Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

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.

*****************************************************************



                           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
                                   

                  MEMORANDUM OPINION AND ORDER 

Adopted:  April 15, 2002                Released:  April 17, 2002

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In this Memorandum  Opinion and  Order (``Order''),  we 
  deny a petition  for reconsideration filed on January 4,  2002, 
  by  Eure Family  Limited  Partnership (``Eure'').   Eure  seeks 
  reconsideration of a Forfeiture Order1 which issued a  monetary 
  forfeiture against Eure in the amount of $8,000 for failure  to 
  exhibit  red  obstruction  lighting  on  its  Mathews   County, 
  Virginia  antenna  structure  between  sunset  and  sunrise  in 
  willful  violation  of Section  17.51(a)  of  the  Commission's 
  Rules (``Rules'').2  

                         II.  BACKGROUND

2.        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.

3.        On July  2, 2001,  the Commission's  Norfolk,  Virginia 
  Resident Agent Office  (``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.

4.        On August 16, 2001, the Norfolk Office issued a  Notice 
  of   Apparent  Liability   for  Forfeiture   (``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.5  The NAL noted that the base forfeiture amount  for 
  tower  lighting  violations   is  $10,000,6  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  did 
  not dispute that  the violation occurred, but argued that  that 
  the  violation   was  not  willful   because  its   contractor, 
  Bullseye, failed to  notify it of the extinguished beacon.   In 
  the Forfeiture  Order, we rejected  this argument, noting  that 
  the Commission  has long  held licensees  and other  Commission 
  regulatees  responsible for  the acts  and omissions  of  their 
  employees and independent contractors.

                      III.      DISCUSSION

5.        In its petition for  reconsideration, Eure argues  that 
  the Forfeiture Order  should be vacated because the Bureau  did 
  not  consider its  explanation of  the matter  and because  the 
  Forfeiture Order  is not supported by  probative evidence of  a 
  ``willful   or  repeated''   violation.    Specifically,   Eure 
  maintains that  the Bureau failed  to consider its  explanation 
  that the violation was inadvertent, not willful.  Eure  asserts 
  that its conduct was  not willful because it did not know  that 
  the beacon was extinguished.  In this regard, Eure states  that 
  it had an agreement  with a party whose duty it was to  monitor 
  the lights  and the party failed to  live up to the  agreement.  
  Eure further asserts that  if it had known that the beacon  was 
  extinguished, it would  have promptly repaired it, and that  it 
  did in fact repair the beacon when it learned of the outage.

6.        We reject Eure's assertion  that we failed to  consider 
  its  explanation  for  the  violation.   The  Forfeiture  Order 
  discussed Eure's  explanation at great  length.  The fact  that 
  we disagreed with  and rejected its explanation does not  mean, 
  as  Eure   contends,  that   we  ignored   its  arguments   and 
  ``mechanistically'' issued the Forfeiture Order.

7.        Moreover, we reject Eure's assertion that the violation 
  was not  willful because  its contractor,  Bullseye, failed  to 
  inform  it that  the beacon  was extinguished.   Eure does  not 
  deny that  Bullseye's failure to maintain  the lighting on  the 
  antenna  structure  was  willful.   Rather,  Eure  argues  that 
  nothing in  the record  demonstrates that Eure  knew or  should 
  have known about the extinguished beacon and that it cannot  be 
  sanctioned for the  actions of its contractor.  We find  Eure's 
  argument wholly  unpersuasive.  That Bullseye  may have  failed 
  to live up to its agreement with Eure is a private  contractual 
  matter  between Eure  and  Bullseye  and does  not  negate  the 
  violation  in this  case.  As  we explained  in the  Forfeiture 
  Order, the Commission has consistently held that licensees  and 
  other Commission  regulatees are responsible  for the acts  and 
  omissions of their employees and independent contractors  under 
  the doctrine of respondeat superior.  See MTD, Inc., 6 FCC  Rcd 
  34,  35 (1991);  Wagenvoord Broadcasting  Co.,  35 FCC  2d  361 
  (1972);  SpectraSite Communications,  Inc., 16  FCC Rcd  17668, 
  17669 (Enf. Bur.  2001); Netcom Technologies, Inc., 16 FCC  Rcd 
  9524, 9526  (Enf. Bur. 2001).  Indeed, it  is a basic tenet  of 
  agency law  that the actions of  an employee or contractor  are 
  imputed to the  employer and ``the Commission has  consistently 
  refused  to excuse  licensees from  forfeiture penalties  where 
  actions of employees  or independent contractors have  resulted 
  in violations.''   See American  Paging, Inc.  of Virginia,  12 
  FCC Rcd 10417, 10420 (Wireless Bur., Enf. and Cons. Inf.  Div., 
  1997)  (quoting Triad  Broadcasting Company,  Inc., 96  FCC  2d 
  1235, 1244  (1984) (``Triad'')).  Thus,  it is irrelevant  that 
  the  violation is  attributable  to Eure's  contractor  because 
  Eure  is liable  for  the willful  acts  and omissions  of  its 
  contractor.7

