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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-AT-077
Cumulus Licensing Corp. ) NAL/Acct. No. 200332480025
Owner of Antenna Structures )
#1052722 and #1052724 ) FRN: 0005-2603-77
near Savannah, Georgia )
MEMORANDUM OPINION AND ORDER
Adopted: January 30, 2006 Released: February 2,
By the Chief, Enforcement Bureau:
1. By this Memorandum Opinion and Order, we deny a
Petition for Reconsideration filed on January 27, 2005 by Cumulus
Licensing Corporation (``Cumulus''), owner of two antenna
structures, registration numbers 1052722 and 1052724, in
Savannah, Georgia, of the Enforcement Bureau's Forfeiture Order1
released December 28, 2004, assessing a forfeiture amount of ten
thousand dollars ($10,000) for willful and repeated violation of
Section 17.50 of the Commission's Rules (``Rules'').2 The noted
violation involves the failure of Cumulus to clean and repaint
its antenna structures to maintain good visibility.
2. On August 22, 2001, an agent from the Atlanta Office
inspected the subject antenna structures associated with AM radio
station WBMQ, Savannah, Georgia, and found that the paint on the
antenna structures was badly faded and peeling, greatly reducing
the structures' visibility. On September 19, 2001, the Atlanta
Office issued a Notice of Violation (``NOV'') to Cumulus, noting,
among other things, a violation of Section 17.50 of the Rules.
On October 15, 2001, Cumulus responded that it was acquiring bids
to repaint the structures and anticipated that the towers would
be painted by December 31, 2001.
3. On October 18, 2001, the Atlanta Office issued a
Continuation of Notice of Violation requesting a status report on
the antenna structure repainting. On January 9, 2002, Cumulus
replied that it would decide no later than January 31, 2002,
whether to repaint or replace the towers. On February 4, 2002,
Cumulus submitted an additional reply stating that it planned to
replace the structures by June or July of 2002. On July 31,
2002, Cumulus submitted another reply stating that it planned to
relocate the operations for WBMQ to another existing structure in
Savannah, Georgia, after which it would dismantle the current
4. On March 18 and 19, 2003, an agent of the Atlanta
Office again inspected the antenna towers, determined that the
structures remained unpainted and that the orange and white
aviation bands were not distinguishable at a distance of one-half
mile. On May 27, 2003, the Atlanta Office issued a Notice of
Apparent Liability for Forfeiture3 for apparent willful4 and
repeated5 violation of Section 17.50 of the Rules. In its August
1, 2003 Response to the NAL (``Response''), Cumulus¾which stated
that it operated 260 stations across the country¾did not contest
the violation. Rather, Cumulus sought a reduction in the
proposed forfeiture amount because it acted promptly to cure the
violation once it received Commission notice and because of an
overall history of compliance.
5. On December 28, 2004, the Assistant Chief, Enforcement
Bureau, released a Forfeiture Order finding that Cumulus
willfully and repeatedly violated Section 17.50 of the Rules, and
issued a monetary forfeiture in the amount of $10,000.6 The
Enforcement Bureau held that curative measures initiated in
response to Commission notification do not nullify or mitigate
prior forfeitures or violations. Moreover, the Enforcement
Bureau denied the Cumulus claim of a history of overall
compliance based on evidence of numerous violations connected
with the operation and maintenance of its other stations.7
6. On January 27, 2005, Cumulus filed a Petition for
Reconsideration of the Forfeiture Order. Cumulus did not dispute
the Enforcement Bureau's findings, but rather, sought a reduction
in the forfeiture amount due to the ``exceptional circumstances''
it continued to encounter in attempting to comply with the Rules.
Cumulus explained that the absence of a central authority to
specify the requirements for dismantling the subject towers had
resulted in a series of delays. Cumulus averred that often, once
it met the specific requirements of one agency, ``another agency
impose[d] different and sometimes conflicting requirements.''
