Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Max Media of Montana, LLC, )
900 Laskin Road ) File No. EB-02-ST-234
Virginia Beach, VA 23451 ) NAL/Acct. No. 200232900002
) FRN 0004-9891-33
Antenna Structure Registration )
# 1051225 )
Great Falls, MT
Adopted: October 17, 2003 Released: October 21,
By the Chief, Enforcement Bureau
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand eight
hundred dollars ($8,800.00) to Max Media of Montana, LLC (``Max
Media''), licensee of television Station KTGF, Great Falls,
Montana, for willful and repeated violations of the antenna
structure lighting and registration requirements of Section
303(q) of the Communications Act of 1934, as amended (the
``Act''),1 and Sections 17.21, 17.47(a)(2) and 17.57 of the
Commission's Rules (``Rules'').2
2. On September 27, 2002, the Director of the Commission's
Seattle, Washington District Office (``Seattle Office'') issued
a Notice of Apparent Liability for Forfeiture (``NAL'') to Max
Media for a forfeiture in the amount of thirteen thousand
dollars ($13,000.00).3 Max Media filed its response to the NAL
on November 8, 2002, and supplemented its response on December
9, 2002, and June 3, 2003.
3. Max Media owns an antenna structure, antenna structure
registration (``ASR'') # 1051225, located approximately seven
and a half (7.5) miles north of Great Falls, Montana.4 The ASR
reflects that the antenna structure is 244.0 feet above ground
and that high intensity lighting is required. 5
4. On May 3, 2002, at approximately 5:30 p.m., a Seattle
Office agent inspected the antenna structure and observed that
the top high intensity light was extinguished. The agent
searched the ASR database, discovered that the listed antenna
structure owner was Continental Television Network, Inc. d/b/a/
KTGF (``Continental''), and attempted -- but was unable -- to
5. On both May 4 and 5, 2002, the agent returned to the
antenna structure, observed that the top high intensity light
was still out, and continued efforts to contact Continental.
On May 5, 2002, the agent contacted the Federal Aviation
Administration (``FAA'') Flight Service Station in Great Falls,
Montana, learned that the lighting outage had not been reported
to the FAA, and made a report to the FAA, which, in turn,
issued a Notice to Airman (``NOTAM'').
6. On May 6, 2002, at approximately 1:00 p.m., the agent
returned to the antenna structure and observed that the top
high intensity light was operational. The agent proceeded to
the main studio of Station KTGF, and interviewed its station
manager. The station manager informed the agent that the
antenna structure was owned by Max Media (not Continental),
that the automatic alarm system for that structure was
monitored from Station KTMF-TV (which is owned by Max Media and
located in Missoula, Montana), and that Station KTGF had not
been notified of any lighting outage. Station personnel
provided the agent with a copy of the Application for ASR and
Submission Results for Application, dating from June 1998 and
listing Continental as the antenna structure owner. According
to the Commission's licensing records, an assignment
application, transferring the license for Station KTGF from
Continental to Max Media, was granted on February 5, 2001.6
However, as stated above, the Commission's ASR database still
listed Continental as the antenna structure owner. The
Commission's ASR database was not updated to reflect the change
in ownership until September 9, 2002, approximately four months
after the Seattle Office contacted Max Media.7
7. On September 27, 2002, the Seattle Office issued the
NAL proposing a forfeiture in the amount of thirteen thousand
dollars ($13,000) to Max Media. Specifically, the NAL proposed
a $10,000 forfeiture for Max Media's apparent willful and
repeated violations of Section 17.21 (failure to exhibit the
lighting specified for antenna structure # 1051225, which
exceeds 200 feet above ground) and Section 17.47(a)(2) (failure
to maintain an automatic alarm system designed to detect
lighting failures). Additionally, the NAL proposed a $3,000
forfeiture for Max Media's apparent willful and repeated
violations of Section 17.57 (failure to ``immediately'' notify
the Commission of the change in ownership of antenna structure
8. In its response to the NAL,8 Max Media did not dispute
the findings of the NAL. Additionally, Max Media conceded that
its failure to comply with notification requirements regarding
the change in ownership of the antenna structure ``frustrated''
the ``[e]fforts by the Seattle Agent to contact the tower owner
. . . because the tower was still registered to the previous
