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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Marconi Broadcasting Company LLC ) File Number EB-09-PA-0019
Antenna Structure Registrant ) NAL/Acct. No. 201032400001
Philadelphia, Pennsylvania ) FRN 0015-71-0098
ASR # 1232260 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 2, 2009
By the District Director, Philadelphia Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Marconi Broadcasting Company LLC ("Marconi"), owner of antenna
structure # 1232260 and licensee of AM radio station WHAT in
Philadelphia, Pennsylvania, apparently willfully and repeatedly
violated Section 17.47 of the Commission's Rules ("Rules") by failing
to make observations of the antenna structure's lights at least once
each 24 hours to ensure that all such lights are functioning properly.
We conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Marconi is apparently liable for a
forfeiture in the amount of two thousand dollars ($2,000).
2. On January 18, 2009, the FCC's Philadelphia Office received a report
of a light outage on antenna structure # 1232260. In response, on
January 22, 2009, an agent in the FCC's Philadelphia Office searched
the FAA's database and found that a Notice to Airmen ("NOTAM") had not
been issued for structure # 1233360. The agent also searched the FCC's
Antenna Structure Registration ("ASR") database for antenna structure
# 1232260 and determined that Marconi owns the antenna structure. An
associated entity, Marconi Broadcasting Licenses, LLC, is the licensee
of AM station WHAT, which broadcasts using antenna structure #
1232260. According to the structure's Federal Aviation
Administration's ("FAA") determination, the structure is required to
have "Obstruction Marking and Lighting" in accordance with Paragraphs
4, 8, and 12 of FAA Circular 70/7460-1K, which require, inter alia,
that the tower have a flashing red beacon on top and mid levels of the
structure at nighttime and a flashing white strobe at the top level
during the daytime.
3. On January 22, 2009, the agent spoke with the Program Director for
Marconi. During the telephone conversation, the Program Director
acknowledged that the top-level obstruction lighting was extinguished
on the WHAT antenna structure. He also reported that an informant had
already notified the station about the outage and that he would notify
the FAA of the outage. The Program Director also stated that Marconi
has a system installed to remotely monitor the obstruction lighting on
the WHAT antenna structure but the system was not being used.
4. On January 30, 2009, prior to dawn at 6:40 a.m., an agent from the
Philadelphia Office inspected the WHAT antenna structure and observed
that all tower lights were functioning except for the top-level beacon
light. The agent also reviewed the Federal Aviation Administration
online records and found that the FAA issued a NOTAM on January 22,
2009 for the obstruction light outage on the WHAT antenna structure.
5. On March 2, 2009, as a follow-up to the inspection, the Philadelphia
Office issued a Letter of Inquiry to Marconi. Among other things, the
Philadelphia Office requested Marconi to identify when it first became
aware of the obstruction lighting outage and to describe the method it
uses to make daily determinations that the obstruction lighting on the
WHAT antenna structure is functioning properly.
6. On March 23, 2009, Wiley Rein LLP submitted a Response to the Letter
of Inquiry on behalf of Marconi. In the Response, Marconi stated that
it first became aware of the outage on January 22, 2009 when WHAT was
notified by an informant and then by the agent from the Philadelphia
Office. Marconi further stated that, after the agent made the Program
Director aware of the outage, he immediately notified the FAA. The FAA
first issued a NOTAM on January 22, 2009 and then extended the NOTAM
on February 5, 2009. Marconi reported that the outage was repaired on
February 25, 2009.
7. In the Response, Marconi also addressed its procedures for monitoring
of the obstruction lighting. Marconi stated that it previously had
procedures for a visual inspection of the tower by the Program
Director once every 24 hours. Marconi also reported that when the
Program Director took over earlier this year, he was not informed that
his position included the responsibility for monitoring the
obstruction lighting system on a daily basis. Marconi stated that,
subsequent to the agent's telephone call, it established a protocol
where the Program Director is responsible for daily visual monitoring
of the obstruction lighting. In the event that the Program Director is
unable to perform those duties, the Assistant Program Director will
perform those duties. Marconi also reported that it is considering an
automatic monitoring system for the tower lights.
8. 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) of the Act 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.
9. Section 17.47(a)(1) of the Rules requires the owner of any antenna
structure that is registered with the Commission and has been assigned
lighting specifications must make an observation of the antenna
structure's lights at least once every 24 hours either visually or by
observing an automatic properly maintained indicator designed to
register any failure of such lights. Alternatively, Section
17.47(a)(2) of the Rules permits antenna structure owners to provide
and properly maintain an automatic alarm system designed to detect any
failure of such lights and to provide indication of such failure to
the owner. Marconi reported in its response to the LOI that it first
became aware of the obstruction light outage on January 22, 2009 and
that it notified the FAA that same day. Marconi further reported that,
although it had previously established monitoring procedures for the
visual inspection of the WHAT antenna structure by the Program
Director every 24 hours, the station's Program Director was not
informed of his responsibility for the monitoring of the obstruction
lighting on a daily basis when he took over as Program Director
earlier in the year. As a result, the Program Director failed to make
a daily observation of the obstruction lighting for several months.
Based on the evidence before us, we find that Marconi apparently
willfully and repeatedly violated Section 17.47(a) of the Rules by
failing to observe the obstruction lighting at least once each 24
hours to insure the proper operation of the antenna structure
10. 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 failing to conduct required monitoring is
$2,000. In assessing the monetary forfeiture amount, we must also take
into account the statutory factors set forth in Section 503(b)(2)(E)
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 of the Rules, and the statutory factors
to the instant case, we conclude that Marconi is apparently liable for
a ($2,000) forfeiture.
IV. ORDERING CLAUSES
11. 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, Marconi Broadcasting Company
LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of two thousand dollars ($2,000) for violation of Section
17.47(a) of the Rules.
12. 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, Marconi Broadcasting
Company LLC SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
13. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480- or Email:
ARINQUIRIES@fcc.gov. If payment is made, OMI will send electronic
notification on the date said payment is made to NER-Response@fcc.gov.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Philadelphia Office,
One Oxford Valley Building, Suite 404, 2300 East Lincoln Highway,
Langhorne, Pennsylvania 19047 and must include the NAL/Acct. No.
referenced in the caption.
15. 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.
16. 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 Marconi Broadcasting Company, LLC at
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
47 C.F.R. S: 17.46.
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also 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."
47 C.F.R. S: 17.47(a)(1).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 17.47.
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission