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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Barnacle Broadcasting Company, Ltd ) File No. EB-02-AT- 410
Owner of Antenna Structure # 1063961 ) NAL/Acct. No.
In Port Royal, South Carolina )
Atlanta, Georgia ) FRN 0006-1527-55
Adopted: July 22, 2004 Released: July 26, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000) to Barnacle Broadcasting Company, Ltd (``Barnacle'') for
willful violation of Section 17.51 of the Commission's Rules
(``Rules'').1 The violation involves Barnacle's failure to
exhibit all red obstruction lighting from sunset to sunrise on
its antenna structure # 1063961 registered in Port Royal, South
2. On January 21, 2003, the Atlanta Office issued a
Notice of Apparent Liability (``NAL'') to Barnacle for a
forfeiture in the amount of ten thousand dollars ($10,000) citing
willful and repeated violation of Section 17.51 of the
Commission's Rules.2 Barnacle filed its response to the NAL on
February 27, 2003.
3. On November 25, 2002, in response to a report of
an unlighted tower, a Commission field agent from the
Commission's Atlanta Field Office (``Atlanta Office'') inspected
Barnacle's antenna structure and determined that none of the red
obstruction lights were lighted during evening hours. The FAA
had no record of any report of a lighting outage for this
structure. The agent determined that Barnacle was the owner of
the 382 meter (1253 feet) tall antenna structure, ASR # 1063961.
This violation resulted in the Atlanta Office's issuance of an
NAL to Barnacle on January 21, 2003.
4. Barnacle replied to the NAL admitting that it owns
the instant structure. However, Barnacle asserted multiple
reasons why the forfeiture should be reduced or cancelled.
Barnacle stated that it did not know of the light outage,
therefore the violation was not willful. Further, Barnacle
asserts that it was not repeated because a NOTAM was issued on
the second day. Barnacle also contended: it had no prior
offenses; it was not a licensee, or applicant for a license, now
or at the time of the violation; it never received notice from
the Commission of its obligations under 303(q) of the Act or Part
17 of the Rules; the structure is in an area prone to lightning
damage; and it acted promptly to repair the structure upon
notification by the Commission Agent.
5. Finally, Barnacle requested cancellation of the
forfeiture asserting an inability to pay the forfeiture.
Barnacle, however, submitted only a Balance Sheet, Mortgage Note
and Income Statement for 2002 created by the President of
Barnacle as documentation in support of its request.
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''),3 Section 1.80 of the Rules,4
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 Barnacle'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
such other matters as justice may require.5
7. Section 17.51 of the Rules requires that all red
obstruction lighting be exhibited from sunset to sunrise unless
otherwise specified. Further, Section 17.47 of the Commission's
Rules6 requires that the owner of a registered antenna structure
observe the lights at least once each 24 hours either visually or
by observing an automatic indicator; or alternatively provide and
maintain an automatic alarm system designed to detect any failure
of the lights and to notify the owner of the failure. Barnacle
states its structure is registered and that it did not meet the
owner's obligations; rather, it chose to rely upon others to
inform it of any light outage. Barnacle does not provide any
evidence that its choice met the requirements of Section 17.47.
8. Barnacle states that those upon whom it relied
did not inform Barnacle of the lighting outage but provides no
evidence that there was a procedure in place for these others to
monitor the lights and notify Barnacle in the event the lights
were out. Further, Barnacle contends that because it was unaware
of the light outage, the violation was not willful. Barnacle
cites the Review Board holding in David R. Price, 70 RR 2d 803
(Rev. Bd. 1992) for the erroneous proposition that the definition
of willful requires actual notice of a violation by the licensee
in order to be willful. We disagree. The Review Board holding
in Price is based upon an entirely different set of facts in
which the licensee's towers were not lighted because the licensee
had not paid its electric bill. Additionally, in Price, the
Review Board noted that Price misconstrued the definition of
willful, when he argued that his failure to light the towers can
not be willful if complying with the lighting requirements is
impossible citing Section 312(f)(1) of the Act7 which states:
The 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 or any rule or regulation of the Commission
authorized by this Act or by a treaty ratified by the
Further, in Southern California Broadcasting Co.8, the Commission
held that Section 312(f)(1) of the Act also applies to Section
503(b). Accordingly, Barnacle need not have had actual knowledge
that the lights were out to be found to have committed a
``willful'' violation. Barnacle neither mentions Southern
California, nor attempts to distinguish it. Nor does Barnacle
mention or distinguish Eure Family Limited Partnership, 16 FCC
Rcd 21302 (Enf. Bur. 2001), recon. denied, 17 FCC Rcd 7402 (Enf.
Bur. 2002), review denied, 17 FCC Rcd 21861, 21863-21864 (2002),
which is apposite to the instant case.9 Based on the FCC agent's
observations during his November 25 investigation, and Commission
precedent, we find that Barnacle willfully10 violated Section
17.51 of the Rules. Because we conclude that Barnacle's
violation was willful, we need not address whether it was
9. We also reject Barnacle's assertions that,
under Section 303(q) of the Act,12 as a non-licensee antenna
structure owner, it was not responsible for following Commission
Rules and that the Commission had an obligation to inform it as
to its duties as owner of the antenna structure. The
notification to tower owners for this rule was given through
publication in the Federal Register upon promulgation of Section
17.51 of the Commission's Rules.13 Further, and more to the
point, Barnacle's President registered the antenna structure with
the FCC on April 28, 1999, and included the FAA study number 98-
ASO-4417-06, which provides the lighting and painting
requirements necessary for an antenna structure to be deemed no
hazard to air navigation. In other words, Barnacle provided the
FAA lighting and painting requirements to the FCC, thus making
clear he had notice of such requirements.
