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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-AT-379
) NAL/Acct. No. 200332480012
Fun Media Group, Inc. ) FRN No. 0007-3298-65
Owner of Antenna Structure )
#1043249 in )
Scant City, Alabama )
MEMORANDUM OPINION AND ORDER
Adopted: October 6, 2005 Released:
October 11, 2005
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``MO&O'') we
deny a Petition for Reconsideration (``Petition'') filed on July
8, 2004, by Fun Media Group (``FMG''), licensee of Station
WAFN(FM), Arab, Alabama, and owner of antenna structure number
1043249, Scant City, Alabama. FMG seeks reconsideration of a
June 8, 2004 Forfeiture Order (``Order''),1 in which the
Enforcement Bureau issued a monetary forfeiture in the amount of
eight thousand dollars ($8,000) for willful violation of Section
17.50 of the Commission's Rules ("Rules").2 The noted violation
involves FMG's failure to clean and repaint its antenna structure
to maintain good visibility. For the reasons discussed below, we
affirm the monetary forfeiture of $8,000.
2. On October 30, 2002, a Commission agent
(``agent'') from the Atlanta, Georgia Field Office (``Field
Office'') inspected the referenced antenna structure (or
``tower'') owned by FMG. The Commission's antenna structure
registration database indicates that the structure is required to
be painted. At the time of the inspection, the agent observed
that the tower's aviation orange and white paint was faded and
chipped, reducing the visibility of the structure.
3. On December 6, 2002, the Atlanta Office proposed a
$10,000 forfeiture in a Notice of Apparent Liability for
Forfeiture (``NAL'') for the antenna structure violation. On
January 13, 2003, FMG submitted a response to the NAL
(``Response'').3 In its Response, FMG disputed the findings of
the Atlanta Office regarding the condition of the antenna
structure, and requested a cancellation of the forfeiture based
on its assertion that the circumstances surrounding the
inspection did not support the violation cited in the NAL. In
denying FMG's request, the Order noted that the forfeiture was
reduced to $8,000 because FMG has no prior record of violation
with the Commission. FMG petitioned for reconsideration stating
that the Order failed to properly address FMG's arguments
concerning the conditions of the tower, the agent's distance from
the structure and other important facts which, in FMG's view,
undermine the validity of the NAL.
4. Section 503(b) of the Communications Act
of 1934,4 as amended (``Act''), 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
Guidelines6 (``Forfeiture Guidelines'') set forth the
Commission's standards for review of a petition for
reconsideration of the imposition of a forfeiture for a rule
violation. 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.7
A. Licensee's Arguments
5. Section 17.50 of the Rules states that antenna
structures requiring painting must be cleaned or repainted as
often as necessary to maintain good visibility. The Commission
has consistently held that there is a significant public safety
concern with regard to antenna structures. Thus, the Commission
enforces antenna structure registration requirements and painting
requirements to maintain the tower's visibility to aircraft.8
6. FMG alleges that the Order failed to provide
an analysis of the factors proffered by FMG challenging the
agent's ability to observe the condition of the tower. FMG
argues that the effects of distance from which the agent observed
the tower and weather prevented the agent from being able to
determine correctly the tower's condition on October 30, 2002.
FMG further asserts that because October 30, 2002 was an overcast
day, the tower would appear dark and also submits a weather
report (``report'') showing 1 ¼ inches of precipitation on
October 30, 2002.
7. We disagree. The Order addressed all
factors, concluding that the tower observation by the agent met
established procedure, and that the agent's observations and
experience allowed him to determine the tower's condition. We
find nothing in FMG's Petition to warrant overturning the agent's
determination.9 This conclusion is buttressed by the facts that
the agent observed the tower from an approved distance and with
the benefit of binoculars as noted in FMG's Petition.10 That
October 30, 2002, was an overcast and rainy day does not
undermine the validity of the agent's observations, which reflect
a thorough and proper analysis of the tower's condition.
8. FMG also contends that a series of
statements by ``independent third parties'' have sufficient
weight to overrule the agent's observations. Again, we disagree.
