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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
WPGS, Inc. ) File No. EB-02-TP-242
Owner of Antenna Structure Registration ) NAL/Acct. No.
Number 1055007 in Mims, Florida )
) FRN 0003-7757-23
Titusville, Florida )
Adopted: June 2, 2003 Released: June 4, 2003
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one thousand dollars
($1,000) to WPGS, Inc. (``WPGS''), owner of an antenna
structure with antenna structure registration (``ASR'') number
1055007 in Mims, Florida, for repeated violation of Section
17.51 of the Commission's Rules (``Rules'').1 The noted
violation involves WPGS's failure to exhibit red obstruction
lighting on its antenna structure from sunset to sunrise.
2. On July 17, 2002, the Commission's Tampa, Florida Field
Office (``Tampa Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to WPGS for a forfeiture in
the amount of ten thousand dollars ($10,000).2 WPGS filed a
response to the NAL on September 24, 2002.
3. On April 23, 2002, agents from the Tampa Office
investigated a report of a tower light outage in Mims,
Florida. The agents observed that the top beacon (red
obstruction lighting) on an antenna structure located at 4220
Golden Shores Blvd. in Mims, Florida (ASR No. 1055007) was not
operating after local sunset. WPGS is the registered owner of
the antenna structure and uses it in conjunction with the
operation of its licensed station, WPGS(AM), Mims, Florida.
4. On April 25, 2002, two agents from the Tampa Office re-
inspected WPGS's antenna structure and observed that the top
beacon was still extinguished. The agents interviewed the
chief operator of WPGS(AM), who stated that he became aware of
the light outage a couple of days earlier, but admitted that
he had not logged the outage in the station logs or notified
the Federal Aviation Administration (``FAA'') of the outage.3
5. On May 13, 2002, the Tampa Office received a letter
from the owner of the property at 4220 Golden Shore Blvd., who
stated that the top beacon on the WPGS tower had been out for
over two months. The property owner also stated that he had
contacted WPGS's station engineer about the light outage the
day after he noticed it.
6. On July 17, 2002, the Tampa Office issued an NAL for a
$10,000 forfeiture to WPGS for failing to exhibit red
obstruction lighting on its tower between sunset and sunrise
from at least April 23 to April 25, 2002 in willful and
repeated violation of Section 17.51 of the Rules. In its
response to the NAL, WPGS does not dispute that the top beacon
on its tower was extinguished on these dates. However, WPGS
asserts that there were extenuating circumstances which the
Commission should take into consideration in determining
whether to rescind or reduce the forfeiture. Specifically,
WPGS's president states that the station engineer was saddled
with medical problems during the Spring of 2002 and did not
advise him that the beacon had been struck by lightning and
was out. WPGS's president further states that upon learning
of the outage, he immediately had the beacon replaced, and
that he has directed the engineer to check the beacon on a
regular basis and to report any outage to him immediately so
that he can have it replaced. Consequently, WPGS's president
does not believe that the problem will reoccur. In addition,
WPGS maintains that WPGS(AM) provides the area with unique
public service programming and that it will not be able to
continue this programming unless the forfeiture is cancelled
or substantially reduced. WPGS also provides copies of its
tax returns for 1999, 2000 and 2001 in support of its claim
that it cannot afford to pay the proposed $10,000 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 WPGS'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 of the Rules requires that red
obstruction lighting on an antenna structure be exhibited
continuously from sunset to sunrise. WPGS does not dispute
that the top beacon on its tower was extinguished from at
least April 23 to April 25, 2002. Accordingly, we conclude
that WPGS repeatedly7 violated Section 17.51 of the Rules.8
9. Although WPGS's president states that the station
engineer was saddled with medical problems during the Spring
of 2002 and did not advise him that the beacon was out, this
fact does not justify rescission or reduction of the proposed
forfeiture. It is well established that Commission licensees
are responsible for the acts and omissions of their
employees.9 Further, WPGS's remedial efforts to correct the
violation are not mitigating factors warranting reduction of
the proposed forfeiture.10 Moreover, we do not think that any
reduction of the proposed forfeiture is warranted based on the
asserted merits of WPGS(AM)'s programming. However, WPGS
provides its tax returns for 1999, 2000 and 2001 in support of
its claimed inability to pay the proposed forfeiture. The
Commission has repeatedly held that a company's gross revenues
are the best indicator of its ability to pay a forfeiture.11
After considering the financial documentation submitted by
WPGS, we conclude that reduction of the forfeiture amount to
$1,000 is appropriate.
10. We have examined WPGS'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 WPGS repeatedly violated Section 17.51 of the
Rules, but we reduce the forfeiture proposed for this
violation from $10,000 to $1,000.
IV. ORDERING CLAUSES
11. 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,12 WPGS, Inc. IS LIABLE FOR A MONETARY FORFEITURE in
the amount of one thousand dollars ($1,000) for repeated
violation of Section 17.51 of the Rules.
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. 200232700018 and FRN
0003-7757-23. 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.
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to WPGS, Inc., 805 North Dixie Avenue, Titusville,
Florida 32796, and to its counsel, William D. Silva, Esq., Law
Offices of William D. Silva, 5335 Wisconsin Avenue, N.W.,
Suite 400, Washington, D.C. 20015-2003.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 17.51.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232700018 (Enf. Bur., Tampa Office, released July 17, 2002).
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 Notice to Airmen
(``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 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)(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).
8 Because we have determined that the violation was repeated,
we need not make a determination as to whether the violation was
willful. In this regard, 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).
9 See MTD, Inc., 6 FCC Rcd 34, 35 (1991); Wagenvoord
Broadcasting Co., 35 FCC 2d 361 (1972).
10 See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871
(2002); Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
11 See Long Distance Direct, Inc., 15 FCC Rcd 3297, 3305
(2000); PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
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.