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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-AT-398
CB Radio, Inc. ) NAL/Acct. No.200332480016
Elizabethton, Tennessee ) FRN 0007-8859-81
MEMORANDUM OPINION & ORDER
Adopted: October 21, 2005 Released: October
By the Chief, Enforcement Bureau:
1.In this Memorandum Opinion and Order (``Order''), we deny
the Petition for Reconsideration filed by CB Radio, Inc.
(``CB''), licensee of AM radio station WBEJ in Elizabethton,
Tennessee. CB seeks reconsideration of the Forfeiture Order1
issued by the Enforcement Bureau (``Bureau'') on August 6, 2004.
In that Forfeiture Order, the Bureau found CB liable for a
monetary forfeiture in the amount of two thousand four hundred
dollars ($2,400) for willful and repeated violation of Section
17.4(a) of the Commission's Rules (``Rules'')2 for failing to
register its antenna structure.
2.CB Radio, Inc. is the licensee of AM radio station WBEJ
and the owner of an antenna structure (tower) located in
Elizabethton, Tennessee. On September 25, 2001, an agent from
the Commission's Atlanta, Georgia, Field Office (``Atlanta
Office'') inspected radio station WBEJ and found that CB had not
registered WBEJ's 305 foot tower with the Commission.
3.On October 4, 2001, the Atlanta Office issued a Notice of
Violation (``NOV'') against CB for failure to register the WBEJ
tower with the Commission. On October 29, 2002, the Atlanta
Office inspected radio station WBEJ a second time and found that
CB still had not registered WBEJ's tower with the Commission. On
January 23, 2003, the Atlanta Office issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of three
thousand dollars ($3,000),3 for apparent willful and repeated
violation of Section 17.4(a) of the Rules. In its response to
the NAL, filed February 24, 2003, CB admitted its tower was not
registered until February 14, 2003.4 CB gave an account of its
attempts to register the tower, and sought cancellation of the
proposed monetary forfeiture.5 On August 6, 2004, the Bureau
issued a Forfeiture Order finding that CB willfully and
repeatedly violated Section 17.4(a) of the Rules but reducing the
forfeiture from $3,000 to $2,400 based upon its ``good faith''
attempts to register the tower prior to the second inspection on
October 29, 2002. The Bureau, however, found that CB's failure
to check the status of its filing with the FAA until after the
second inspection constituted a lack of due diligence. The time
period focused on for the NAL and the Forfeiture Order was from
the Atlanta Office's initial inspection of the antenna structure
on September 25, 2001, until the NAL was issued on January 23,
2003. In its Petition for Reconsideration (``Petition''), filed
September 7, 2004, CB argues that the Forfeiture Order should be
vacated, the forfeiture amount cancelled, and the reconsideration
granted because the Commission acted in an arbitrary and
capricious manner against CB.
A. Violation of Section 17.4(a) of the Rules
4. Section 17.4(a) of the Commission's Rules sets
out requirements to tower owners regarding registration with the
Commission. CB's tower required registration with the FAA,6 and
registration with the FCC by July, 1998.7 Forfeitures for
violation of this rule have been imposed in numerous cases8
primarily because the Commission needs to be able to contact the
tower owner, who is ultimately responsible for compliance with
the Commission's rules concerning the construction, marking and
lighting requirements of towers.9
5. CB does not claim that it followed the Commission's
registration rules. Rather, CB claims that it tried to follow
the rules, but could not because the Commission did not respond
to its inquiries and the registration process was within the
control of the Commission, and not with CB. In detail, CB argues
that the Commission acted in an arbitrary and capricious manner
when it charged that CB's failure to register its tower was
``willful and repeated,'' and that the Commission did not
consider CB's efforts to register its antenna structure before
the Commission's first inspection on September 25, 2001. CB also
asserts that the Bureau did not explain why the cases that CB
cited in its response to the NAL were apposite. CB averred that
it made several attempts to register its tower by filing a ``FCC
Application for Antenna Structure Registration'' (``ASR
application'')10 for the antenna in September 1998, and refiled
another one shortly after an October, 1998, reply from the
Commission which stated that CB's first application could not be
granted due to an inconsistency in its registration application.