Cumulus asserted that it was ``still not legally able to
dismantle the towers,'' explaining that doing so would lead to
severe monetary penalties from other government agencies.8
Cumulus stated that although it was making ``every effort to
comply'' with the Rules, it had experienced setbacks and delays
due to approvals needed from a variety of governmental agencies
before dismantling the towers. Cumulus also discussed some of
the ``substantial progress'' it had made toward dismantling the
towers, by (1) consulting with the relevant governmental agencies
and obtaining some of the required regulatory approvals, (2)
hiring consultants to evaluate environmental and safety issues
and recommend the best approach to dismantling the towers and (3)
contracting a construction company to oversee the demolition.9
Cumulus explained that it had obtained certain environmental
agency approvals concerning protected species,10 filed
applications for approvals to dismantle the towers and would
continue to update the Commission on its progress in curing the
violation. On August 3, 2005, Cumulus informed the Enforcement
Bureau that it had completed demolition of the subject towers on
July 22, 2005.
7. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act, Section 1.80 of the
Rules, and The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines.11 In examining the Cumulus Petition for
Reconsideration, 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 any other such matters as justice may require.12
II.A. Tower Painting Violation
8. Background. Section 303(q) of the Act grants the
Commission authority to oversee antenna structure painting
requirements.13 Section 303(q) of the Act is codified in Part 17
of the Rules. 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 stressed the importance of compliance with
antenna structure rules in light of air safety concerns.14
9. Discussion. In its Petition for Reconsideration of the
Forfeiture Order, Cumulus did not dispute the Commission's
finding that the antenna structures violated Section 17.50 of the
Rules. At the time of the filing, Cumulus claimed that due to
governmental procedural impediments it was not yet able to
dismantle the towers in order to comply with the Rules, but
subsequently Cumulus has reported that the towers were
successfully demolished on July 22, 2005. Cumulus sought a
downward adjustment of the forfeiture amount due to the
``exceptional circumstances'' it faced in its attempts to cure
the Rule violation over the course of nearly four years¾namely,
navigating complex and conflicting governmental regulations and
incurring unexpected expenses. We find that the Cumulus request
for a reduction in the forfeiture amount on the basis of
``exceptional circumstances'' is flawed and is denied.
10. First, Cumulus did not take any steps to bring its
antenna towers into compliance with the Rules until after it was
notified of the painting violation by the Atlanta Office.15
Although Cumulus described the progress it made (as well as the
regulatory setbacks and delays it experienced) in complying with
the Rules, any such steps were remedial in nature. As noted in
the Forfeiture Order, the Commission has consistently found that
"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."16 Accordingly, we affirm the
finding in the Forfeiture Order, and deny the Cumulus request to
decrease the forfeiture amount, noting that this request was
previously fully discussed and satisfactorily rejected in the
11. Second, we also deny the Cumulus Petition for
Reconsideration to the extent that it seeks to carve out an
exception to the Commission's determination that remedial
measures do not mitigate a Rule violation, when circumstances
surrounding post-notice efforts rise to the level of
``exceptional circumstances.'' Cumulus asserted that the actions
taken since it was placed on notice of the tower painting
violation were complicated by conflicting governmental
regulations and expense which it contended should serve as
mitigating factors to decrease the forfeiture amount.
12. We disagree. The cost and complexity of remedial
measures¾even if they rise to the level of arguably ``exceptional
circumstances''¾are not a basis for mitigating a Rule
violation.18 We affirm the finding in the Forfeiture Order that
``Cumulus should have known of, and acted on, the lack of paint
on the towers prior to or immediately upon their purchase of the
station and associated towers.''19 Cumulus, operator of more
than 260 stations nationally, acquired the subject antenna
structures on March 26, 1998. On September 19, 2001, Cumulus
received official notice of the violation from the Commission.
Cumulus did not come into compliance with the Rules until July
22, 2005, nearly four years after receiving notice of the
violation. The proffered ``exceptional circumstances'' do not
provide mitigating circumstances which warrant a decrease of the
forfeiture amount.20 As a result of our review, we affirm the
determination of the Forfeiture Order and conclude that Cumulus
willfully and repeatedly violated Section 17.50 of the Rules and
that a $10,000 forfeiture is warranted.
III. ORDERING CLAUSES
13. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
405 of the Act21 and Section 1.106 of the Rules,22 the October
29, 2004 Petition for Reconsideration filed by Cumulus Licensing
Corporation of the Enforcement Bureau's December 28, 2004
Forfeiture Order IS DENIED.
