Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

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.

*****************************************************************



                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554

In the Matter of                  )
                                 )
Clear    Channel    Broadcasting  )   File No. EB-02-BF-190
Licenses, Inc.                    )   NAL/Acct. No. 200332280003
Owner  of  Antenna  Structure  #  )   FRN: 0001 6758 18
1002978
Utica, New York

                      FORFEITURE ORDER 

Adopted:  April 30, 2004                Released:   May   4, 
2004

By the Chief, Enforcement Bureau: 

                      I.   INTRODUCTION

     1.   In this  Forfeiture Order (``Order''), we  issue a 
monetary forfeiture  in the  amount of ten  thousand dollars 
($10,000)  to  Clear  Channel  Broadcasting  Licenses,  Inc. 
(``Clear Channel''), licensee of  Station WOUR(FM) and owner 
of  antenna  structure  # 1002978  (``antenna  structure''), 
Utica, New York,  for willful and repeated  violation of the 
antenna structure painting requirements of Section 303(q) of 
the Communications  Act of 1934, as  amended (the ``Act''),1 
and Section 17.50 of the Commission's Rules (``Rules'').2

                       II.  BACKGROUND

     2.   On July  16, 2002,  the Commission's  Buffalo, New 
York Office  (``Buffalo Office'') inspected  Clear Channel's 
antenna  structure,   and  observed  that   the  structure's 
visibility was impaired because its painting was chipped and 
faded.  As  a result of  the inspection, the  Buffalo Office 
released a Notice of Violation (``NOV'') to Clear Channel on 
July  29, 2002,  and a  corrected  NOV to  Clear Channel  on 
August  12,  2002.3    On  August 23,  2002,  Clear  Channel 
responded  to the  NOVs, by  stating that  it contracted  to 
repaint the antenna structure on August 31, 2002.4 

     3.   On November 7, 2002, the Buffalo Office released a 
Notice of Apparent Liability for Forfeiture (``NAL'').5  The 
NAL  found  that  Clear  Channel  willfully  and  repeatedly 
violated Section 17.50  of the Rules and  proposed a $10,000 
forfeiture.

     4.   Clear Channel responded to  the NAL on December 9, 
2002.6  In its response, Clear  Channel does not dispute the 
NAL  findings.   Nevertheless,   as  detailed  below,  Clear 
Channel seeks  cancellation or reduction of  the forfeiture, 
based on the fact that the Buffalo Office allegedly erred in 
inspecting  the antenna  structure, and  that Clear  Channel 
instituted prompt remedial action.  

                   III.        DISCUSSION

     5.   The proposed  forfeiture amount  in this  case was 
assessed  in accordance  with  Section 503(b)  of the  Act,7 
Section 1.80 of the  Rules,8 and the Commission's Forfeiture 
Policy Statement and Amendment of  Section 1.80 of the Rules 
to  Incorporate  the  Forfeiture Guidelines.9  In  examining 
Clear Channel's response, Section 503(b) of the Act requires 
us to  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  such other matters as justice 
may require.10  

     6.   Clear  Channel  claimed  that the  Buffalo  Office 
agent's ``routine,'' ``drive-by''  inspection of the antenna 
structure  ``should  not  have   taken  place,''  given  the 
Agreement   between   the   New  York   State   Broadcasters 
Association  (``NYSBA'') and  the Commission11  entered into 
pursuant  to the  agency's Alternative  Broadcast Inspection 
Program (``ABIP''). Specifically, Clear Channel claimed that 
under  the  Agreement, the  Commission  agreed  to abort  an 
inspection if  demonstrated that  the station  had requested 
and paid  for an alternative NYSBA  inspection.  In support, 
Clear Channel provided a  copy of the Alternative Inspection 
Agreement,12  and a copy of  its request for the alternative 
NYSBA   inspection  that   preceded  the   Buffalo  Office's 
inspection.13  

     7.   The Commission's  ABIP, established in 1996,  is a 
voluntary program designed to facilitate licensee compliance 
with the  requirements of the  Act and the Rules  and reduce 
administrative burdens. Under the ABIP, an entity, typically 
a state  broadcast association, conducts an  inspection of a 
licensee's  station  at  the licensee's  request.14  If  the 
station  passes the  voluntary inspection,  the Commission's 
appropriate Field  Office receives a notification,  and does 
not  subject  the  station  to  routine  inspections  for  a 
specified period. 

     8.   Clear   Channel's   claims  notwithstanding,   the 
Buffalo Office's 2002 inspection of Station WOUR(FM) was not 
precluded under the Commission's ABIP.  The Buffalo Office's 
inspection was part of  its field-wide targeted tower safety 
program,  and  as such,  was  not  routine under  the  ABIP.  
According to the explicit terms of the Agreement between the 
Commission and the NYSBA, a station is not exempt from Field 
Office inspections based on the agency's targeted compliance 
program,  during  the  three   year  period  following  such 
station's  passing of  the alternative  inspection.15  Thus, 
consistent with the outlines of the Commission's ABIP,16 the 
provisions of the Commission's Agreement with NYSBA, as well 
as  recent Bureau  precedent,17 we  do not  find that  Clear 
Channel's  ABIP  claim  presents a  mitigating  factor  that 
warrants   cancellation  or   reduction   of  the   assessed 
forfeiture.18

     9. Clear  Channel also claimed  that after  it received 
the NAL, it repainted the antenna structure. With respect to 
Clear Channel's  remedial effort,  it is  a long-established 
Commission  policy that  such  an  effort implemented  after 
Commission  notice  of  or  action  on  a  violation,  while 
commendable,  does not  lessen,  mitigate or  excuse a  past 
violation and thus  does not present a  factor that warrants 
cancellation or reduction of the assessed forfeiture.19   

                   IV.   ORDERING CLAUSES

     10.  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,20  Clear  Channel  Broadcasting 
Licenses, Inc.  IS LIABLE FOR  A MONETARY FORFEITURE  in the 
amount of ten thousand dollars  ($10,000) for its failure to 
comply with the antenna  structure painting requirements, in 
willful  and  repeated violation  of  Section  73.50 of  the 
Rules. 

