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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 )
Adopted: May 9, 2003 Released: May 13, 2003
By the Chief, Enforcement Bureau:
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.
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.
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
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
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.
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'').
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.