CB claims then to have written a letter to the Commission on July
12, 1999, inquiring about its application, and that it received
no reply. After the Atlanta Office's inspection in September,
2001, and its NOV issued in October, 2001, WBEJ asserts that its
station manager called the Commission to inquire about the NOV,
but found no one who could answer her questions. According to
CB, the station manager then contacted the Federal Aviation
Administration (``FAA''), and after a second attempt at filing a
Form 7460-111 with the FAA, the FAA issued a clearance for the
tower. After the FAA clearance was granted in January, 2003, CB
filed its registration again with the Commission, which the
Commission granted on February 14, 2003. Because of these
attempts to register the tower, CB claimed in its response that
its violation was not willful, and cited several cases where the
Commission had reduced or cancelled a forfeiture under similar
6. It is well established that a licensee
is charged with the responsibility of knowing and complying with
all the requirements of the Act and the Rules.12 That
responsibility is not excused because the licensee may have
attempted to comply but failed. In fact, there have been several
cases specifically involving a violation of Section 17.4(a) where
the licensee has described its attempts to file its tower
registration, and the Commission has consistently found that such
attempts do not satisfy the requirements of Section 17.4(a).13
In Sutro Corporation, for example, the Commission found the
explanation by the owner of a tower, who made two attempts to
register its tower, to be inadequate. The lengthy delays in
Sutro's filings evinced a lack of diligence that did not entitle
Sutro to a further reduction of the forfeiture amount.14 Also,
in B&H Broadcasting Systems, B&H claimed it timely sent the
required tower registration forms to the Commission. Because the
Commission, however, had no evidence of any attempts by B&H to
register its tower until after B&H had been notified by the
Dallas Field Office, and B&H offered no evidence, the Commission
found B&H had violated Section 17.4(a) of the Rules.15
7.Similarly, CB claims that it made several attempts to
file its applications with the Commission and the necessary form
with the FAA but ``nothing happened.''16 As stated in the
Forfeiture Order, we found that CB made only ``partial effort''
to register the tower and displayed a lack of diligence by
failing to check the status of its FAA filing until after the
second inspection.17 As given above, the Rules in Section 17.4
clearly set out the registration requirements for tower owners.
Further, the Rules provide that final FAA determination of ``no
hazard'' has to accompany that registration or ``processing of
the registration may be delayed or disapproved.''18 The fact
that CB knew that its tower was not registered and continued to
use the tower, made CB's violation of Section 17.4(a) of the
Rules ``willful and repeated.''19 Further, a violation resulting
from an inadvertent mistake or a failure to become familiar with
the FCC's requirements also is considered a willful violation.20
We find CB's efforts to shift the burden of its tower
registration responsibilities to the Commission by stating that
registration was within the control of the Commission and not CB,
to be self-serving and unpersuasive. Neither were the
Commission's actions arbitrary and capricious, 21 as demonstrated
by its consistent holdings in the cases cited above.22
8.Additionally, CB claims that the Commission acted in an
arbitrary and capricious manner because the Commission did not
address, either in the NAL or the Forfeiture Order, CB's efforts
to register its tower prior to its first inspection in 2001. As
the Commission explained in the Forfeiture Order,23 neither CB's
unsuccessful efforts to contact the Commission, nor the
violations that occurred prior to the first inspection by the
Atlanta Office, were used as a basis for the NAL, and thus were
not discussed. The fact remains that when the Atlanta Office
made its inspection in 2001, the tower was not registered, and
remained unregistered until February, 2003. Despite several
alleged efforts to register the tower, CB failed to do so through
its own lack of diligence. The Forfeiture Order did recognize,
however, 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 from $3,000 to $2,400.''24
9.Finally, CB claims that the Commission did not address
the cases that CB cited in its response. We do not understand
how CB can reasonably make this argument, due to the fact that
the Forfeiture Order clearly distinguishes the three Commission
cases that CB cited.25 It is not necessary to reiterate that
explanation. In its Petition, CB has offered no new evidence nor
cited any relevant case law to support a cancellation of the
Forfeiture Order. We have reviewed carefully CB's arguments
pursuant to the statutory factors prescribed by Section
503(b)(2)(D) of the Communications Act of 1934 as amended
(``Act''),26 and in conjunction with The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Policy Statement''),27
and Section 1.80 of the Rules.28 We conclude that CB's Petition
should be denied and the Forfeiture Order affirmed, finding that
CB willfully and repeatedly violated Section 17.4(a) of the
Rules. As the forfeiture amount has already been reduced from
the original amount set out in the NAL, we determine that no
further reduction is appropriate and CB Radio is therefore liable
for a forfeiture of $2,400.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act29 and Section 1.106 of the Rules,30 CB Radio,
Inc.'s Petition for Reconsideration of the August 6, 2004,
Forfeiture Order IS DENIED.
