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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Sutro Corporation ) File No. EB-02-PO-136
) NAL/Acct. No.
Payette, Idaho ) FRN 0003-2822-39
Adopted: October 9, 2003 Released: October 14,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we
issue a monetary forfeiture in the amount of two
thousand four hundred ($2,400) to Sutro
Corporation (``Sutro''), for repeated violation
of Section 17.4(a) of the Commission's Rules
(``Rules'').1 The noted violation involves
Sutro's failure to register an antenna structure.
2. On July 31, 2002, the Commission's Portland,
Oregon, Resident Agent Office (``Portland
Office'') issued a Notice of Apparent Liability
for Forfeiture (``NAL'') to Sutro for a
forfeiture in the amount of three thousand
dollars ($3,000).2 Sutro filed its response to
the NAL on August 16, 2002.
3. Sutro is the owner of a 405 foot antenna
structure located in Payette, Idaho, at the
coordinates 40-03-44 North Latitude, 116-54-22
West Longitude (``the Payette tower''). Sutro
rents space on the Payette tower to various
communications users, including broadcast
stations. On May 23, 2002, following his
investigation of an interference problem
involving the Payette tower, an agent at the
Portland Office searched the Commission's antenna
registration records and determined that the
Payette tower was not registered.
4. The agent determined from property records
that Sutro owns the Payette tower. On June 11,
2002, the agent contacted Sutro's president, John
H. Runkle, and advised Mr. Runkle that the
Payette tower must be registered. On July 30,
2002, the agent again searched the Commission's
antenna registration records and again found that
the Payette tower was not registered.
5. On July 31, 2002, the Portland Office issued
a NAL for a forfeiture in the amount of $3,000 to
Sutro for failure to register the Payette tower,
in willful and repeated violation of Section
17.4(a) of the Rules. In its response to the
NAL,Sutro admits that the Payette tower was
unregistered. Sutro asserts that it made several
unsuccessful attempts to register the Payette
tower before eventually registering it on August
27, 2002.3 Sutro seeks cancellation or reduction
of the proposed monetary forfeiture, arguing that
its attempts to register the tower and a history
of overall compliance mitigate the violations.
Sutro also contends that, if a forfeiture is
imposed, it should be no more than $500.
6. 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
Sutro'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
7. Section 17.4(a) of the Rules required the
owners of existing antenna structures that were
assigned painting or lighting requirements before
July 1, 1996, to register those antenna
structures no later than July 1, 1998. The
Payette tower was subject to this requirement.7
The FCC agent's investigation and Sutro's
statements establish that the Payette tower was
unregistered from July 1, 1998, until August 27,
2002. We conclude that Sutro repeatedly violated
Section 17.4(a) of the Rules. 8
8. Section 503(b) of the Act gives the
Commission authority to assess a forfeiture
penalty against any person if the Commission
determines that the person has ``willfully or
repeatedly'' failed to comply with the provisions
of the Act or with any rule, regulation or order
issued by the Commission. In light of our
determination that Sutro's violations were
repeated, it is not necessary to determine
whether they were also willful. 9
9. Sutro's unsuccessful attempts to register the
Payette tower do not mitigate its violations of
Section 17.4(a). Sutro filed its first
application (FCC Form 854) to register the
Payette tower on June 26, 1998. 10 The
Commission dismissed that application because it
provided coordinates which differed from the
coordinates indicated in the Federal Aviation
Administration (``FAA'') clearance for the
Payette tower. The August 3, 1998, letter
dismissing Sutro's first registration application
instructed Sutro to check the accuracy of the
coordinates it provided and, if the coordinates
were accurate, file Form 7460-1 with the FAA (to
obtain a new clearance with the correct
coordinates) and also a new FCC Form 854 within
90 days (by November 1, 1998). Sutro, however,
did not file FAA Form 7460-1 until February 24,
1999, and did not file FCC Form 854 until January
28, 2000, nearly 15 months late. The Commission
returned Sutro's second registration application
on February 8, 2000, because Sutro submitted it
on an outdated form. Sutro did not file its
third registration application until August 8,
2002 -- 2 ½ years after the dismissal of its
second application and 64 days after Sutro's
president agreed to register the tower
immediately. Sutro explains this delay by
asserting that it expected to file its third
registration application after receiving a new
FAA clearance but did not learn of the new
clearance until it contacted the FAA following
the issuance of the NAL.11 This explanation is
completely inadequate because of the extreme
length of the delay and because, as explained in
the August 3, 1998, dismissal letter, Sutro did
not need to wait for a new FAA clearance before
filing its registration application. We find
that the lengthy delays in filing Sutro's second
and third registration applications evince a lack
of diligence and that Sutro's attempts to
register its tower do not mitigate its violation.
