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

In the Matter of                )
                                )
Mortenson Broadcasting Co.      )    File No. EB-02-CF-338
                                )    NAL/Acct. No. 200232340002
Owner of Antenna Structure      )    FRN 0004-1688-29
Registration No. 1020434        )
South Charleston, West Virginia )    

                        FORFEITURE ORDER 

Adopted:  May 9, 2003              Released:  May 13, 2003

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  Mortenson Broadcasting Co. (``Mortenson''),  owner 
  of  an antenna  structure with  Antenna Structure  Registration 
  (``ASR'') number  1020434 in South  Charleston, West  Virginia, 
  for willful and  repeated violation of Section 17.51(a) of  the 
  Commission's Rules (``Rules'').1  The noted violation  involves 
  Mortenson's failure to exhibit red obstruction lighting on  its 
  antenna structure between sunset and sunrise.

2.        On July 9,  2002, the  Commission's Columbia,  Maryland 
  Field Office (``Columbia Office'') issued a Notice of  Apparent 
  Liability  for   Forfeiture  (``NAL'')  to   Mortenson  for   a 
  forfeiture in  the amount of  ten thousand dollars  ($10,000).2  
  Mortenson filed a response to the NAL on August 7, 2002.

                         II.  BACKGROUND

3.        On May  15, 2002,  at approximately  9:20 p.m.,  agents 
  from  the  Columbia   Office  observed  that  the   obstruction 
  lighting on  an antenna  structure with ASR  number 1020434  in 
  South Charleston,  West Virginia, was extinguished.   Mortenson 
  is the registered owner  of this antenna structure and uses  it 
  in  conjunction with  the operation  of its  licensed  station, 
  WSCW(AM), South Charleston, West Virginia.

4.        On May 16, 2002, at approximately 9:30 a.m., one of the 
  agents  visited the  WSCW studio  and determined  that  station 
  personnel  were unaware  that  the  tower had  been  unlit  the 
  previous night.  Chris Colagrosso, WSCW's program director  and 
  designated chief  operator, initially  told the  agent that  he 
  had observed the  tower lights at approximately 6:00 a.m.  that 
  morning and that  the lights were functioning properly at  that 
  time.   Subsequently,  however,  Mr.  Colagrosso  stated   that 
  perhaps  he had  observed the  lights  on an  adjacent  antenna 
  structure.   The  agent  advised  Mr.  Colagrosso  and   WSCW's 
  station manager that  Mortenson was required to notify the  FAA 
  of the unlit tower immediately if the outage was not  corrected 
  within 30 minutes.  

5.        On May  23,  2002,  the  agent  contacted  the  Federal 
  Aviation  Administration  (``FAA'') Flight  Service  Center  in 
  Elkins,  West Virginia.   FAA  personnel told  the  agent  that 
  Mortenson notified the FAA of the light outage at 8:14 a.m.  on 
  May 17, 2002.

6.        On July 9, 2002, the Columbia Office issued an NAL  for 
  a  $10,000  forfeiture to  Mortenson  for  failing  to  exhibit 
  obstruction lighting  on its antenna  structure between  sunset 
  and  sunrise  in willful  and  repeated  violation  of  Section 
  17.51(a) of the Rules.   In its response to the NAL,  Mortenson 
  argues  that no  forfeiture  is warranted  for  this  violation 
  because  the  violation  was  neither  willful  nor   repeated.  
  Mortenson asserts  that the violation  was not willful  because 
  the  lighting   failure  was   the  result   of  an   equipment 
  malfunction that was beyond its control, the tower lighting  is 
  monitored visually  each day by  station personnel and  through 
  use of  an automatic alarm system,  and its engineer  attempted 
  to  correct the  problem  as quickly  as  possible.   Mortenson 
  asserts that the  violation was not repeated because the  tower 
  was unlit  for only one day.   In support of these  assertions, 
  Mortenson provides written  statements from Mr. Colagrosso  and 
  Lester Lovejoy, WSCW's  chief engineer.  Mr. Colagrosso  states 
  that  he believes  that  the FCC  agent  who visited  WSCW  was 
  mistaken in  reporting that the  tower lights were  out on  the 
  evening  of May  15,  2002.   In this  regard,  Mr.  Colagrosso 
  asserts that  he observed the  tower lights on  the morning  of 
  May 16,  2002 and was ``almost  positive'' that the beacon  was 
  flashing,  and  that  the  automatic  alarm  monitor  did   not 
  indicate any problem  with the lights.  Mr. Colagrosso  further 
  states that  after speaking with  the FCC agent,  he asked  Mr. 
  Lovejoy to  check the lights, and  that he assumed Mr.  Lovejoy 
  would notify  the FAA if there was  a problem with the  lights.  
  Mr.  Lovejoy states that  on the  evening of May  16, 2002,  he 
  checked the  tower lights  and confirmed that  the lights  were 
  out,  but he was  unable to  correct the outage  at that  time.  
  Mr. Lovejoy asserts that  he thought there would be no harm  in 
  waiting until the next  morning to notify the FAA of the  light 
  outage because there was another lit tower about 250 feet  away 
  from the  WSCW tower.3  Further, Mr.  Lovejoy reports that  the 
  outage  was  corrected  the  following  morning,  that  he  has 
  checked  the  alarm  system  to  ensure  that  it  is   working 
  properly, and that he has scheduled regular routine checks  and 
  maintenance  on the  tower  lighting and  reporting  equipment.  
  Finally,  Mortenson  argues that  no  harm  resulted  from  the 
  lights being  out for one day and  that its overall history  of 
  compliance with  the Commission's  rules supports  cancellation 
  of the forfeiture.  