As noted in the Order neither the statement of John Hain nor
Robert Murphy specifically addresses the condition of the tower
on October 30, 2002. These statements do not belie the validity
of the agent's observations and determination that the antenna
structure was not in compliance with § 17.50. Hain's statement,
dated January 10, 2003, contends that the tower was properly
painted sometime within the period from July 10, 2002 and January
10, 2003, but provides no specificity as to whether the antenna
was painted on October 30, 2002. Murphy's statement reflects his
observations during a flight on September 29, 2002, more than a
month prior to the agent's observation. He states that he has
never had a problem seeing the towers, and then further states
they are depicted on the Atlanta Sectional. Murphy's observation
as to the tower's condition appears to be based on his overall
familiarity with the tower rather than the particular condition
of the tower on a date proximate to October 30, 2002. Our
rejection of his conclusion is further premised on the fact that
he viewed the tower from a distance of 11/2 miles. In sum, we
find that neither statement reflects the condition of the tower
on October 30, 2002, and thus reject them and the argument that
they overrule the agent's observations. Further, as a factual
matter, FMG states that the tower was painted ``in December 23,
2002'' almost two months after the agent's observations.
9. FMG further argues that the fact the
National Weather System (``NWS'') used the tower for its
operation established the fact the tower was in good condition.
The acceptance by the NWS of FMG's tower for use in its operation
does not establish that the NWS considered anything other than
the tower's location. We note that FMG has not provided any
evidence that the National Weather Service considered the paint
condition of the tower in selecting the tower. Thus, we reject
10. In its petition, FMG next argues that the
photographic evidence it submitted was not addressed. After
review of the record, we agree with FMG and will address the
photographic evidence FMG provided herein.11 FMG submitted in
its January 13, 2003 response to the NAL, a series of pictures of
its tower taken from ¼ mile on December 9, 2002. In these
photographs, the tower appears faded and dark. The photographs
taken by FMG cannot overcome the observations of the agent made
on October 30, 2002, from as close as 100 feet with the benefit
of using binoculars. We thus find that the photographic evidence
submitted by FMG does not undermine the agent's determination or
warrant reversal. We further find that Midwest,12 cited by FMG,
is inapposite as the pictorial record in Midwest was conclusive
in establishing that the agent's conclusion was erroneous.
B. Inability to pay
11. In the Order, we considered Petitioner's
arguments, supporting material and cases cited and concluded that
the FMG has not given sufficient justification to warrant the
12. In its Petition, FMG again raises the issue of
inability to pay, but adds nothing to its previously rejected
showing that would permit us to approve its request. In
analyzing economic hardship claims, as the Order explains,13 the
Commission generally looks to companies' gross revenues as
reasonable and appropriate yardsticks to determine their ability
to pay assessed forfeitures.14 Indeed, the Commission stated
that if companies' gross revenues are sufficiently large, the
fact that net losses are reported, alone, does not necessarily
establish inability to pay.15 We find that FMG's tax returns for
1999, 2000, 2001, 2002 and 2003 reflect sufficiently large gross
revenues and that FMG's gross revenues effectively negate the
financial hardship claim.16 FMG seeks to distinguish the holding
in PJB Communications (``PJB'')17 that gross revenues, not losses
are the standard for determining an inability to pay claim.
FMG's argument is predicated upon the Commission's recognition of
an exception to the holding in PJB, that in limited
circumstances, losses may be considered sufficient to justify an
inability to pay claim. By referencing salaries and debt
payments in its returns, FMG claims that it meets the
exception.18 FMG does not explain how its described
circumstances bring it within the noted exception. We further
find that FMG has not substantiated its claim that payment of the
$8,000 claim would adversely affect its service to the public.19
Finally, the cases FMG seeks to distinguish20 are not on point,
as each case is cited only for the forfeiture's percentage of
that licensee's gross revenue and the fact that the forfeiture
percentage was found reasonable. The instant forfeiture
assessment and the percentage of gross revenues it represents
falls within the range that has been found acceptable.21
Accordingly, we reject FMG's claim of inability to pay.
13. We have examined FMG's Petition pursuant to
the statutory factors above and in conjunction with the Policy
Statement. As a result of our review, we affirm the Order's
conclusion that FMG willfully violated Section 17.50 of the Rules
and that no reduction is warranted for inability to pay.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED THAT, pursuant to
Section 40522 of the Act and Section 1.106 of the Rules,23 FMG's
July 8, 2004 Petition for Reconsideration of the Enforcement
Bureau's Forfeiture Order issued on June 8, 2004 IS DENIED.