owner.''9 Max Media nevertheless sought rescission or
substantial reduction of the forfeiture based upon the fact
that it took corrective actions, that it had an unblemished
record of compliance, and that it provided responsive local
broadcast service. Specifically, Max Media stated that it
updated the Commission's ASR database,10 replaced the
extinguished top high intensity light, completed repairs on the
automatic alarm system,11 and otherwise maintained the antenna
structure. Additionally, Max Media cited to its principals'
history of operating over 40 broadcast stations over the past
25 years without any infractions. Max Media further cited to
its expenditure of approximately one million dollars
($1,000,000) on a master control room and related equipment to
ensure future timely notification of lighting outages, and its
annual expenditures of over several hundred thousands of
dollars to bring the community of Great Falls, Montana
additional local news programming ``at a time when many small
market television stations have canceled local news due to
financial constraints.'' Finally, ``[b]y way of mitigation,''
Max Media explained that the delay in replacing the top high
intensity light was due to a malfunctioning automatic alarm
system, which Continental had warranted to be in compliance
with FCC requirements.12
9. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,13
Section 1.80 of the Rules,14 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). In examining Max Media'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
10. Part 17 of the Rules is designed to promote air
safety, by prescribing regulations for antenna structures that
constitute or that potentially constitute ``a menace to air
navigation.''16 Antenna structures that exceed 200 feet above
ground level (``tall antenna structures'') are deemed to
constitute or potentially constitute such a menace.17 Thus,
Part 17 requires owners of tall antenna structures, who are
subject to FAA notification requirements,18 to comply with
certain Commission painting and lighting,19 inspection,20
registration,21 and reporting requirements.22
11. Specifically, under Section 17.21 of the Rules,
owners of tall antenna structures are required to paint and
illuminate their structures in accordance with standards that
are mandated by the Commission's Rules and are established by
FAA guidelines.23 Here, it is undisputed that Max Media
violated Section 17.21 by failing to maintain the lighting of
antenna structure # 1051225 for three consecutive days. As
stated above, from May 3 through 5, 2002, the agent observed
that the structure's top high intensity light was out, and thus
not in compliance with Section 17.21. Under the circumstances,
we find that Max Media ``willfully'' and ``repeatedly''
violated Section 17.21, by failing to maintain a fully
illuminated antenna structure.24 However, on May 6, 2002,
prior to the agent's contacts with Max Media, the agent
observed that the structure's top high intensity light had been
restored. Because Max Media took corrective action and
restored the structure's lighting prior to Commission
notification or action we conclude that a reduction of the
$10,000 forfeiture by $2,000 (to $8,000) is warranted. 25
12. Under Section 17.47(a)(2) of the Rules, owners of
tall antenna structures are required to ``provide and properly
maintain an automatic alarm system designed to detect any
failure of such lights and to provide indication of such
failure to the owner.''26 It is undisputed that Max Media
violated Section 17.47(a)(2), by failing to maintain a
functional automatic alarm system, which would indicate and
provide notification of a lighting failure. Although Max
Media took remedial action and repaired the system, its actions
followed the Commission's inspection and notification of the
violation. Under the circumstances, we find that Max Media
willfully and repeatedly violated Section 17.47(a)(2). Because
Max Media instituted repairs after -- not before -- the
Commission's inspection and notification, we do not find that
Max Media's remedial action is a mitigating factor that would
warrant further reduction of the forfeiture.27 We also do not
find that Max Media's alleged expenditure of approximately
$1,000,000 to install a new master control room and employ
related equipment mitigates its prior failings.28 Finally, we
find that, Max Media's reliance upon alleged contractual
warranties in a Commission enforcement action to be misplaced;
such matters more appropriately should be raised and resolved
in a local forum.29
13. Under Section 17.57 of the Rules, owners of tall