                      III.      DISCUSSION

7.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the  Communications Act  of 
  1934, as amended,  (``Act''),4 Section 1.80 of the Rules,5  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  Mortenson'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.6

8.        Section  17.51(a)  of  the  Rules  requires  that   red 
  obstruction lighting on an antenna structure be exhibited  from 
  sunset  to sunrise.  On  the morning  of May 16,  2002, an  FCC 
  agent informed Mortenson employees that the tower lighting  was 
  not operating.   Mortenson admits  in its response  to the  NAL 
  that it did not  correct the light outage or report the  outage 
  to the FAA until the morning of May 17, 2002.  Accordingly,  we 
  conclude  that  Mortenson  violated  Section  17.51(a)  of  the 
  Rules.  

9.        Mortenson argues that the violation of Section 17.51(a) 
  was not  ``willful.''  We disagree.   The term ``willful,''  as 
  used in Section 503(b)  of the Act, does not require a  finding 
  that the  rule violation was intentional  or that the  violator 
  was aware  that it was committing  a rule violation.7   Rather, 
  the term ``willful'' simply requires that the violator knew  it 
  was taking the  action in question, irrespective of any  intent 
  to  violate the  Commission's  rules.8   We think  that  it  is 
  irrelevant  that Mr.  Colagrossa  may have  believed  that  the 
  tower light was functioning when he observed the tower at  6:00 
  a.m. on the morning  of May 16, 2003, or that the light  outage 
  may  have been  the result  of  an equipment  malfunction.   At 
  approximately  9:30 that  morning, an  FCC agent  informed  Mr. 
  Colagrossa of  the light outage and  advised Mr. Colagrossa  to 
  notify  the  FAA  immediately  if  the  outage  could  not   be 
  corrected within 30  minutes.  Thus, regardless of whether  Mr. 
  Colagrossa believed that he had seen the lights operating  that 
  morning or  whether he had received  an alert from the  tower's 
  automatic  alarm system,  the FCC  agent  put him  on  specific 
  notice  that  there  was a  light  outage  or  potential  light 
  outage.   Mr.  Colagrossa  made  a  conscious  and   deliberate 
  decision not  to investigate the  outage report immediately  or 
  to notify  the FAA immediately,  as advised by  the FCC  agent.  
  In this regard, we are not persuaded by Mortenson's claim  that 
  its engineer  attempted to  correct the problem  as quickly  as 
  possible.  According to  Mr. Colagrosso, Mr. Lovejoy said  that 
  he could  not check the  lighting until evening  as the  lights 
  would be  off until then.  Although it  is true that the  tower 
  lighting was not scheduled  to come on until sunset, we see  no 
  reason,  and Mortenson  offers  no explanation,  why  Mortenson 
  could not have inspected  the tower lighting during the day  to 
  determine whether  it was functioning  properly.  Tower  owners 
  routinely inspect and perform maintenance on lighting  systems, 
  including nighttime lighting systems, during daytime hours.  

