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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
Utica, New York
Adopted: April 30, 2004 Released: May 4,
By the Chief, Enforcement Bureau:
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
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
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.
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
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
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
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
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
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.
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
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)
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
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
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
18 We note that recently updated ABIP Agreements, including
the one with the NYSBA, similarly exclude tower safety
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.