Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
CB Radio, Inc. ) File Number EB-02-AT-398
Owner of Unregistered Antenna ) NAL/Acct. No.200332480016
Structure located at 36° 20' 07'' )
North Latitude by 82° 13' 03'' ) FRN 0007-8859-81
West Longitude in Elizabethton, )
Adopted: August 4, 2004 Released: August 6,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand four hundred
dollars ($2,400) to CB Radio, Inc. (``CB''), licensee of AM radio
station WBEJ, Elizabethton, Tennessee and owner of the station's
antenna structure (registration number 1237701) for willful and
repeated violation of Section 17.4(a) of the Commission's Rules
(``Rules'').1 The noted violation involves CB's failure to
register its antenna structure for the station.
2.On January 23, 2003, the District Director of the
Commission's Atlanta, Georgia, Field Office (``Atlanta Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'') to
CB in the amount of three thousand dollars ($3,000).2 CB filed
its response on February 24, 2003.
2. On September 25, 2001, an agent from the Atlanta Office
inspected AM radio station WBEJ and its antenna structure,
located at 36° 20' 07'' North Latitude and 82° 13' 03'' West
Longitude, in Elizabethton, Tennessee. The inspection
established that WBEJ's antenna structure was not registered with
the Commission. On October 4, 2001, the Atlanta Office issued a
Notice of Violation (``NOV'') to CB for failure to register
WBEJ's antenna structure with the Commission. On October 29,
2002, an agent from the Atlanta Office again inspected AM radio
station WBEJ and its antenna structure. The agent determined
that the antenna structure was still unregistered.
3. On January 23, 2003, the District Director of the
Atlanta Office issued the subject NAL to CB finding that it
willfully and repeatedly violated Section 17.4(a) of the Rules by
failing to register the antenna structure. In its response to
the NAL, CB seeks cancellation of the proposed monetary
forfeiture. CB contends that it attempted to register WBEJ's
antenna structure but was not successful until February 14,
2003,3 and that its failure to timely register WPEJ's antenna
structure was not willful.
4. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),4 Section 1.80 of the Rules,5
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Policy Statement'').6 Section 503(b) of the Act
requires that, in examining CB's response, 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
other such matters as justice may require.7
5. Section 17.4(a) of the Rules requires the owners of
existing antenna structures that were assigned painting or
lighting requirements before July 1, 1996, to register those
antenna structures with the Commission no later than July 1,
1998.8 WBEJ's antenna structure was unregistered between
September 25, 2001, the date of our initial inspection, and
October 29, 2002, the date of our follow-up inspection. We find
that CB violated Section 17.4(a) of the Rules by failing to
register WBEJ's antenna structure.
6. CB contends that its failure to register WBEJ's
antenna structure is not willful because it attempted to register
its antenna structure.9 CB asserts that, following the NOV
issued on October 4, 2001, CB filed Form 7460-1 with Federal
Aviation Administration (``FAA'') to obtain a Determination of No
Hazard to Air Navigation (for submission with an antenna
structure registration application) but had heard nothing from
the FAA at the time of the FCC's October 29, 2002 inspection.
Additionally, CB asserts that after the October 29, 2002,
inspection, it re-filed FAA Form 7460-1 upon learning that the
FAA had no record of receiving that form. The FAA issued a
Determination of No Hazard to Air Navigation to CB on January 13,
2003.10 CB filed an antenna structure registration application
on February 4, 2003, and completed registration of the tower on
February 14, 2003.
7. CB knew WBEJ's antenna structure was unregistered but
did not register it until more than 16 months after the issuance
of the NOV. We, accordingly, find that CB's violation of Section
17.4(a) of the Rules was both willful11 and repeated.12
8. As support for canceling the proposed monetary
forfeiture for the Section 17.4(a) violation, CB cites Jamie
Patrick Broadcasting, Ltd., 17 FCC Rcd 26277 (Enf. Bur. 2002);
Truth Broadcasting Corporation, 17 FCC Rcd 24376 (Enf. Bur.
2002); and C.W.H. Broadcasting, Inc., 17 FCC Rcd 14324 (Enf. Bur.
2002). These cases, however, are factually dissimilar to this
case and contain nothing which supports canceling the forfeiture.
In Jamie Patrick Broadcasting, Ltd, there was no violation of
Section 17.4(a) and the cancellation of the forfeiture was based
on the licensee's inability to pay the forfeiture amount. While
the NALs issued in Truth Broadcasting Corporation and C.W.H.
Broadcasting, Inc. did involve violations of Section 17.4(a), the
tower licensees in those cases sought cancellation of the
forfeitures based on reasons different from those offered by CB.
Moreover, in Truth Broadcasting Corporation we determined, upon
review of the NAL, that the record ultimately did not support a
finding of a Section 17.4(a) violation. In C.W.H. Broadcasting,
Inc., we reduced the forfeiture amount for the Section 17.4(a)
violation, as we did for the amounts for the other noted
violations, primarily because of the financial hardship we
believed the forfeiture would pose based on the documents C.W.H.
9. We find that CB's filing of FAA Form 7460-1 prior to
the October 29, 2002, inspection demonstrates a good faith effort
to comply with Section 17.4(a).13 However, CB displayed a lack
of diligence by failing to check the status of its FAA filing
until after the October 24, 2002, inspection. We find that CB's
partial effort to register WBEJ's tower following the September
25, 2001, inspection does not warrant cancellation of the
proposed forfeiture, but does warrant a reduction to $2,400.
10. We have examined CB'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
CB willfully and repeatedly violated Section 17.4(a) of the Rules
and we find that cancellation of the proposed monetary forfeiture
is not warranted but a reduction to $2,400 is appropriate.
IV. ORDERING CLAUSES
12. 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,14 CB Radio, Inc., IS LIABLE FOR A MONETARY FORFEITURE
in the amount of two thousand four hundred dollars ($2,400) for
its willful and repeated violation of Section 17.4(a) of the
13. 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.15
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.
200332480016 and FRN 0007-8859-81. 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.
14. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to CB Radio, Inc., 626 ½ E. Elk Avenue, Elizabethton,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.4(a).
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480016 (Enf. Bur. Atlanta Office, January 23, 2003).
3 The Commission's records confirm that CB registered WBEJ's
antenna structure on February 14, 2003.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 U.S.C. § 503(b)(2)(D).
8 WBEJ's tower was assigned painting and lighting requirements
before July 1, 1996, by FAA study SW-OE-1884.
9 We will not address the attempts described by CB to register
WBEJ's tower before the September 25, 2001, inspection because
this forfeiture proceeding is based on CB's failure to register
the tower after that date.
10 CB asserts that it did not receive the FAA Determination until
a few weeks later.
11 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',
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 . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
12 As provided by 47 U.S.C. § 312(f)(2), a continuous violation
is ``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991).
13 See Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 (2003),
recon. denied, 18 FCC Rcd 25481 (2003).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.