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                           Before the
                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

                        FORFEITURE ORDER

   Adopted:  October 17, 2003           Released:  October 21, 
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  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.

                          II.  BACKGROUND

      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 
 contact Continental.  

      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 
 # 1051225).  

      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  

                         III.   DISCUSSION

      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 
 require.15

      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.