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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
East Tennessee Radio Group, L.P. ) File Number EB-02-
Owner of Antenna Structure Registration No. ) NAL/Acct. No.
1063413 in Sevierville, Tennessee )
) FRN 0005-0880-67
Dalton, Georgia )
Adopted: March 24, 2003 Released: March 26,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand four hundred
dollars ($2,400) to East Tennessee Radio Group L.P. (``East
Tennessee''), owner of an antenna structure with Antenna
Structure Registration (``ASR'') number 1063413 in Sevierville,
Tennessee, for willfully violating Section 17.57 of the
Commission's Rules (``Rules'').1 The noted violation involves
East Tennessee's failure to notify the Commission immediately of
a change in ownership of the antenna structure.
2. On June 27, 2002, the FCC Enforcement Bureau's Atlanta,
Georgia Field Office (``Atlanta Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') in the amount of five
thousand dollars ($5,000) to East Tennessee.2 East Tennessee
filed a response on August 16, 2002.
3. On May 15, 2002, an agent from the Atlanta Office
inspected the antenna structure of WSEV(AM) in Sevierville,
Tennessee.3 The agent was unable to locate an ASR number posted
on or near the tower, its fence, building, gate, or anywhere on
4. On May 15, 2002, the agent inspected WSEV(AM) at its
studio in Sevierville, Tennessee. After advising East Tennessee
of its failure to post the ASR number, the agent conducted an
interview with the station's chief engineer, who stated that the
ASR posting had recently been vandalized and had not yet been
reposted. FCC records indicated that the owner of the antenna
structure was Dollywood Broadcasting; however, East Tennessee
advised the agent that it was the owner of the antenna structure
and that Dollywood Broadcasting was the previous owner.
5. On June 27, 2002 the Atlanta Office issued an NAL for a
$5,000 forfeiture to East Tennessee for failure to post its ASR
number on or near the base of its antenna structure in willful
violation of Section 17.4(g) of the Rules4 and failure to notify
the Commission immediately of a change in ownership of the
antenna structure in willful violation of Section 17.57 of the
Rules. In its response to the NAL, East Tennessee argues that
the $2,000 forfeiture proposed for the Section 17.4(g) violation
should be set aside because it took action to replace the missing
ASR sign prior to the inspection of the antenna structure by the
FCC agent. East Tennessee asserts that it has suffered recurring
vandalism at its transmitter site and has replaced its ASR sign
three times during the past eight months. East Tennessee
provides a sworn declaration from its contract engineer, who
states that he noticed the sign was missing about a week prior to
the FCC inspection, promptly ordered a replacement sign, and was
preparing to post the new sign when the FCC agent discovered the
violation. The engineer further states that he posted the new
sign immediately following the inspection. East Tennessee also
seeks cancellation of the $3,000 forfeiture proposed for failure
to notify the Commission of the change in ownership of the
antenna structure. East Tennessee states that it consummated the
assignment of license for WSEV(AM) from Dollywood Broadcasting on
May 10, 2000, and notified the FCC the next day that the
assignment had been consummated. East Tennessee asserts that it
believed in good faith that this notification adequately alerted
the FCC to the change in ownership of the antenna structure. In
addition, East Tennessee asserts that when informed of the
Commission's outdated records of the antenna structure's
ownership, it promptly took steps to remedy the violation.
Finally, East Tennessee submits that its overall history of
compliance with the Commission's rules warrants reduction of the
6. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended (``Act''),5 Section 1.80 of the Commission's Rules,6
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 East Tennessee'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.7
7. Section 17.4(g) of the Rules requires that the ASR
number be displayed in a conspicuous place so that it is readily
visible near the base of the antenna structure. On the date of
the inspection, East Tennessee did not have its ASR number
posted. However, East Tennessee provides a sworn declaration
from its contract engineer, who states that he noticed the sign
was missing about a week prior to the FCC inspection, promptly
ordered a replacement sign, and was preparing to post the new
sign when the FCC agent discovered the violation. Although the
Commission has repeatedly stated that remedial actions taken to
correct a violation are not mitigating factors warranting
reduction of a forfeiture,8 the record reflects that East
Tennessee promptly took action to replace the missing sign prior
to the FCC inspection. Thus, its corrective action stemmed from
its own voluntary and timely efforts, not just a hasty attempt to
comply due to the FCC inspection.9 Under these circumstances, we
conclude that cancellation of the $2,000 forfeiture for this
violation is warranted.
8. Section 17.57 of the Rules requires an antenna
structure owner to notify the Commission immediately of any
change in ownership information for an antenna structure using
FCC Form 854. At the time of the inspection, Commission records
reflected that Dollywood Broadcasting was the owner of East
Tennessee's Sevierville, Tennessee antenna structure. East
Tennessee argues that the forfeiture for violating Section 17.57
should be set aside because it believed in good faith that its
filing of a notification of consummation of the assignment of
license for WSEV(AM) was adequate to notify the Commission of the
change in ownership of the antenna structure. We disagree.
Section 17.57 clearly requires that owners notify the Commission
of a change in ownership of an antenna structure using FCC Form
854. Licensees are expected to know and comply with the
Commission's rules.10 East Tennessee provides no evidence that
it took steps to ensure that it was in compliance with the
requirements of Section 17.57. Furthermore, while East Tennessee
asserts that it promptly took steps to remedy the violation after
the FCC inspection, as noted above, remedial actions taken to
correct a violation are not mitigating factors justifying
reduction of a forfeiture. Accordingly, we conclude that East
Tennessee willfully11 violated Section 17.57 of the Rules and
that cancellation of the $3,000 forfeiture for this violation is
not warranted. However, after considering East Tennessee's past
history of compliance, we reduce the forfeiture amount from
$3,000 to $2,400.
IV. ORDERING CLAUSES
9. 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,12 East Tennessee IS LIABLE FOR A MONETARY FORFEITURE
in the amount of $2,400 for willfully violating Section 17.57 of
10. 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 note
NAL/Acct. No. 200232480010 and FRN 0005-0880-67. 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. 20554.14
11. IT IS FURTHER ORDERED that copies of this Order shall
be sent by first class mail and certified mail return receipt
requested to East Tennessee Radio Group, L.P., P.O. Box 1284
Dalton, GA 37862, and to its counsel, Brian M. Madden, Esq.,
Leventhal, Senter, & Lerman, P.L.L.C., Suite 600, 2000 K Street
N.W., Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.57.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct.No.
200232480010 (Enf. Bur., Atlanta Office, rel. June 27, 2002).
3 East Tennessee is the licensee of radio station WSEV(AM) as
well as owner of the antenna structure.
4 47 C.F.R. § 17.4(g).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
9 See Motorola, Inc., 12 FCC Rcd 15268 (1997).
10 Sitka Broadcasting Company, Inc., 70 FCC 2d 2375, 2378
(1979), citing Lowndes County Broadcasting Company, 23 FCC 2d 91
(1970) and Emporium Broadcasting Company, 23 FCC 2d 868 (1970).
11 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 ....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
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.