10. Moreover, Barnacle, as a former licensee was
responsible for knowing both its obligations under the Act and
the Commission's Rules,14 and that Part 17 of the Rules applied
to licensees, permittees and tower owners. The Commission's
Rules15 hold Barnacle responsible for compliance and do not
excuse ignorance of those requirements.16 Barnacle, as a former
licensee, cannot now conveniently disavow knowledge after his
license terminated. As a current tower owner, Barnacle is
responsible for both knowing the Commission's Rules and complying
with them.17 In the instant case, Barnacle, as a licensee, was
subject to the very rules, Section 303(q) of the Act and Section
17.51 of the Rules, of which he now claims to have had no notice.
Accordingly, Barnacle's argument that its violation was mitigated
because it was not informed by the Commission of its obligation
to comply with Section 303(q) of the Act and Part 17 of the
Commission Rules is without merit.18
11. Nor can Barnacle's remedial efforts to establish
a system to assure compliance result in a cancellation or
reduction of the forfeiture. Barnacle's remedial efforts to
correct the violation, after the violation was discovered by the
Commission are not a mitigating factor. See Seawest Yacht
Brokers, 9 FCC Rcd 6099 (1994), ``corrective action taken to come
into compliance with Commission rules or policy is expected, and
does not nullify or mitigate any prior forfeitures or
violations.'' See also Station KGVL, Inc., 42 FCC 2d 258, 259
12. Barnacle's request for reduction of the forfeiture
based upon its inability to pay was not accompanied by its tax
returns or other satisfactory documentation. The NAL gave
Barnacle specific requirements about what documents it needed to
submit that would support a claim of inability to pay.19
Barnacle provided no reliable information regarding its revenues.
The Commission generally relies on gross revenues as the best
evidence of inability to pay.20 Accordingly, we are not
persuaded by Barnacle's financial hardship claim and thus, we
find that there is no basis to reduce the assessed forfeiture
amount due to inability to pay.
13. We have examined Barnacle's 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 Barnacle failed to exhibit all red obstruction
lighting on its tower from sunset to sunrise in willful violation
of Section 17.51 of the Rules. We have also reviewed the
Commission's database regarding prior violations and find that
Barnacle has no record with the Commission of a prior violation.
Considering the prior record of Barnacle Broadcasting Company,
Ltd, we agree that the forfeiture amount should be reduced.
Accordingly, we reduce the $10,000 forfeiture proposed by the
Notice of Apparent Liability to $8,000 on the basis of a history
of overall compliance with Commission Rules.
IV. ORDERING CLAUSES
14. 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,21 Barnacle Broadcasting Company, Ltd IS
LIABLE FOR A MONETARY FORFEITURE in the amount of eight thousand
dollars ($8,000) for willful violation of Section 17.51 of the
15. 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.22 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. 200332480014 and FRN 0006-1527-55.
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. 20554.23
16. IT IS FURTHER ORDERED that a copy of this
Order shall be sent by First Class and Certified Mail Return
Receipt Requested to Mr. Pegram Harrison, President, Barnacle
Broadcasting Company, Ltd., 3 Yonah Drive, Atlanta, GA 30309 and
its Counsel, Benjamin J. Lambiotte, GARVEY SCHUBERT BARER, 1000
Potomac Street, N.W., Fifth Floor, Washington, D.C. 20007.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.51.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480014 (Enf. Bur., Atlanta Office, released January 21,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 C.F.R. § 17.47.
7 47 U.S.C. § 312(f)(1).
8 See, Southern California Broadcasting Co., 6 FCC Rcd 4387
9 In Eure, supra, the licensee attempts to assign blame for an
unlit tower to an agent with whom Eure contracted to receive
notice of a tower light outage. The Commission specifically
declined to relieve the licensee of its obligations under the
rules due to an agent's failure to perform its duties.
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,'... 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., supra.
11 47 U.S.C. § 312 (a)(4) provides administrative sanctions ``for
willful or repeated violation of, or willful or repeated failure
to observe any provision of this Act or any rule or regulation of
the Commission authorized by this Act or by a treaty ratified by
the United States.'' (Emphasis added).
12 47 U.S.C. § 303(q) provides in pertinent part, that a tower
owner is responsible for maintaining required tower painting and
licensing when the owner is neither a Commission licensee or
13 See 61 FR 4364, Feb. 6, 1996.
14 47 C.F.R. §§ 0.1, et. seq.
15 See note 6, supra.
16 See Eure Family Limited Partnership, supra.
18 Further, we note that Barnacle's President states that he was
``generally aware'' of the obligations of 303(q) and Part 17 from
the period when Barnacle held an FM station license.
19 NAL, supra, ¶ 12. These include 3 years tax returns;
financial documents prepared to generally accepted accounting
practices; or other reliable and objective documentation that
accurately reflects petitioner's current financial status.
20 See Forfeiture Policy Statement, 12 FCC Rcd, at 17106-07, ¶
43. See also PJB Communications of Virginia, Inc. 7 FCC Rcd
2088, 2089, ¶ 8 (1992).
21 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
22 47 U.S.C. § 504(a).
23 See 47 C.F.R. § 1.1914.