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

In the Matter of                )
                                )
Eure Family Limited Partnership )    File No. EB-01-NF-201
                                )
Owner of Antenna Structure      )    NAL/Acct. No. 200132640006
Registration # 1018162          )
Mathews County, Virginia        )    FRN 0005-0271-72
                                   

                        FORFEITURE ORDER 

Adopted:  December 3, 2001              Released:   December   5, 
2001

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary forfeiture  in the  amount of  eight thousand  dollars 
  ($8,000)  to Eure  Family  Limited Partnership  (``Eure'')  for 
  willful  violation  of Section  17.51(a)  of  the  Commission's 
  Rules  (``Rules'').1   The  noted  violation  involves   Eure's 
  failure  to exhibit  red obstruction  lighting on  its  Mathews 
  County, Virginia antenna structure between sunset and sunrise.

2.        On August 16, 2001, the Commission's Norfolk, Virginia, 
  Resident Agent Office  (``Norfolk Office'') issued a Notice  of 
  Apparent  Liability for  Forfeiture  (``NAL'') to  Eure  for  a 
  forfeiture in the  amount of eight thousand dollars  ($8,000).2  
  Eure filed a response to the NAL on September 17, 2001.

                         II.  BACKGROUND

3.        Eure owns  an  antenna  structure  in  Mathews  County, 
  Virginia, with antenna structure registration (``ASR'')  number 
  1018162.  The ASR  for the Mathews County tower indicates  that 
  red  obstruction  lighting  is  required  between  sunset   and 
  sunrise.  On  June 8,  2001, a resident  of Harfield,  Virginia 
  contacted  the  FCC  and reported  that  he  had  observed  the 
  Mathews County tower without  its top beacon lit at night.   On 
  June  9,  2001,  after  sunset,  an  FCC  agent  inspected  the 
  structure  and  observed  that the  top  beacon  was  not  lit.  
  Another  FCC   agent  then  contacted   the  Federal   Aviation 
  Administration's  (``FAA'') Leesburg,  Virginia Flight  Service 
  Station, which  advised the agent that  there was no Notice  to 
  Airmen (``NOTAM'')3  in effect  for the  Mathews County  tower.  
  At  the FCC agent's  request, the  FAA issued a  NOTAM for  the 
  Mathews County tower.

4.        On July 2, 2001, the Norfolk Office issued a Notice  of 
  Violation  (``NOV'')  to  Eure4  for  failing  to  exhibit  red 
  obstruction  lighting  on  the  Mathews  County  tower  between 
  sunset  and sunrise  in violation  of Section  17.51(a) of  the 
  Rules.  Eure filed a response to the NOV on July 20, 2001.   In 
  this response,  Eure stated that it  had operated the tower  as 
  an antenna  site for WXEZ-FM, Yorktown,  Virginia, and that  it 
  had  monitored  the tower  lights  using  a  telephone  dial-up 
  device that  was programmed  to notify WXEZ's  engineer of  any 
  lighting  outages until  it sold  WXEZ in  October 2000.   Eure 
  further stated that  by lease agreement dated January 5,  1999, 
  it  leased  space  on the  Mathews  County  tower  to  Bullseye 
  Broadcasting,   LLC    (``Bullseye''),   licensee   of    WSRV, 
  Deltaville,  Virginia,  and   that  the  terms  of  the   lease 
  agreement required  Bullseye to  monitor the  tower lights  and 
  notify Eure  of any lighting failures.  Eure provided a  letter 
  from a principal  of Bullseye, who stated that Bullseye  failed 
  to  notify Eure  of the  malfunctioning beacon  because he  was 
  unaware that the lease agreement obligated Bullseye to  monitor 
  the tower  lights.  Bullseye's principal  also stated that  the 
  dial-up device  used to  monitor the tower  lighting was  never 
  reprogrammed  to notify  Bullseye's  engineer of  any  lighting 
  outages after  Eure sold WXEZ in  October 2000.  Finally,  Eure 
  indicated that the malfunctioning beacon had been repaired  and 
  that  the dial-up  device  had recently  been  reprogrammed  to 
  notify Bullseye's engineer of any lighting outages.