11. 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.31
Payment may be made by credit card to the Commission's Credit and
Debt Management Center at (202) 418-1995 or by mailing a check or
similar instrument, payable to the order of the 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. Requests for full payment under an installment
plan should be sent to: Associate Managing Director - Financial
Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C.
12. 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,
TN 37643, and Dennis Kelly, Esq., P.O. Box 41177, Washington DC
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Chief, Enforcement Bureau
1 CB Radio, Inc., 19 FCC Rcd 14869 (Enf. Bur. 2004) (``Forfeiture
2 47 C.F.R. § 17.4(a) requires the owners of existing antenna
structures that were assigned painting or lighting requirements
before July 1, 1996, to register those antenna structures no
later than July 1, 1998.
3 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480016 (Enf. Bur., Atlanta Office, released January 23,
4 The Commission's records confirm that CB registered WBEJ's
antenna structure on February 14, 2003.
5 CB Radio, Inc.'s statement in response to Notice of Apparent
Liability for Forfeiture, (February 24, 2003) (``Response'').
6 CB's antenna structure required notification to the FAA because
the structure exceeded 200 feet in height. 47 C.F.R. § 17.7(a).
FAA's approved Form 7460-1 must accompany an FCC registration
application for an antenna structure.
7 Also, subsequent to the expiration of the filing period, the
Commission staff issued a Public Notice warning antenna structure
owners to register any unregistered antenna structures subject to
our requirement immediately or face possible monetary forfeitures
or other enforcement action. Public Notice, No-Tolerance Policy
Adopted for Unregistered Antenna Structures,'' 1999 WL 10060 (WTB
8 Sutro Corporation, 19 FCC Rcd 15274 (2004); B&H Broadcasting
Systems, Inc.,19 FCC Rcd 7611(Enf. Bur. 2004); St. Louis Mobile
Systems Inc., 19 FCC Rcd 17712 (Enf. Bur. 2004); FBS Wireless
Corporation, 19 FCC Rcd. 19477 (Enf. Bur. 2004), petition for
reconsideration pending;); NetCom Technologies, Inc., 16 FCC Rcd.
9524 (Enf. Bur. 2001).
9 See 47 C.F. R. §17.2(c).
10 See FCC Form 854, ``FCC Application for Antenna Structure
11 CB's antenna structure required notification to the FAA
because the structure exceeded 200 feet in height. 47 C.F.R. §
17.7(a). FAA's approved Form 7460-1 must accompany an FCC
registration application for an antenna structure.
12 See Forfeiture Policy Statement, 12 FCC Rcd at 17099; see also
Sitka Broadcasting Co.,Inc. 70 FCC 2d 2375, 2378 (1979); L.T.
Simes II and Raymond Simes, 18 FCC Rcd 8977,8980 (Enf. Bur.
2003); Joy Public Broadcasting Corp., 14 FCC Rcd 11326, 11328
13 See cases cited in note 8, supra.
14 Sutro Corporation, supra at 15277.
15 B&H Broadcasting Systems, Inc., supra at 7613.
16 Petition, at page 4, referring to its January 23, 2003
response to the NAL.
17 Forfeiture Order, 18 FCC Rcd at 14870.
18 47 C.F.R. § 17.4(d).
19 Forfeiture Order, at n. 11, citing Southern California
Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991).
20 See PBJ Communications of Virginia, Inc., 7 FCC Rcd 2088
(1992); Standard Communications Corp., 1 FCC Rcd 358 (1986);
Triad Broadcasting Co., Inc., 96 FCC 2d 1235, 1242 (1984).
21 Cf., Press Communications and Emmis Television License
Corporation of Orlando, 17 FCC Rcd 6739, 6740 (2002) (dismissing
a claim of ``arbitrary and capricious'').
22 See cases cited in note 8, supra, and discussion of Sutro
Corporation and B&H Broadcasting Systems, Inc. at ¶ 6, supra.
23 See Forfeiture Order, at note 9.
24 Forfeiture Order, 18 FCC Rcd at 14871.
25 See id.
26 47 U.S.C. § 503(b)(2)(D).
27 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303
28 47 C.F.R. § 1.80.
29 47 U.S.C. § 405.
30 47 C.F.R. § 1.106.
31 47 U.S.C. § 504(a).
32 See 47 C.F.R. § 1.1914.