14. IT IS ALSO ORDERED THAT, pursuant to Section
503(b)(2)(D) of the Act and Sections 0.111, 0.311 and 1.80(f)(4)
of the Rules,23 Cumulus Licensing Corporation IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for willfully and repeatedly violating Section 17.50 of
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.24
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. Requests for payment of the full amount of the
NAL under an installment plan should be sent to: Associate
Managing Director - Financial Operations, 445 12th Street, S.W.,
Room 1A625, Washington, D.C. 20554.25
16. IT IS FURTHER ORDERED THAT a copy of this Memorandum
Opinion and Order shall be sent by first class mail and certified
mail, return receipt requested, to Cumulus Licensing Corp. and
its Counsel, Mark N. Lipp, Vinson & Elkins L.L.P., 1455
Pennsylvania Ave., NW, Suite 600, Washington, D.C. 20004-1008.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
1 Cumulus Licensing Corp., 19 FCC Rcd 24815 (Enf. Bur. 2004)
2 47 C.F.R. § 17.50.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480025 (Enf. Bur., Atlanta Office, released May 27, 2003)
4 Section 312(f)(1) of the Communications Act of 1934, as amended
(``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 . . . .''
The Conference Report for Section 312(f)(1) of the Act indicates
that Congress intended to apply this definition to Section 503 of
the Act as well as Section 312 of the Act. See H.R. Rep. 97th
Cong. 2d Sess. 51 (1982); see Southern California Broadcasting
Co., 6 FCC Rcd 4387, 4388 (1991) (``Southern California
Broadcasting'') and Western Wireless Corporation, 18 FCC Rcd
10319, 10326 n.56 (2003) (``Western Wireless'').
5 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that a violation is
``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) of the Act indicates that
Congress intended to apply this definition to Section 503 of the
Act as well as Section 312 of the Act. See H.R. Rep. 97th Cong.
2d Sess. 51 (1982). See Southern California Broadcasting, 6 FCC
Rcd at 4388 and Western Wireless, 18 FCC Rcd at 10326 n.56.
6 See n.1.
7 Forfeiture Order, 19 FCC Rcd at 24818 ¶¶ 15-16.
8 Cumulus alleged that it was required to obtain authorization
from the Army Corps of Engineers prior to dismantling the towers,
and that to do so without such approval could potentially subject
Cumulus to a liability of over $100,000. Petition for
Reconsideration at 3.
9 Cumulus asserted that this process involved, among other
things, measuring the lead in the top soil prior in order to
determine the extent of the clean up after the towers were
10 Cumulus submitted a partial list of the governmental agencies
involved in the antenna tower demolition approval process: the
Environmental Protection Agency, Federal Aviation Administration,
U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers,
Georgia Department of Natural Resources and the Chatham County
Department of Building Safety & Regulatory Services.
11 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
12 47 U.S.C. § 503(b)(2)(D).
13 47 U.S.C. § 303(q).
14 See SpectraSite Communications, 18 FCC Rcd. 22799 (2002)
(stressing the importance of compliance with antenna structure
rules in light of air safety considerations); see AT&T Wireless,
17 FCC Rcd at 21870 (stressing the importance of compliance with
antenna structure rules in light of air safety considerations).
15 ``Upon being notified of the painting violation on September
19, 2001, by the FCC field office inspector, Cumulus immediately
took steps to correct the problem.'' Response at 2.
16 Forfeiture Order, 19 FCC Rcd at 24818 ¶ 15 citing AT&T
Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002); Seawest
Yacht Brokers, 9 FCC Rcd 6099 (1994).
17 Forfeiture Order, 19 FCC Rcd at 24817-18 ¶¶ 9-16.
18 Tower Properties of Florida, Inc., 18 FCC Rcd. 26094, 26096 ¶
11 (Enf. Bur. 2003) (once notified by the Commission of a tower
painting violation, subsequent unforeseen and unavoidable
circumstances which allegedly caused a delay in remedial efforts
to comply with the Rules were not deemed mitigating factors and
had no bearing on the subject forfeiture).
19 Forfeiture Order, 19 FCC Rcd at 24817 ¶ 14.
20 47 U.S.C. § 503(b)(2)(D).
21 47 U.S.C. § 405.
22 47 C.F.R. § 1.106.
23 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
24 47 U.S.C. § 504(a).
25 47 C.F.R. § 1.1914.