10. No mitigation is warranted on the basis of
Sutro's correction of the violation. As the
Commission stated in Seawest Yacht Brokers, 9 FCC
Rcd 6099, 6099 (1994), ``corrective action taken
to come into compliance with Commission rules or
policy is expected, and does not nullify or
mitigate any prior forfeitures or violations.''12
11. If a forfeiture is imposed, Sutro requests
that its amount be reduced to no more than $500.
Sutro cites C.W.H. Broadcasting, Inc., 17 FCC Rcd
14324 (Enf. Bur. 2002), in which a monetary
forfeiture imposed for violation of Sections
17.4(a), 17.51(a) [tower lighting]13 and 73.49
[fencing]14 of the Rules was reduced to $500.
C.W.H. Broadcasting, Inc., is inapposite. The
reduction in C.W.H. Broadcasting, Inc., was
primarily based on financial hardship, which is
not present in this case.
12. We do, however, find that Sutro has a history
of overall compliance and, accordingly, reduce
the forfeiture amount to $2,400.15
13. We have examined Sutro'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 Sutro
repeatedly violated Section 17.4(a) of the Rules
and we find that, although cancellation of the
proposed monetary forfeiture is not warranted,
reduction of the forfeiture amount to $2,400 is
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111,
0.311 and 1.80(f)(4) of the Rules,16 Sutro IS
LIABLE FOR A MONETARY FORFEITURE in the amount of
two thousand four hundred dollars ($2,400) for
failure to register its antenna structure, in
repeated violation of Section 17.4(a) of the
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.17 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. 200232920001 and FRN 0003-2822-39.
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. 20554.18
16. IT IS FURTHER ORDERED that copies of this
Order shall be sent by Certified Mail Return
Receipt Requested and by First Class Mail to
Sutro Broadcasting Corporation., c/o John H.
Runkle, P.O. Box 1826, Boise, Idaho 83701, and to
its counsel, Matthew H. McCormick, Esq., Reddy,
Begley & McCormick, LLP, 2175 K Street, N.W.,
Suite 350, Washington, D.C. 20037-1845.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.4(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232920001 (Enf. Bur., Portland Office, released July 31,
3 A search of the Commission's tower registration data base
indicates that the Payette tower was registered on August 27,
2002, with antenna structure registration number 1235627.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 The Commission's TOWPUB tower data base indicates that the
Payette tower was assigned painting or lighting requirements
before July 1, 1996.
8 As provided by 47 U.S.C. § 312(f)(2), a continuous violation
is ``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
9 Koke, Inc., 23 FCC 2d 191 (1970).
10 We note that ASR applications for existing antenna
structures in Idaho were required to be filed during a 30 day
filing window from February 1 to February 28, 1998. See
Streamlining the Commission's Antenna Structure Clearance
Procedure, 11 FCC Rcd. 4272, 4302 (1995). Therefore, contrary to
Sutro's response, the application was not timely.
11 The FAA issued a new clearance on February 28, 2000.
12 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
13 47 C.F.R. § 17.51(a).
14 47 C.F.R. § 73.49.
15 In prior cases, we have indicated that the length of a
violation could negate any credit for history of overall
compliance. See, TV 45 Productions, Inc., 17 FCC Rcd 11259,
11261 (Enf. Bur. 2002); Commercial Radio Service Corp., 16 FCC
Rcd 3543, 3545 (Enf. Bur., Tech. & Pub. Safety Div. 2001). We
now conclude that this principle should be applied only in
egregious cases. Accordingly, in this case, in the absence of an
egregious violation, we provide a reduction for history of
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 U.S.C. § 504(a).
18 See 47 C.F.R. § 1.1914.