antenna structures, who are subject to the antenna registration
requirements,30 must ``immediately notify the Commission using
FCC Form 854 upon any change in structure height or change in
ownership information.''31 The imposition of an immediate
notification requirement ensures that the Commission's ASR
database is up-to-date and accurately reflects the current
antenna structure owner, thereby enabling ``the FAA and the
Commission [to] rapidly . . . identify a single responsible
entity during lighting outages.''32 It is undisputed that at
the time of inspection, the Commission's ASR identified
Continental as the owner of antenna structure # 1051225. Max
Media did not file its change of ownership information, and
consequently the Commission's ASR was not updated, until
September 9, 2002 -- approximately 17 months after Max Media
became the licensee of Station KTGF and assumed ownership of
antenna structure # 1051225,33 and approximately four months
after the Seattle office notified Max Media of its failure to
submit the updated ownership information. Under the
circumstances, we find that Max Media willfully and repeatedly
violated Section 17.57. We find further that Max Media's
dilatory corrective action does not mitigate its failure to
comply with the ``immediate'' reporting requirements of Section
17.57, and thus does not warrant cancellation or reduction of
the $3,000 forfeiture.
14. Finally, Max Media asserted, and a search of
agency decisions confirmed, that Max Media and its principals
have an unblemished history of serving its broadcast
communities in compliance with the Commission's regulations.
After considering Max Media's past history, we conclude that a
reduction of the remaining forfeiture amount ($11,000 as
reduced) to $8,800 is appropriate.34
15. 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,35 Max Media of Montana, LLC IS LIABLE
FOR A MONETARY FORFEITURE in the amount of eight thousand eight
hundred dollars ($8,800.00) for failure to maintain its antenna
structure lighting, for failure to maintain a functional
automatic alarm system, and for failure to immediately notify
the Commission of the change in ownership of antenna structure
# 1051225, in willful and repeated violations of Sections
17.21, 17.47(a)(2) and 17.57 of the Rules.
16. 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.36 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. 20023900002 and FRN
0004-9891-33. 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. 20554.37
17. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Arthur V. Belendiuk, Esq., counsel for Max Media,
at Smithwick & Belendiuk, 5028 Wisconsin Avenue, N.W., Suite
301, Washington, D.C. 20016.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 U.S.C. § 303(q). Section 303(q) authorizes the Commission
to require that owners of antenna towers, which constitute or
potentially constitute ``a menace to air navigation . . .
maintain the painting and/or illumination of the tower as
prescribed by the Commission pursuant to this Section.''
2 47 C.F.R. §§ 17.21, 17.47(a)(2), 17.57.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232900002 (Enf. Bur., Seattle, Washington District Office,
September 27, 2002).
4 It should also be noted that the antenna structure is located
within eight (8) miles from the Great Falls Airport and within
eleven (11) miles from the Malmstrom Air Force Base.
5 The Rules mandate the registration of all antenna structures
that are over 200 feet above ground and/or are in close proximity
to airports, for which notice to the Federal Aviation
Administration is required. See 47 C.F.R. § 17.4, see also 47
C.F.R. § 17.7.
6 It should be noted that on March 27, 2001, the Commission staff
granted the pro forma assignment application, transferring
Station KTGF from Max Media to MMM Licenses, LLC. See File No.
BALCT-20010227AAS. MMM Licenses, LLC is a wholly owned
subsidiary of Max Media, which, in turn, is a wholly owned
subsidiary of the Max Broadcast Group. Id. at Exhibit 3.
7 As a follow-up to the agent's on-site inspection, the agent
contacted a Max Media officer on May 6 and 26, 2002. During the
May 6 telephone conversation, the agent referred to the
Commission's requirement that the agency be notified of changes
in ownership of antenna structures. During the May 26 telephone
conversation, the Max Media officer represented to the agent that
the Commission notification of change of ownership of antenna
structure # 1051225 had been filed, and that an independent
contractor had been retained to repair the structure's lighting
and alarm monitoring system.
