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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Three Angels Corp. ) File No. EB-02-SJ-057
Owner of Antenna Structure number 1235917 )
St. Thomas, United States Virgin islands ) NAL/Acct. No.
) FRN 0007-4419-26
Adopted: March 15, 2004 Released: March 17, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of thirteen thousand
dollars ($13,000) to Three Angels Corporation (``Three
Angels''), licensee of station WGOD-FM, St. Thomas,
Virgin Islands, for willful and repeated violation of
Sections 17.4(a) and 17.21(a) of the Commission's Rules
(``Rules'').1 The noted violations involve Three
Angels' failure to register and paint the antenna
structure for station WGOD-FM.
2. On October 22, 2002, the Commission's San Juan, Puerto
Rico, Resident Agent Office (``San Juan Office'')
released a Notice of Apparent Liability for Forfeiture
(``NAL'') to Three Angels for a forfeiture in the amount
of thirteen thousand dollars ($13,000).2 Three Angels
filed its response to the NAL on February 12, 2003, and
supplemented that response on March 6, 2003.
3. Three Angels is the owner of the WGOD-FM antenna
structure. On September 10, 2002, an agent from the San
Juan Office observed that Three Angels' antenna
structure was not painted and that there was no Antenna
Structure Registration (``ASR'') number observable at or
near the base of the antenna structure. The agent's
check of the Commission's ASR data base showed that
there was no antenna structure registered at or near the
location of Three Angels' antenna structure.
4. On September 11, 2002, the agent inspected radio
station WGOD-FM and its antenna structure and again
observed that the antenna was unpainted. Three Angels
could not produce any evidence that the antenna
structure was registered, but did provide the agent with
Federal Aviation Administration (``FAA'') Study No. 00-
ASO-6223-OE, dated August 28, 2000, which indicates that
Three Angels' antenna structure has painting and
lighting requirements.3 The ASR data base indicates
that Three Angels registered its antenna structure on
September 17, 2002.
5. On October 22, 2002, the San Juan Office issued a NAL
for a forfeiture in the amount of $13,000 to Three
Angels for willful and repeated violation of Sections
17.4(a) and 17.21(a) of the Rules. In its response,
Three Angels seeks cancellation of the proposed monetary
forfeiture. Three Angels states that, based on the
conclusion of its consulting engineer, it believed that
its tower did not require painting and lighting because
it is less than 200 feet above ground level.
Additionally, Three Angels asserts that it relied upon
its consulting engineer to take care of the tower
registration. Three Angels also states that it is
struggling economically and submits, in a supplementary
response, a copy its 2001 federal income tax return and
partial copies of its 1999 and 2000 federal income tax
6. Three Angels further asserts in its response to the NAL
that it will submit a supplementary response concerning
compliance with the painting requirement. However, to
date, we have not received such a supplementary
response. We did receive correspondence from Three
Angels on February 13, 2004, but that correspondence
simply transmits a copy of Three Angels' earlier
response to the NAL.
7. 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, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Policy Statement''). Section
503(b) of the Act requires that the Commission, in
examining Three Angels' response, 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.6
8. Section 17.21(a) of the Rules requires antenna
structures to be painted and lighted when they exceed
200 feet in height above the ground or when they require
a special aeronautical study. In this instance, Three
Angels' tower required a special aeronautical study
because of its proximity to an airport. The October 28,
2000, study (FAA Study No. 00-ASO-6223-OE) specifies
that Three Angels' antenna structure must be painted and
lighted. Three Angels concedes that its tower was not
painted but claims that it relied on the conclusion of
its consulting engineer that painting was not required.
``The Commission has long held that licensees and other
Commission regulatees are responsible for the acts and
omissions of their employees and independent contractors
and has consistently refused to excuse licensees from
forfeiture penalties where actions of employees or
independent contractors have resulted in violations.''7
Furthermore, Three Angels had a copy of FAA Study No.
00-ASO-6223-OE, which specified the tower's painting
requirements. Therefore, it had actual notice of the
painting requirement. We find that Three Angels
willfully8 and repeatedly9 violated Section 17.21(a) of
9. Section 17.4(a) of the Rules requires the registration
of antenna structures which require notice to the
Federal Aviation Administration. Since a special FAA
aeronautical study was required for Three Angels' tower,
it is clear that FAA notification was required for that
tower. Three Angels concedes that its tower, which was
constructed March 31, 1996, was not registered but
asserts that it relied on its consulting engineer to
register its tower. As pointed out above, Commission
regulatees are responsible for the acts and omissions of
their employees and independent contractors.
Accordingly, we find that Three Angels willfully and
repeatedly violated Section 17.4(a).
10. Three Angels contends that it is struggling
economically and that payment of the proposed forfeiture
amount would create ``an unfair burden.'' In support of
its financial hardship claim, Three Angels submits a
copy its 2001 federal income tax return and partial
copies of its 1999 and 2000 federal income tax returns.
The Commission has determined that, in general, a
licensee's gross revenues are the best indicator of its
ability to pay a forfeiture.10 After reviewing the
financial data submitted, we find no evidence in Three
Angels' response that would support cancellation of the
forfeiture or a reduction based upon financial hardship.
11. Three Angels has provided no information indicating
that it has painted its tower and is now in compliance
with Section 17.21(a) of the Rules. Accordingly, we
will require, pursuant to Section 308(b) of the Act,12
that Three Angels report to the Enforcement Bureau no
more than thirty (30) days following the release of this
order how it plans to achieve compliance with Section
17.21(a). Three Angels' report must be submitted in the
form of an affidavit or declaration signed by an officer
12. We have examined Three Angels' 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 Three Angels
willfully and repeatedly violated Sections 17.4(a) and
17.21(a) of the Rules and that cancellation or reduction
of the proposed $13,000 monetary forfeiture is not
IV. ORDERING CLAUSES
13. 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,13 Three Angels IS LIABLE FOR A
MONETARY FORFEITURE in the amount of thirteen thousand
dollars ($13,000) for failure to register and paint its
antenna structure, in willful and repeated violation of
Sections 17.4(a) and 17.21(a) of the Rules.
14. IT IS FURTHER ORDERED that, pursuant to Section 308(b)
of the Act, Three Angels must submit the report
described in Paragraph 11, above, no more than thirty
(30) days following the release of this order, to the
Federal Communications Commission, Enforcement Bureau,
Spectrum Enforcement Division, 445 12th Street, S.W.,
Room 7-A820, Washington, D.C. 20554, Attention: Thomas
D. Fitz-Gibbon, Esq.
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.14 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. NAL/Acct. No. 200332680001 and
FRN 0007-4419-26. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington,
16. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Three Angels Corporation, 22 Estate
Dorothea, St. Thomas, U.S. Virgin Islands 00803, and to
its counsel, M. Scott Johnson, Esq., Gardner, Carton &
Douglas, 1301 K Street, N.W., Suite 900, East Tower,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.21(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332680001 (Enf. Bur., San Juan Office, released October 22,
3 There is no issue in this case as to Three Angels'
compliance with the lighting requirement.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64
(2002) (internal quotation marks omitted) and cases cited
8 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).
9 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) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
10 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
11 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues).
12 47 U.S.C. § 308(b).
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.