5.        On August 16,  2001, the Norfolk  Office issued an  NAL 
  for a  forfeiture in the amount of  $8,000 to Eure for  failure 
  to  exhibit red  obstruction  lighting on  the  Mathews  County 
  tower  between  sunset and  sunrise  in  violation  of  Section 
  17.51(a) of the Rules.  The NAL noted that the base  forfeiture 
  amount for tower  lighting violations is $10,000,5 but  reduced 
  the  forfeiture amount  to $8,000  based on  Eure's history  of 
  compliance with the Commission's rules.  Eure filed a  response 
  to the NAL on September 17, 2001.  In this response, Eure  does 
  not dispute that the violation occurred.  However, Eure  argues 
  that  the NAL  should be  vacated  because the  Norfolk  Office 
  failed to  consider Eure's  explanation for  the violation  set 
  forth in  its response to  the NOV.  In  addition, Eure  argues 
  that the NAL should  be vacated because it is not supported  by 
  probative  evidence of  a  ``willful or  repeated''  violation.  
  Eure asserts that the violation was not willful because it  had 
  a  contract  with  a  third  party  who  was  responsible   for 
  monitoring  the tower  lights and  the  third party  failed  to 
  notify it  of the extinguished beacon.   Eure asserts that  the 
  violation was not  repeated because the FCC agent observed  the 
  violation on only one day, June 9, 2001.

                      III.      DISCUSSION

6.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the  Communications Act  of 
  1934, as  amended (``Act''),6 Section 1.80  of the Rules,7  and 
  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)   (``Policy  Statement'').   In  examining   Eure's 
  response,  Section  503(b)   of  the  Act  requires  that   the 
  Commission 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 other such  matters as  justice 
  may require.8

7.        Section 17.51(a)  of the  Rules provides  that all  red 
  obstruction lighting must  be exhibited from sunset to  sunrise 
  unless otherwise specified  in the ASR.  Eure does not  dispute 
  that the red  obstruction lighting on the Mathews County  tower 
  was not lit after sunset on June 9, 2001.  Thus, Eure  violated 
  Section 17.51(a) of the Rules.

8.        We reject  Eure's  argument  that  the  NAL  should  be 
  vacated  because  the  Norfolk  Office  did  not  consider  the 
  explanation for the violation set forth in its response to  the 
  NOV.  Although  the NAL  did not discuss  the explanation,  the 
  Norfolk Office fully  considered Eure's response to the NOV  in 
  determining   that   an   NAL   was   appropriate   under   the 
  circumstances of this  case.  Furthermore, as discussed  below, 
  we have also reviewed Eure's explanation for the violation  and 
  find that it does  not warrant rescission or mitigation of  the 
  forfeiture.

