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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Wings Communications, Inc. d/b/a WELE Radio ) File No. EB-02-
Owner of Antenna Structure Registration ) NAL/Acct. No.
Number 1062835 )
Ormond Beach, Florida ) FRN 0004-3312-60
Adopted: May 17, 2004 Released: May 19, 2004
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 Wings Communications, Inc. (``Wings'') d/b/a WELE
Radio. for willful violation of Section 17.51(a) of the
Commission's Rules (``Rules'').1 The violation involves Wings'
failure to continuously exhibit all red obstruction lighting on
its tower from sunset to sunrise.
2. On December 2, 2002, the Commission's Tampa, Florida
Field Office (``Tampa Office'') issued a Notice of Apparent
Liability (``NAL'') to Wings for a forfeiture in the amount of
ten thousand dollars ($10,000) citing violation of Section
17.51(a) of the Commission's Rules.2 Wings filed its response to
the NAL requesting cancellation of the forfeiture on January 2,
3. On October 1, 2002, during an evening inspection of
Wings' AM four tower directional antenna array, located in Ormond
Beach, Florida, two Commission agents from the Tampa Office
observed that one of the antenna structures3 was not lighted by a
red beacon during prescribed evening hours. The inspection
occurred as the result of a complaint to the Tampa Office
alleging a six week outage of the required red beacons for Wings'
4. On October 1, 2002, as a result of the first
inspection, a Tampa agent called the FAA and determined that no
Notice To Airmen (NOTAM) had been given the FAA regarding the
lighting failure.5 Subsequently, on October 8, 2002, the same
agent searched the Commission's Antenna Structure Registration
(``ASR'') database and determined Wings was listed as the owner
of the antenna structure.6
5. On December 2, 2002, the Tampa Office issued a NAL to
Wings for the violation observed on October 1, 2002. In its
January 2, 2003 response, Wings did not dispute the facts set
forth in the NAL and admitted that it knew the light was out and
that it failed to notify the FAA of the outage.7 Wings' response
included a recitation of its unsuccessful repair efforts as
justification for its request for forfeiture cancellation.
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),8 Section 1.80 of the Rules,9
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) (``Policy Statement''). In examining Wings' 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
such other matters as justice may require.10
7. Section 17.51(a) of the Rules requires that all
red obstruction lighting be exhibited continuously unless
otherwise specified. Wings seeks cancellation of the forfeiture
based upon its assertion that the problem was intermittent and
that it made multiple attempts to resolve the problem. We
disagree that this justifies cancellation. Wings knew of the
lighting problem for months and it was incumbent upon it to
correct the problem, which posed a safety hazard. That Wings was
unable to secure either an electrical or tower company to fix the
lighting does not mitigate its violation of Section 17.51(a) of
the Rules. The responsibility to comply with the Rules is the
antenna structure owner's,11 and an unsuccessful attempt to
comply is insufficient. Wings also seeks to attribute its
failure to notify the FAA to an employee. However, the
Commission has long held that licensees and Commission regulatees
are responsible for the acts and omissions of their employees and
independent contractors.12 Moreover, Wings could have complied
with the Commission's Rules simply by informing the FAA of the
light failure.13 We find that Wings has not provided any basis
for cancellation or reduction of the forfeiture.
8. On the basis of the FCC agents' observations on October
1, 2002, during their investigations, and the admission in Wings'
response, we find that Wings willfully14 violated Section
17.51(a) of the Rules by failing to exhibit the required red
beacon evening obstruction lighting on its tower.15
9. We have examined Wings' response to the NAL
pursuant to the statutory factors above, and in conjunction with
the Policy Statement as well. As a result of our review, we
conclude that Wings willfully violated Section 17.51(a) of the
Rules. Moreover, we are not persuaded by Wings' mitigation
claims. Accordingly, we find that there is no basis to cancel or
reduce the assessed forfeiture amount.
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,16 Wings IS LIABLE FOR A MONETARY
FORFEITURE in the amount of a total of ten thousand dollars
($10,000), for failure to light the captioned antenna structure,
in willful violation of Section 17.51(a) 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.17 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. 200332700010 and FRN 0004-3312-60.
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. 20554.18
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Doug Wilhite, President, Wings Communications, Inc.,
d/b/a WELE Radio, 432 South Nova Road, Ormond Beach, Florida
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 17.51(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332700010 (Enf. Bur., Tampa Office, released December 2,
3 Antenna Structure Registration number 1062835, located at
29º 16' 0.9'' North Latitude, 081º 04' 53'' West Longitude.
4 The four antenna structures that comprise the directional AM
array are required to be individually lighted.
5 47 C.F.R. § 17.48(a) requires the tower owner to immediately
inform the FAA of any light failure not repaired within 30
minutes. In its January 2, 2003 response, Wings admits that it
had not notified the FAA as of October 1, 2002.
6 The Commission's Antenna Structure Registration database
lists Wings Communications, Inc. dba WELE Radio as the owner of
the instant antenna structure, registration number 1062835,
located at Ormand Beach, Florida. The ASR also set forth a
requirement to maintain a night time red beacon lighting system.
7 Wings' January 2, 2003 response acknowledges its awareness
of the light's failure and seeks to attribute its failure to
notify the FAA to an employee.
8 47 U.S.C. § 503(b).
9 47 C.F.R. § 1.80.
10 47 U.S.C. § 503(b)(2)(D).
11 See Econopage of Cleveland, Inc. 16 FCC Rcd 2989 (Enf.
Bur. 2001) (Licensees are ``expected to know and comply with the
Commission's Rules, and will not be excused for violations
thereof, absent clear mitigating circumstances.'') See also
Sitka Broadcasting Co., Inc., 70 FCC 2d 2375, 2378 (1979), citing
Lowndes County Broadcasting Co., 23 FCC 2d 91 (1970) and Emporium
Broadcasting Co., 23 FCC 2d 868 (1970).
12 See Eure Family Ltd. Partnership, 16 FCC Rcd 21302 (Enf.
Bur. 2001), recon. denied, 17 FCC Rcd 7402 (Enf. Bur. 2002),
review denied, 17 FCC Rcd 21861 (2002).
13 47 C.F.R. § 17.48(a).
14 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 or any rule or regulation of the Commission
authorized by this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
15 Wings informed the Commission on March 18, 2003, that the
tower had been repaired and the lights were working.
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 U.S.C. § 504(a).
18 See 47 C.F.R. § 1.1914.