10.       Furthermore, when Mortenson's engineer did confirm  the 
  light outage that evening,  he failed to notify the FAA of  the 
  outage  immediately.   That Mr.  Lovejoy  believed  that  there 
  would be  no harm in waiting until  the next morning to  notify 
  the FAA  of the lighting outage because  there was a lit  tower 
  nearby does  not excuse his  failure to notify  the FAA of  the 
  lighting outage  immediately, as required  by Section  17.48(a) 
  of  the Rules.   Moreover, the  Commission has  long held  that 
  licensees and other  Commission regulatees are responsible  for 
  the acts  and omissions of  their employees.9  Thus,  Mortenson 
  is responsible  for Mr.  Lovejoy's failure to  notify the  FAA.  
  Accordingly, based  on the record before  us, we conclude  that 
  Mortenson willfully violated Section 17.51(a) of the Rules.

11.          We  find  that  Mortenson's  violation  of   Section 
  17.51(a)  was also  repeated.10   A violation  is  ``repeated'' 
  within the  meaning of Section 503(b) of  the Act if it  occurs 
  more  than  once or  it  continues  for more  than  one  day.11  
  Mortenson's violation of Section 17.51(a) was repeated  because 
  it continued  from at least the evening  of May 16, 2002,  when 
  Mortenson observed the  light outage, until the morning of  May 
  17, 2002, when  Mortenson finally contacted the FAA.  Thus,  we 
  conclude that  the record supports  a finding that  Mortenson's 
  violation of Section 17.51(a) was repeated.  

12.       Mortenson further argues that no harm resulted from the 
  tower lights being out for one day.  We think it is  irrelevant 
  that  there is  no  indication  that air  safety  was  actually 
  compromised by  the lighting outage.   The potential hazard  to 
  air  navigation presented  by the  unlit tower  raises  serious 
  safety of  life concerns justifying  a forfeiture.12   However, 
  after  considering Mortenson's  overall history  of  compliance 
  with the Commission's rules, we conclude that reduction of  the 
  proposed forfeiture from $10,000 to $8,000 is warranted.  

13.       We  have  examined  Mortenson'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 Mortenson willfully  and repeatedly  violated 
  Section 17.51(a)  of the  Rules, but we  reduce the  forfeiture 
  proposed for this violation from $10,000 to $8,000.  

                      IV.  ORDERING CLAUSES

14.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503 of  the Act, and  Sections 0.111, 0.311  and 1.80(f)(4)  of 
  the  Rules,13  Mortenson  Broadcasting  Co.  IS  LIABLE  FOR  A 
  MONETARY FORFEITURE  in the  amount of  eight thousand  dollars 
  ($8,000)  for  willful   and  repeated  violation  of   Section 
  17.51(a) of the Rules.

15.       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.14  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.  200232340002 and  FRN 
  0004-1688-29.  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. 
  20554.15

16.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be sent by first  class mail and certified mail return  receipt 
  requested to Mortenson  Broadcasting Co., 3270 Blazer  Parkway, 
  Suite  101, Lexington,  Kentucky  40509, and  to  its  counsel, 
  Jerrold Miller,  Esq., Miller  & Miller, P.C.,  1990 M  Street, 
  N.W., Suite 760, Washington, D.C. 20036.

                         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. 
200232340002 (Enf. Bur., Columbia Office, released July 9, 2002).

  3 Mr. Colagrosso states that when he learned on the morning  of 
May 17, 2002  that Mr. Lovejoy  had not notified  the FAA of  the 
light outage, he immediately did so.

  4 47 U.S.C.  503(b).

  5 47 C.F.R.  1.80.

  6 47 U.S.C.  503(b)(2)(D).

  7 Section  312(f)(1) of the Act,  47 U.S.C.  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,' 
... 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) (``Southern California'').  

  8  Id.  

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

  10  Section 503(b)(1)  of the  Act provides  that a  forfeiture 
penalty may  be imposed  if the  violation is  either willful  or 
repeated.  47 U.S.C.  503(b)(1).

  11  Section 312(f)(2)  of the  Act provides  that ``[t]he  term 
`repeated,' ... 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 U.S.C.    312(f)(2).   See  Southern 
California, 6 FCC Rcd at 4388.

  12 Cf.  AT&T Wireless Services, Inc.,  17 FCC Rcd 21866,  21871 
(2002) (finding it irrelevant that  there was no indication  that 
air safety was actually compromised by unpainted coaxial cable on 
a tower because the potential hazard to air navigation  presented 
by the unpainted  cable raised  serious safety  of life  concerns 
justifying a $10,000 forfeiture).

  13 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  14 47 U.S.C.  504(a).

  15 See 47 C.F.R.  1.1914.