8 Max Media's Response to Notice of Apparent Liability (November
8, 2002) (``November 8 Response'').
9 Id. at 1-2.
10 Max Media also represented that it posted a sign outside the
antenna structure, which identifies Max Media as the antenna
structure owner and lists emergency contacts. See November 8
Response at 2.
11 See Letter from Arthur V. Belendiuk, Esq. to Marlene H.
Dortch, Secretary, Federal Communications Commission (June 3,
2003) (providing a declaration of an independent contractor that
the automatic alarm system had been repaired and was fully
operational). Max Media had previously represented that it would
visually inspect the structure's lighting, while the system was
being repaired. See November 8 Response at 3.
12 Max Media stated that it learned after it became the licensee
of Station KTGF and owner of antenna structure # 1051225, on
March 1, 2001, that Continental's representations in the sales
contract regarding the tower and related equipment ``proved not
to be true.'' November 8 Response at 3. By way of example, Max
Media referred to ``a major failure of the transmission line at
KTGF-TV, which was attributable to deferred maintenance on the
tower'' and which occurred in August 2001. Id.
13 47 U.S.C. § 503(b).
14 47 C.F.R. § 1.80.
15 47 U.S.C. § 503(b)(2)(D).
16 47 C.F.R. § 17.1(a).
17 See 47 C.F.R. §§ 17.7(a), 17.21(a).
18 See 47 C.F.R. § 17.7(a).
19 See 47 C.F.R. § 17.21(a).
20 See 47 C.F.R. § 17.47.
21 See 47 C.F.R. § 17.4.
22 See 47 C.F.R. §17.57.
23 See 47 C.F.R. §§ 17.22-23.
24 For purposes of Section 503(b) of the Act, the term
``willful'' means that the violator knew that it was taking the
action in question, irrespective of any intent to violate the
Commission's Rules, and ``repeatedly'' means more than once. See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
25 See, e.g., East Tennessee Radio Group, L.P., DA 03-868, 2003
WL 1526638, ¶ 7 (Enf. Bur. March 26, 2003) (finding that an
antenna structure owner's corrective actions to replace the ASR
posting took place prior to receiving Commission notification of
violation, and as such was a mitigating factor).
26 Id. As an alternative to the provision of a properly
maintained automatic alarm system, Section 17.47(a)(1) requires
that antenna structure owners visually inspect the lighting at
least once every 24 hours ``to insure that all such lights are
functioning properly.'' 47 C.F.R. § 17.47(a)(1).
27 See, e.g., South Central Communications Corp., 18 FCC Rcd 700,
702-03 ¶ 9 (Enf. Bur. 2003) (finding that an antenna structure
owner's remedial action in repairing lighting outages took place
after receiving Commission notification of a violation, and as
such was not a mitigating factor).
28 Max Media neither substantiated its claim of $1,000,000.00 in
expenditures, nor claimed an inability to pay the forfeiture as a
result of such alleged expenditures.
29 In this connection, Max Media acknowledged that it was on
notice that warranties regarding its facility and related
equipment proved untrue, ten months before the May 2002
inspections. See n. 12, supra.
30 See 47 C.F.R. § 17.4.
31 47 C.F.R. § 17.57 (emphasis added).
32 Streamlining the Commission's Antenna Structure Clearance
Procedure and Revision of Part 17 of the Commission's Rules
Concerning Construction, Marking, and Lighting Requirements,
Order, 11 FCC Rcd 4272, 4278 ¶12 (1995).
33 See n. 12, supra.
34 See South Central Communications Corp., 18 FCC Rcd 700, 701,
703 ¶¶ 6, 9 (Enf. Bur. 2003) (finding that a licensee's history
of compliance with Commission regulations, spanning 50 years
operating over 30 broadcast stations, warranted a reduction of
the proposed forfeiture).
35 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
36 47 U.S.C. § 504(a).
37 See 47 C.F.R. § 1.1914.