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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
East Tennessee Radio Group, ) File Number EB-02-AT-231
) NAL/Acct. No. 200232480010
Owner of Antenna Structure )
Registration No. 1063413 in ) FRN 0005-0880-67
Sevierville, Tennessee )
MEMORANDUM OPINION AND ORDER
Adopted: July 19, 2004
Released: July 22, 2004
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny an April 24, 2003 petition for reconsideration
(``petition'') filed by East Tennessee Radio Group, L.P. (``East
Tennessee''), owner of an antenna structure with Antenna
Structure Registration (``ASR'') number 1063413 in Sevierville,
Tennessee.1 East Tennessee seeks reconsideration of a March 26,
2003 Forfeiture Order,2 in which the Enforcement Bureau imposed a
monetary forfeiture in the amount of two thousand four hundred
dollars ($2,400), for willfully violating Section 17.57 of the
Commission's Rules (``Rules'').3 That section requires an owner
of an antenna structure for which an ASR number has been obtained
to immediately notify the Commission of a change in ownership of
the antenna structure. For the reasons discussed below, we deny
the petition and affirm the monetary forfeiture in the amount of
2. On May 15, 2002, an agent of the Federal Communications
Commission's (``Commission'' or ``FCC'') Enforcement Bureau,
Atlanta, Georgia Field Office (``Atlanta Office''), in the course
of researching a tower violation, found that FCC records
indicated that the owner of the antenna structure was Dollywood
Broadcasting. However, East Tennessee advised the agent that it
owned the antenna structure and that Dollywood Broadcasting was
the previous owner. In a June 27, 2002, Notice of Apparent
Liability for Forfeiture (``NAL''),4 the Atlanta Office found
that East Tennessee willfully violated Section 17.57 of the Rules
by not immediately notifying the Commission via FCC Form 854
concerning the change in ownership. Accordingly, East Tennessee
was assessed a $3,000 forfeiture for the violation.5 In its
August 16, 2002 response to the NAL, East Tennessee argued that
the forfeiture should be set aside, explaining that it believed
in good faith that the May 11, 2000 notification of the
consummation of the assignment of license for WSEV(AM), 6 the
application for assignment of license,7 and the proffered
ownership report adequately alerted the Commission to the change
in ownership of the antenna structure. In the Forfeiture Order,
we explained that Section 17.57 of the Rules clearly requires
that owners notify the Commission of a change in ownership of an
antenna structure using FCC Form 854 and that licensees are
expected to know and comply with the Commission's Rules.8 In
addition, although East Tennessee promptly took remedial actions
to correct the violation, the Enforcement Bureau found that such
actions taken to correct a violation are not mitigating factors
justifying reduction or cancellation of a forfeiture. However,
due to its past history of compliance, the initial forfeiture
amount of $3,000 was reduced to $2,400.
3. In its petition, East Tennessee again avers its good
faith belief that the May 11 notification, assignment of license
application and subsequently filed ownership report adequately
alerted the Commission to the change in ownership of the antenna
4. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934,9 as amended (``Act''), Section 1.80 of the Rules,10 and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines.11 In
examining East Tennessee's petition, 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.12
5. In its petition, East Tennessee explains that it
erroneously assumed that the Commission's electronic databases
were linked and that the submission of one notification to the
Commission would update all information contained in the
Commission's records.13 Moreover, it again points to its claimed
good faith efforts to comply with the notification requirement,
explaining that ``mistakes happen despite adherence to proper
procedures.''14 However, East Tennessee did not adhere to proper
procedures in this case. The Rule is unmistakably clear. A
change in ownership information immediately triggers a
requirement to advise the Commission of the event using FCC Form
854.15 East Tennessee made no attempt to file a form 854. Such
precision is necessary to promote certainty, clarity, and a
seamless application of this rule. Accurate ASR data is
necessary for the Commission to meet its public safety
responsibilities with respect to tower marking and lighting. The
petition is denied.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act16 and Section 1.106 of the Rules,17 East
Tennessee's petition for reconsideration of the March 26, 2003,
Forfeiture Order IS DENIED.
7. 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.18
Payment shall 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 must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
8. IT IS FURTHER ORDERED THAT this Order shall be sent by
regular mail and by 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 This is the antenna structure used for operation of WSEV(AM),
Sevierville, Tennessee. East Tennessee is also the licensee of
2 East Tennessee Radio Group, L.P., 18 FCC Rcd 27084 (Enf. Bur.
2003) (``Forfeiture Order'').
3 47 C.F.R. § 17.57.
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480010 (Enf. Bur., Atlanta Office, June 27, 2002).
5 The NAL also included a $2,000 forfeiture for a violation of
Section 17.4(g), 47 C.F.R. § 17.4(g), (failure to display the ASR
number). However, the $2,000 forfeiture for this violation was
canceled in the Forfeiture Order due to East Tennessee's
voluntary and timely efforts to replace the sign prior to the
inspection. See Forfeiture Order at para. 7.
6 (``May 11 notification''). The consummation of the assignment
of the license for WSEV(AM) from Dollywood Broadcasting to East
Tennessee occurred on May 10, 2000.
7 See File No. BAL-20000208AAC, granted March 22, 2000.
8 Forfeiture Order at para. 8, citing 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).
9 47 U.S.C. § 503.
10 47 C.F.R. § 1.80.
11 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
(``Forfeiture Policy Statement'').
12 47 U.S.C. § 503(b)(2)(D).
13 Petition at 2.
14 Id. at 3. East Tennessee points to the Commission's failure
to change the company's address in the database when notified, as
an example of mistakes that happen, and explained that such error
did not delay notice to the WSEV(AM) studio of its Rule
violations, and thus no harm resulted despite the inaccurate
antenna structure records. The fact that no harm resulted is not
a basis for lowering the forfeiture here, although had harm
resulted the forfeiture might have been increased. See
Forfeiture Policy Statement at 12 FCC Rcd 17100 and 17116.
15 See Concilio Mision Cristiana Fuente De Agua Viva, 18 FCC Rcd.
6210, 6211 (Enf. Bur., 2003) (filing an application to assign a
station license does not notify the Commission of a change in the
ownership of the station's antenna structure because acquisition
of a station does not necessarily include acquisition of the
station's antenna structure).
16 47 U.S.C. § 405.
17 47 C.F.R. § 1.106.
18 47 U.S.C. § 504(a).
19 47 U.S.C. § 1.1914.