15. IT IS ALSO ORDERED THAT, pursuant to Section 503(b) of
the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,24
Fun Media Group IS LIABLE FOR A MONETARY FORFEITURE in the amount
of eight thousand dollars ($8,000) for willfully violating
Section 17.50 of the Rules.
16. Payment of the forfeiture shall be made in the manner
provided in Section 1.80 of the Rules within 30 days of the
release of the 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.25
Payment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Acct. No. and FRN
No. referenced above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail
may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106.
17. IT IS FURTHER ORDERED that, a copy of this Order
shall be sent by Certified Mail Return Receipt Requested and by
First Class Mail to Fun Media Group, Inc., 981 Brindlee Mountain
Parkway, Arab, AL 35016 and to its counsel, M. Scott Johnson,
Gardner, Carton & Douglas, 1301 K Street, N.W. Suite 900 East
Tower, Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
1 Fun Media Group, Inc., 19 FCC Rcd 10230 (Enf. Bur. 2004).
2 47 C.F.R. § 17.50.
3 FMG supplemented its Response on July 8, 2004 with tax returns
from 2002 and 2003.
4 47 U.S.C. § 503.
5 47 U.S.C. § 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 SpectraSite Communications, Inc., 17 FCC Rcd 7884, 7888 (2002);
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002);
Cumulus Licensing Corp., 19 FCC Rcd 24,815 (Enf. Bur. 2004);
Exosphere Broadcasting, LLC, 19FCC Rcd 23,554 (Enf. Bur. 2004);
North Country Repeater, 19 FCC Rcd 22,139 (Enf. Bur. 2004).
9 See William L. Needham and Lucille Needham, 18 FCC Rcd 5521
(Enf.) Bur. 2002) (upholding the field agent's determination that
the tower's painted bands were not clearly visible, despite tower
owner's assertion that it had no difficulty discerning the
painted bands and maintained a painting schedule for the tower).
10 FMG's Petition acknowledges and discounts, without
explanation, the effect the agent's use of binoculars had on his
ability to observe the tower's condition., even at a distance
effectively less than 100 feet. Petition, ¶ 5.
11 The Commission has determined that consideration of a
previously unconsidered pleading within a reconsideration
proceeding is appropriate where all the allegations are fully
reviewed and addressed prior to a determination in the
reconsideration. See California Metro Mobile Communications, 17
FCC Rcd 22974 (2002); Eagle Radio, Inc., 12 FCC Rcd 5105 ¶2
12 Midwest Towers Partners, LLC,18 FCC Rcd 12921 (Enf. Bur.
13 12 FCC Rcd 17087, 17093 ¶ 9, recon. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement").
14 ID. at 17113.
15 See, e.g., Alpha Ambulance, Inc., 19 FCC Rcd 2547 (2004);
Local Long Distance, Inc., 15 FCC Rcd 24385 (2000), recon.
denied, 16 FCC Rcd 10023, 10025, ¶ 6, (2001); Independent
Communications, Inc., 14 FCC Rcd 9605 (1999), recon. denied, 15
FCC Rcd 16060, 16060 ¶ 2 (2000); Hoosier Broadcasting Corp., 14
FCC Rcd 3356 (CIB 1999), recon. denied, 15 FCC Rcd 8640, 8641 ¶ 7
(Enf. Bur. 2000).
17 PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
19 Petition for Reconsideration, para.13.
20 Hoosier Broadcasting Corp., 15 FCC Rcd 8640, 8641 (2003) and
Afton Comm. Corp. 7 FCC Rcd 6741, 6741 (1992).
21 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
(1992) (Forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues).
See also, Hoosier Broadcasting Corporation, 15 FCC Rcd 8640, 8641
(Enf. Bur. 2002) (Forfeiture not deemed excessive where it
represented approximately 7.6 of the violator's gross revenues);
Afton Communications Corp., 7 FCC Rcd 6741, 6742 (Comm. Carrier
Bur. 1992) (Forfeiture not deemed excessive where it represented
approximately 3.9 percent of violator's gross revenues).
22 47 U.S.C. § 405.
23 47 C.F.R. § 1.106.
24 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
25 See 47 U..S.C. § 504(a).