8.        Eure argues that Southern California Broadcasting  Co., 
  6 FCC Rcd  4387 (1991) (``Southern California''), a case  cited 
  in  the  Forfeiture   Order,  is  ten  years  old  and   easily 
  distinguishable from  the instant case.   However, it is  clear 
  from a  plain reading  of the  Forfeiture Order  that we  cited 
  Southern  California in  support of  the proposition  that  the 
  definition of the term ``willful'' in Section 312(f)(1) of  the 
  Communications  Act  of  1934,8  as  amended,  (``Act'')   also 
  applies to  the term ``willful'' as  used in Section 503(b)  of 
  the Act.9  Eure does not dispute this proposition.   Therefore, 
  it is immaterial that  Southern California is ten years old  or 
  that it is factually dissimilar to the instant case.  

9.        Eure also  attempts to  distinguish three  other  cases 
  which  we cited  in the  Forfeiture Order.   In each  of  these 
  cases,  the Commission  reaffirms  that a  violation  resulting 
  from an inadvertent mistake is considered a willful  violation.  
  See  PJB Communications  of  Virginia,  Inc., 7  FCC  Rcd  2088 
  (1992) (``PJB''); Standard Communications Corp., 1 FCC Rcd  358 
  (1986)  (``Standard''); and  Triad, 96  FCC 2d  at 1242.   Eure 
  asserts that  PJB is  distinguishable because  the licensee  in 
  that case  ``knew it was doing  the act in question,''  whereas 
  Eure  did   not  know  that  the   beacon  on  its  tower   was 
  extinguished,  and  because the  violation  in  that  case  was 
  repeated.  In  addition, Eure asserts  that Standard and  Triad 
  are  inapposite because  the  violations in  those  cases  were 
  repeated.  We cited  these three cases in the Forfeiture  Order 
  in support of  our finding that Bullseye's failure to  maintain 
  the lighting on  the antenna structure was willful.  Eure  does 
  not dispute this  finding.  Eure's assertions concerning  these 
  cases  appear to  be premised  on  its belief  that it  is  not 
  responsible  for the  acts  and omissions  of  its  contractor, 
  which, as discussed above, is erroneous.

10.       Finally, Eure argues that  the instant case is  similar 
  to   Vernon  Broadcasting,   Inc.,  60   RR  2d   1275   (1986) 
  (``Vernon''),  where  the  Commission  cancelled  a  forfeiture 
  issued for  failure to maintain adequate  fencing around an  AM 
  tower  in violation  of  Section  73.49 of  the  Rules10  after 
  concluding that  the violation was  not willful.  We  disagree.  
  In Vernon,  the Commission  determined that  the violation  was 
  not willful  because the evidence  indicated that the  licensee 
  regularly monitored  the antenna  site.  Id.   By contrast,  in 
  the instant  case, the record clearly  shows that neither  Eure 
  nor its  contractor monitored the  antenna structure.  In  this 
  regard, the  record indicates  that neither  Eure nor  Bullseye 
  reprogrammed the telephone  dial-up device used to monitor  the 
  tower lighting after Eure  sold its FM station in October  2000 
  and  Bullseye did  not inspect  the  device even  once  between 
  October  2000  and  June   9,  2001  to  ensure  that  it   was 
  functioning  properly.  It  is also  apparent from  the  record 
  that Eure  did nothing to supervise  or monitor the  activities 
  of its contractor. 

                      IV.  ORDERING CLAUSES

11.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  405  of the  Act,11  and Section  1.106  of the  Rules,12  Eure 
  Family Limited  Partnership's petition  for reconsideration  of 
  the  December 5,  2001,  Forfeiture  Order IS  DENIED  and  the 
  issuance of the $8,000 forfeiture IS AFFIRMED.

12.       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

13.       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 Eure Family Limited Partnership, 16 FCC Rcd 21302 (Enf.  Bur. 
2001).

  2 47 C.F.R.  17.51(a).  

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

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

  7  Because we  conclude that  Eure's violation  is willful,  we 
need not address its argument that the violation is not repeated.

  8 47 U.S.C.  312(f)(1).

  9 47 U.S.C.  503(b).

  10 47 C.F.R.  73.49.  

  11 47 U.S.C.  405.

  12 47 C.F.R.  1.106.

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

  14 See 47 C.F.R.  1.1914.