9.        Eure states that  pursuant to a  lease agreement  dated 
  January  5, 1999,  a third  party,  Bullseye, was  required  to 
  monitor the lights on the Mathews County tower and notify  Eure 
  of any  lighting failures.   However, the  Commission has  long 
  held that licensees  and Commission regulatees are  responsible 
  for the acts  and omissions of their employees and  independent 
  contractors.  See Netcom  Technologies, Inc., 16 FCC Rcd  9524, 
  9526  (Enf. Bur. 2001);  MTD, Inc.,  6 FCC Rcd  34, 35  (1991); 
  Wagenvoord Broadcasting Co.,  35 FCC 2d 361 (1972).   Moreover, 
  the Commission  has made  clear that  antenna structure  owners 
  will   have   primary  responsibility   for   maintaining   the 
  prescribed painting  and lighting on  their antenna  structures 
  and will not be permitted to circumvent this responsibility  by 
  entering into  contractual arrangements.  See Streamlining  the 
  Commission's   Antenna  Structure   Clearance   Procedure   and 
  Revision  of  Part 17  of  the  Commission's  Rules  Concerning 
  Construction, Marking and  Lighting Antenna Structures, 11  FCC 
  Rcd  4272,  4294-96  (1995)  (``Streamlining``);  see  also  47 
  C.F.R.  17.6(a).  In Streamlining, the Commission stated  that 
  ``[n]otwithstanding   private  contractual   arrangements   ... 
  structure  owners,   are  and   will  continue   to  be,   held 
  responsible for  maintaining the prescribed structure  painting 
  and/or  lighting.   Any  resolution  concerning  a  failure  to 
  perform  pursuant   to  a   private  contractual   arrangement, 
  including appropriate  remedies or damages,  are matters to  be 
  resolved in  a local forum.''   11 FCC Rcd  at 4296.  Thus,  we 
  conclude  that Eure's  lease agreement  with Bullseye  did  not 
  relieve  Eure of  its primary  responsibility to  maintain  the 
  lighting  on  the  Mathews  County  tower  and  that  Eure   is 
  responsible for any  failure by Bullseye to maintain the  tower 
  lighting.

10.       We also  conclude  that  the  failure  to  exhibit  red 
  obstruction lighting on  the Mathews County tower after  sunset 
  on  June  9,  2001  was  a  ``willful''  violation  of  Section 
  17.51(a) of the  Rules.  Section 312(f)(1) of the Act  provides 
  that  ``the term  `willful,' when  used with  reference to  the 
  commission  or omission  of any  act,  means the  conscious  or 
  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 ....''9  This definition  applies 
  to the term ``willful''  as used in Section 503(b) of the  Act.  
  See  Southern  California Broadcasting  Co.,  6  FCC  Rcd  4387 
  (1991).  Moreover, a  violation resulting  from an  inadvertent 
  mistake  or  a  failure  to  become  familiar  with  the  FCC's 
  requirements  is  considered  a  willful  violation.   See  PBJ 
  Communications  of  Virginia, Inc.,  7  FCC  Rcd  2088  (1992); 
  Standard  Communications Corp.,  1 FCC  Rcd 358  (1986);  Triad 
  Broadcasting  Co., Inc.,  96 FCC  2d  1235, 1242  (1984).   The 
  violation  in this  case was  willful because  Bullseye  should 
  have  known  about  the  malfunctioning  top  beacon.   Section 
  17.47(a)  of the  Rules requires  tower owners  to ensure  that 
  tower lights  are functioning properly  by making daily  visual 
  observation of the lights, by making daily visual  observations 
  of a  properly maintained  indicator designed  to register  any 
  failure  of  such   lights,  or  by  properly  maintaining   an 
  automatic alarm system  designed to detect any failure of  such 
  lights  and  provide  notification  of  such  failure  to   the 
  owner.10  In addition,  Section 17.47(b) of the Rules  requires 
  tower  owners  to  inspect at  least  every  three  months  all 
  automatic or mechanical  control devices, indicators and  alarm 
  systems associated with the tower lighting to ensure that  such 
  apparatus  is  functioning properly.11   Based  on  the  record 
  before  us, it  appears that  Bullseye never  reprogrammed  the 
  dial-up  device  used  to  monitor  the  Mathews  County  tower 
  lighting after  Eure sold its  FM station in  October 2000  and 
  did not inspect the  device even once between October 2000  and 
  June 9,  2001 to ensure that  it was functioning properly.   As 
  noted above, Eure is responsible for the acts and omissions  of 
  its  contractor,  Bullseye.   Therefore,  Eure's  violation  of 
  Section 17.51(a) was willful.  Because we conclude that  Eure's 
  violation was  willful, we need not  address its argument  that 
  the violation was not repeated.

11.       We have examined Eure's response to the NAL pursuant to 
  the  statutory  factors above,  and  in  conjunction  with  the 
  Policy  Statement as  well.   As a  result  of our  review,  we 
  conclude   that  Eure   has   failed  to   provide   sufficient 
  justification  for   canceling  or   mitigating  the   proposed 
  forfeiture  amount.  Therefore,  we  affirm the  forfeiture  of 
  eight thousand dollars ($8,000).

                      IV.  ORDERING CLAUSES

12.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4)  of 
  the Rules,12 Eure  Family Limited Partnership, IS LIABLE FOR  A 
  MONETARY FORFEITURE  in the  amount of  eight thousand  dollars 
  ($8,000) for  failure to  exhibit red  obstruction lighting  on 
  its antenna  structure between  sunset and  sunrise in  willful 
  violation of Section 17.51(a) of the Rules.

13.       Payment of the forfeiture shall  be made in the  manner 
  provided for  in Section 1.80  of the Rules  within 30 days  of 
  the  release of  this Order.   If the  forfeiture is  not  paid 
  within the  period specified, the case  may be referred to  the 
  Department  of  Justice  for  collection  pursuant  to  Section 
  504(a) of  the Act.13  Payment may be  made by mailing a  check 
  or  similar instrument,  payable to  the order  of the  Federal 
  Communications  Commission,   to  the  Federal   Communications 
  Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.   The 
  payment  should reference  NAL/Acct. No.  200132640006 and  FRN 
  0005-0271-72.  Requests for  full payment under an  installment 
  plan should be  sent to: Chief, Revenue and Receivables  Group, 
  445 12th Street, S.W., Washington, D.C. 20554.14

14.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be  sent by  Certified Mail  Return Receipt  Requested to  Eure 
  Family  Limited  Partnership,  4026  George  Washington   Hwy., 
  Yorktown,  Virginia  23692,   and  to  its  counsel,  Gary   S. 
  Smithwick, Esq.,  Smithwick & Belendiuk,  P.C., 5028  Wisconsin 
  Avenue, N.W., Suite 301, Washington, D.C. 20016.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1 47 C.F.R.  17.51(a).  

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200132640006 (Enf.  Bur.,  Norfolk Office,  released  August  16, 
2001).    

  3 Tower owners are required to report any obstruction  lighting 
outages to  the  nearest Flight  Service  Station or  FAA  office 
immediately if the  outage is  not corrected  within 30  minutes.  
See 47 C.F.R.  17.48(a).  The FAA then issues a NOTAM, a written 
advisory to  aircraft  pilots  regarding a  hazard  or  potential 
hazard  of  which  they  should   be  aware.   A  NOTAM   expires 
automatically after 15 days, unless the tower owner calls the FAA 
to extend the NOTAM.

  4 The  Norfolk Office  issued the NOV  to Eure  Communications, 
Inc. because FCC records incorrectly listed Eure  Communications, 
Inc. as the owner of the  Mathews County tower.  The response  to 
the NOV, which  was signed by  C. Wesley Eure  on behalf of  both 
Eure Communications, Inc.  and Eure  Family Limited  Partnership, 
indicated that ownership  of the  tower had  been transferred  to 
Eure Family Limited Partnership.  On August 8, 2001, the  Norfolk 
Office confirmed that the  FCC records had  been updated to  list 
Eure Family  Limited  Partnership as  the  owner of  the  Mathews 
County tower.

  5 See 47 C.F.R.  1.80(b)(4).  

  6 47 U.S.C.  503(b).

  7 47 C.F.R.  1.80.

  8 47 U.S.C.  503(b)(2)(D).

  9 47 U.S.C.  312(f)(1).

  10 47 C.F.R.  17.47(a).    

  11 47 C.F.R.  17.47(b).    

  12 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  13 47 U.S.C.  504(a).

  14 See 47 C.F.R.  1.1914.