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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
B&H Broadcasting Systems, Inc. ) File No. EB-02-DL-290
Texarkana, Arkansas ) NAL/Acct. No. 200332500001
) FRN 0001-7226-77
Adopted: April 26, 2004 Released: April 29,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand dollars
($3,000) to B&H Broadcasting Systems, Inc. (``B&H''), licensee
of radio station KZRB(FM), located in Texarkana, Arkansas, and
owner of the station's antenna structure (registration number
1236577) for willful and repeated violation of Section 17.4(a) of
the Commission's Rules (``Rules'').1 The noted violation
involves B&H's failure to register its antenna structure for the
2.On October 7, 2002, the District Director of the
Commission's Dallas, Texas Office (``Dallas Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to B&H in
the amount of three thousand dollars ($3,000).2 B&H filed a
response on October 17, 2002.
2. On June 10, 2002, after receiving a report of an
unregistered antenna structure near Dekalb, Texas, belonging to
radio station KZRB(FM), a Commission agent from the Dallas Office
checked the Commission's Antenna Structure Registration (``ASR'')
database and determined that there were no registered antenna
structures within a two mile radius of the licensed geographical
coordinates for station KZRB(FM) (33° 24' 54'' N / 094° 38' 10''
W). The agent then located Federal Aviation Administration
(``FAA'') study 95-ASW-1807-OE for a 499 foot antenna structure
located at geographical coordinates 33° 24' 54.4'' N / 094° 38'
10.7'' W. The FAA study was conducted on behalf of B&H.
3. Also on June 10, 2002, the agent contacted Mr. Ray
Bursey, president of B&H. Mr. Bursey stated that the antenna
structure had been registered when B&H upgraded station KZRB(FM)
and constructed the tower. The Commission's database showed that
B&H applied for a license to cover the construction of KZRB(FM)
at its present licensed location on December 16, 1996.3 However,
Mr. Bursey was unable to produce any documentation to support his
contention that the antenna structure had been registered.
4. On September 12, 2002, the agent again checked the
Commission's ASR database. Still, there was no registered
antenna structure within a two mile radius of the licensed
geographical coordinates for station KZRB(FM), nor any antenna
structure registered to B&H. Not until September 24, 2002, more
than three months after the Dallas Office first notified B&H that
its antenna structure was not registered, did the ASR database
reflect that an antenna structure registration application had
been filed for the KZRB(FM) tower.4 On October 7, 2002, the
District Director of the Dallas Office issued a NAL to B&H for
its willful and repeated failure to register the antenna
structure. On October 17, 2002, B&H responded to the NAL. In
its response, B&H contends that it had timely completed and
submitted the tower registration paperwork to the Commission.
5. The proposed 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 Rules,6
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.7 In examining B&H'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.8
6. Section 17.4(a) of the Rules requires that the owner of
any proposed antenna structure that requires notice of proposed
construction to the FAA must register the structure with the
Commission prior to construction. B&H is the owner of the 499
foot antenna structure for KZRB(FM). This structure required
notice to the FAA, and thus Commission registration, because the
structure exceeded 200 feet (60.96 meters) in height above
ground.9 From at least June 10, 2002, when the FCC agent advised
B&H that its antenna structure was not registered to November 6,
2002, when B&H successfully registered its antenna structure, we
find that B&H willfully10 and repeatedly11 failed to register its
antenna structure for KZRB(FM) in violation of Section 17.4(a) of
the Rules. Although B&H claims that it timely sent the required
tower registration paperwork to the Commission, we have no
evidence of any attempts by B&H to register the tower until three
months after B&H was notified of the violation by the Dallas
office, nor has B&H provided any such evidence.12
IV. ORDERING CLAUSES
8. 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,13 B&H Broadcasting Systems, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of three thousand dollars
($3,000) for its willful and repeated failure to register its
antenna structure registration number 1236577 in violation of
Section 17.4(a) of the Rules.
9.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.14
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.
200332500001 and FRN 0001-7226-77. 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.
7. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to B&H Broadcasting Systems, Inc. Inc., 3720 County
Avenue, Texarkana, Arkansas 71854.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.4(a).
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332500001 (Enf. Bur. Dallas Office, October 7, 2002).
3 File No. BLH-19961216KA.
4 After three applications, the antenna structure was
successfully registered on November 6, 2002 and assigned ASR
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
8 47 U.S.C. § 503(b)(2)(D).
9 47 C.F.R. § 17.7.
10 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',
when used with reference to the commission or omission of any
act, 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 4387-88 (1991).
11 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
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn 56 (2003).
12 B&H raises several other arguments that appear to have nothing
to do with the issue of whether its tower has been registered, so
we do not address them.
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.