminated and the time Mr.
Houston claims to have contacted the FAA. Because Mr. Houston knew the
lights were out beginning on or around January 4, 2007, and did not
notify the FAA until January 17, 2007, if ever, we find that the
violation was willful. The violation occurred for more than one day,
therefore, it was repeated. Based on the evidence before us, we find
that Metro apparently willfully and repeatedly violated Section
17.48(a) of the Rules.
9. Section 17.57 of the Rules requires that the owner of an antenna
structure for which an Antenna Structure Registration Number has been
obtained must immediately notify the Commission upon any change in
structure height or change in ownership information. The rule also
requires that a tower owner must notify the FCC within 24 hours of the
dismantlement of a tower. Metro acknowledged that it obtained antenna
structure # 1018735 on January 2, 2004. As soon as Metro acquired the
tower, it was required to notify the FCC of the change in ownership.
Further, as of the release date of this Notice of Apparent Liability
for Forfeiture, the ASR database still lists the tower owner as "WTKF
Inc. - d/b/a/ WKCW." Further, Metro was required to notify the FCC
within 24 hours of the tower's dismantlement, which according to Metro
occurred on January 24, 2007. We find that Metro apparently willfully
and repeatedly failed to comply with Section 17.57 of the Rules.
10. Based on the evidence before us, we find that Metro apparently
willfully and repeatedly violated Sections 17.51(a), 17.48(a), and
17.57 of the Rules by failing to comply with the antenna structure
lighting, notification, and registration requirements for antenna
structure # 1018735.
11. 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, the
base forfeiture amount for failure to comply with prescribed lighting
and/or painting is $10,000 and for failure to file required forms or
information with the Commission is $3,000. 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 Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement, Section 1.80,
and the statutory factors to the instant case, we conclude that Metro
is apparently liable for a $13,000 forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Metro Radio, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
thirteen thousand dollars ($13,000) for violations of Sections
17.51(a) and 17.57 of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Metro SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
14. 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Columbia Office,
9200 Farm House Lane, Columbia, Maryland 21046 and must include the
NAL/Acct. No. referenced in the caption.
16. 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.
17. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.8
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Metro Radio, Inc., 2251 Hunter Mill
Road , Vienna, VA 22181 and to counsel to Metro Radio, Inc., Mark
Lipp, Wiley, Rein, LP, 1776 K Street, NW, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
James T. Higgins
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a), S: 17.57
47 U.S.C. S: 503(b).
The agent attempted to contact the WKCW studio because when the initial
tower light outage complaint was sent to the Columbia Field Office from
the FCC's Communications and Crisis Management Center ("CCMC"), CCMC staff
indicated that they had determined that the contact telephone number
listed in the ASR database was incorrect. Because "WKCW" was part of the
name of the tower owner listed in the ASR database and because the site
was known to be the former transmitter site for station WKCW, the agent
called the number for the WKCW main studio.
We note that there is an inconsistency with regard to the date on which
the tower was dismantled. When the agent spoke to Mr. Houston on January
24, 2007, Mr. Houston stated that the tower would be dismantled the next
day. In response to the LOI, however, Metro reported that the tower was
dismantled on January 24, 2007. Whether the tower was dismantled on
January 24 or January 25, 2007 is irrelevant to our findings here.
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
47 C.F.R. S: 17.48(a).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(D).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, Section
8See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission