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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
                                   

                  MEMORANDUM OPINION AND ORDER 

Adopted:  October 29, 2002              Released:   November   1, 
2002

By the Commission:

                        I.  INTRODUCTION

1.        In this Memorandum  Opinion and  Order (``Order''),  we 
  deny an application for  review filed on May 15, 2002, by  Eure 
  Family Limited Partnership  (``Eure'') of a Memorandum  Opinion 
  and  Order (``MO&O'')1  issued  by the  Enforcement  Bureau  on 
  April 17, 2002.  In that MO&O, the Enforcement Bureau denied  a 
  petition  for  reconsideration of  a  Forfeiture  Order2  which 
  assessed  an $8,000  forfeiture  against Eure  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'').3  

                         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'')4  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  Eure5  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(FM), 
  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.6  The NAL noted that the base forfeiture amount  for 
  tower  lighting  violations   is  $10,000,7  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  inadvertent rather than willful because  its 
  contractor, Bullseye, failed  to notify it of the  extinguished 
  beacon.   In  the  Forfeiture  Order,  the  Enforcement  Bureau 
  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.  Eure filed a petition for reconsideration of  the 
  Forfeiture Order  on January 4, 2002.   In the April 17,  2002, 
  MO&O,  the Enforcement  Bureau  denied Eure's  petition,  again 
  concluding that  Eure is responsible for  the willful acts  and 
  omissions of its contractor.



                      III.      DISCUSSION

5.        In its  application for  review, Eure  argues that  the 
  forfeiture  should  be  rescinded  because  the  MO&O  is   not 
  supported by evidence  of a ``willful'' violation.  Eure  notes 
  that   the  term   ``willful''   means  the   ``conscious   and 
  deliberate''  commission or  omission of  an act8  and  asserts 
  that there  is no evidence  of ``conscious'' or  ``deliberate'' 
  action  by Eure.   Relying  on the  Merriam-Webster  Collegiate 
  Dictionary  definitions of  ``conscious''  and  ``deliberate,'' 
  Eure  maintains  that the  ``willful''  standard  requires  the 
  Commission  to  prove ``that  Eure's  conduct  was  done  after 
  perceiving, apprehending, or noticing that the tower light  was 
  out with  a degree  of controlled thought  or observation''  or 
  ``that  Eure  thought  about  deliberately  or  had  a   formal 
  discussion before  deciding not to report  the tower light  was 
  out.''  Eure contends  that nothing in the record  demonstrates 
  that it should or  could have known about the outage.   Rather, 
  Eure states  that it had an agreement  with a party whose  duty 
  it was to monitor the lights, Bullseye, and Bullseye failed  to 
  live up to that agreement.   Eure also argues that there is  no 
  evidence of  a willful  violation by  Bullseye.  Finally,  Eure 
  asserts  that it  disagrees with  Commission precedent  holding 
  that Commission  licensees and regulatees  are responsible  for 
  the   willful  acts   and   omissions  of   their   independent 
  contractors.

6.        We reject Eure's  contention that  the Commission  must 
  show that  Eure knew about  the light outage  on its tower  and 
  made a deliberate decision  not to repair the outage or  report 
  the  outage  to  the  FAA  in  order  to  establish  a  willful 
  violation of Section  17.51(a).  It is irrelevant whether  Eure 
  knew  about the  light  outage on  its  tower because,  as  the 
  Bureau correctly concluded in the MO&O, Eure is liable for  the 
  willful acts and omissions of Bullseye.  We note that when  the 
  Commission  revised the  antenna structure  rules in  1995,  it 
  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.9   Specifically,   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.''10  

7.          Moreover,  as  the Bureau  stated  in the  MO&O,  the 
  Commission has  long held that  licensees and other  Commission 
  regulatees are responsible for the acts and omissions of  their 
  employees    and    independent    contractors,11    and    has 
  ``consistently  refused  to excuse  licensees  from  forfeiture 
  penalties   where   actions   of   employees   or   independent 
  contractors have resulted in violations.''12  Eure states  that 
  it disagrees with Wagenvoord Broadcasting Co., a case cited  in 
  the  MO&O in  which  the  Commission held  that  licensees  are 
  responsible for  the acts  and omissions  of their  independent 
  contractors, in  that this case  has never been  reviewed by  a 
  court and provides  no reasoning for expanding the policy  that 
  licensees are  responsible for the acts  of their employees  to 
  include  independent  contractors.13  However,  the  fact  that 
  this case  has never been reviewed by  a court does not  negate 
  its holding.  Further, the Commission has explained that  under 
  long  established principles  of common  law, statutory  duties 
  are nondelegable and  that employers are routinely held  liable 
  for   breach  of   statutory   duties  by   their   independent 
  contractors.14    Therefore,  Eure's   lease   agreement   with 
  Bullseye does  not relieve Eure  of its primary  responsibility 
  to maintain the lighting on its tower or its liability for  any 
  failure by Bullseye.  

8.        In the instant  case, Eure had  a lease agreement  with 
  Bullseye, which required  Bullseye to monitor the tower  lights 
  and  notify  Eure  of any  lighting  failure.15   There  is  no 
  evidence  that Bullseye  made any  attempt to  comply with  the 
  tower lighting  rule.  Neither Eure  nor Bullseye  reprogrammed 
  the  telephone  dial-up  device  used  to  monitor  the   tower 
  lighting  after Eure  sold its  FM  station, WXEZ,  in  October 
  2000,16  and Bullseye  did not  inspect  the device  even  once 
  between October  2000 and June  9, 2001 to  ensure that it  was 
  functioning properly.  Thus, Bullseye failed either to  monitor 
  the tower  lights daily  or to properly  maintain an  automatic 
  alarm system as required  by the rules,17 which would have  led 
  it to  discover the lighting outage.   We therefore agree  with 
  the Bureau's  finding in the MO&O  that Bullseye's conduct  was 
  willful.   As   explained  above,  Eure   is  responsible   for 
  Bullseye's  willful   conduct.   Accordingly,  we  affirm   the 
  Bureau's  conclusion  that   Eure  is  liable  for  an   $8,000 
  forfeiture for failing  to exhibit red obstruction lighting  on 
  its antenna  structure between  sunset and  sunrise in  willful 
  violation of Section 17.51(a) of the Rules.  

                      IV.  ORDERING CLAUSES

9.        Accordingly, IT IS  ORDERED that,  Section 1.115(g)  of 
  the Rules,18 Eure Family Limited Partnership's application  for 
  review IS DENIED.

10.       IT IS FURTHER  ORDERED that 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.19  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  Operations  Group,  445  12th  Street,  S.W., 
  Washington, D.C. 20554.20

11.       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
                         


                         Marlene H. Dortch
                         Secretary
_________________________

  1 Eure  Family Limited Partnership,  DA 02-878 (released  April 
17, 2002).

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

  3 47 C.F.R.  17.51(a).  

  4 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.

  5 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.

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

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

  8  Section  312(f)  of  the  Communications  Act  of  1934,  as 
amended, (``Act'') states 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 ....''  47 U.S.C.   
312(f).  The Commission has  stated that 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) 
(``Southern California'').

  9   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); see also 47 C.F.R.  
17.2(c) (``Notwithstanding any agreements made between the  owner 
and any entity designated  by the owner  to maintain the  antenna 
structure, the  owner is  ultimately responsible  for  compliance 
with the requirements of this part.'').

  10 11 FCC Rcd at 4296.

  11  See  MTD,  Inc.,  6  FCC  Rcd  34,  35  (1991);  Wagenvoord 
Broadcasting Co., 35 FCC 2d 361 (1972).

  12 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)).

  13 Eure dismisses the other cases cited in the MO&O in  support 
of  this  policy,  asserting  that  they  simply  reiterate   the 
Commission's policy that licensees  are responsible for the  acts 
and omissions of their employees and independent contractors.

  14  See e.g.,  Vista Services  Corporation, 15  FCC Rcd  20646, 
20650 (2000), citing Restatement [Second] of Torts  409, comment 
b at 371 and Alva  Steamship Co., Ltd. v.  City of New York,  616 
F.2d  605,  609  (2d  Cir.  1980)  (exception  to  the  rule   of 
nonliability for  the  negligence of  independent  contractor  is 
``the negligence of an independent contractor who performs a duty 
imposed by statute on the employer'').  

  15  Eure   asserts  that  Bullseye   misunderstood  its   legal 
obligations under  the  lease  agreement.   In  support  of  this 
assertion, Eure  provided  a  letter from  Jim  Campana,  one  of 
Bullseye's principals  and manager  of Station  WSRV, who  stated 
that he was unaware that the lease agreement required Bullseye to 
monitor the tower lights.  Mr. Campana further stated that he was 
present at the  negotiation of  the monthly fee  under the  lease 
agreement, but that the other details of the lease agreement were 
handled by Bullseye's other principals.  In addition, Mr. Campana 
stated that after  learning of  the light outage,  he spoke  with 
Bullseye's engineer, Joe Wetherbee, who told him that there is  a 
dial-up device  to monitor  the lights  which was  programmed  to 
notify Eure's engineer at WXEZ.   Mr. Campana asserted that  this 
device apparently was never reprogrammed to notify Mr.  Wetherbee 
when Eure sold WXEZ in October 2000.  Thus, while Mr. Campana may 
not have been  aware of  Bullseye's obligations  under the  lease 
agreement, Bullseye's  other principals  and Bullseye's  engineer 
were aware that the lease agreement obligated Bullseye to monitor 
the tower lights.  

  16  It is  not  clear from  the  record whether  Eure  informed 
Bullseye when it  sold the FM  station in October  2000 that  the 
dial-up device had to be reprogrammed.

  17 47 C.F.R.  17.47.

  18 47 C.F.R.  1.115(g).

  19 47 U.S.C.  504(a).

  20 See 47 C.F.R.  1.1914.