     11.  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.21  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. 
200332280003  and  FRN  0001  6758 18.   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. 20554.22  

     12.  IT IS  FURTHER ORDERED that  a copy of  this Order 
shall  be sent  by  First Class  and  Certified Mail  Return 
Receipt  Requested to  Christopher L.  Robbins, Esq.,  Wiley 
Rein & Fielding  LLP, 1776 K Street,  N.W., Washington, D.C. 
20006. 

                              FEDERAL         COMMUNICATIONS 
COMMISSION
                         
                              David H. Solomon
                              Chief, Enforcement Bureau


_________________________

1 47 U.S.C.  303(q).

2 47 C.F.R.  17.50.

3  Official  Notice  of  Violation from  Gene  J.  Stanbro, 
Resident  Agent,  Federal  Communications  Commission,   to 
Clear  Channel Broadcasting  (August 12,  2002) (correcting 
the  antenna  structure's registration  number);   Official 
Notice of Violation from Gene J. Stanbro, Resident Agent to 
Clear Channel Broadcasting (July 29, 2002) (notifying Clear 
Channel  that its  antenna  structure did  not comply  with 
Section  17.50,  which requires  that  it  ``be cleaned  or 
repainted as  often as  necessary to maintain  good visible 
[sic]''). 

4 See Letter from Christopher  L. Robbins, Esq., Wiley Rein 
& Fielding  LLP, to  Gene Stanbro, Resident  Agent, Federal 
Communications Commission (August 23, 2002).

5 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332280003 (Enf. Bur. Buffalo Office, November 7, 2002).
6 See Letter from Christopher  L. Robbins, Esq., Wiley Rein 
& Fielding  LLP, to  Marlene H. Dortch,  Secretary, Federal 
Communications     Commission     (December    9,     2002) 
(``Response'').

7 47 U.S.C.  503(b).

8 47 C.F.R.  1.80.

9 12  FCC Rcd 17087 (1997),  recon. denied, 15 FCC  Rcd 303 
(1999).  

10 47 U.S.C.  503(b)(2)(D).

11 Response at 1-2.

12  See  Attachment  to Response  (``Alternative  Broadcast 
Inspection Program,  A Cooperative Program of  the New York 
State  Broadcasters Association  and  the FCC,''  effective 
November 15, 1996).

13 See Attachment to Response (``Request for Performance of 
NYSBA  Inspection,''  submitted  by ``WOUR  Clear  Channel, 
Utica, New York, dated April 1, 2002).  

14 The applicable Alternative Inspection Agreement provides 
that  the   Buffalo  Office   shall  terminate   a  routine 
inspection ``upon a showing by  the Station that either (i) 
an  NYSBA  ``Alternative   Inspection  Program''  has  been 
requested,  or  (ii)   an  NYSBA  ``Alternative  Inspection 
Program'' has  been conducted  within the last  ninety (90) 
days  and the  Station is  attempting to  correct any  non-
compliance [emphasis  added].''  See  note 12, supra  .  In 
the instant  case, Clear Channel demonstrated  that it made 
the request for an alternative inspection on April 1, 2002, 
prior to  the Buffalo  Office's July 16,  2002, inspection.  
See  note   13,  supra.   However,  as   discussed  herein, 
irrespective  of  Clear   Channel's  request,  because  the 
Buffalo  Office's inspection  was not  routine, it  was not 
precluded  by  the  above   provision  of  the  Alternative 
Inspection Agreement.  

15 See note 11 and accompanying text, supra.

16 See notes 13-14 and accompanying text, supra.

17 See  e.g., State  Broadcasting Corp., DA  04-692 at   7 
(Enf. Bur.  March 16, 2004)  (finding that the  station had 
requested but  had not  been certified under  the voluntary 
inspection program, and  that even if the  station had been 
certified, it  would not  have been  exempt from  the Field 
Office's   targeted   tower   safety   compliance   program 
inspection);  Cumulus Licensing  Corp., 18  FCC Rcd  21234,  
21236  10 (Enf. Bur.  2003) (finding that a certificate of 
compliance under  the voluntary inspection program  did not 
shelter a   station from the Field  Office's targeted tower 
safety compliance  program inspection   and the  finding of 
apparent liability).  

18 We note that recently updated ABIP Agreements, including 
the  one with  the  NYSBA, similarly  exclude tower  safety 
inspections.

19 See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 
  14 (2002); KGVL,  Inc., 42  FCC 2d  258, 259  (1973); Max 
Media of  Montana, LLC, DA  03-3276  11 (Enf.  Bur. October 
21, 2003); East  Tennessee Radio Group, L.P., DA  03-868  7 
(Enf. Bur. March 26, 2003).

20 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

21 47 U.S.C.  504(a).

22 See 47 C.F.R.  1.1914.