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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Fun Media Group, Inc. )
File No. EB-02-AT-379
Owner of Antenna Structure #1043249 )
in NAL/Acct. No. 200332480012
Scant City, Alabama FRN No. 0007-3298-65
MEMORANDUM OPINION AND ORDER
Adopted: May 22, 2007 Released: May 24, 2007
By the Commission:
1. In this Memorandum Opinion and Order ("MO&O") we deny the Application
for Review filed on November 10, 2005, by Fun Media Group ("FMG"),
licensee of FM Station WAFN, Arab, Alabama, of the Enforcement Bureau's
("Bureau") Memorandum Opinion and Order released on October 11, 2005. In
affirming the Bureau's Forfeiture Order, the Bureau MO&O denied FMG's
petition for reconsideration of 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"). The noted violation involves FMG's
failure to clean and repaint its antenna structure to maintain good
2. To help ensure air safety, the Commission has rules regarding the
registration, construction, marking and lighting of antenna structures.
Section 17.50 of the Rules provides that antenna structures requiring
painting must be cleaned or repainted as often as necessary to maintain
good visibility. Violations of the painting and cleaning requirement are
significant because they pose a risk to air safety.
3. FMG, in addition to being the licensee of WAFN, is also the registered
owner of that station's antenna structure ("the WAFN tower"), antenna
structure registration ("ASR") number 1043249, located in Scant City,
Alabama. As indicated by the Commission's ASR database, the WAFN tower is
assigned obstruction lighting and marking requirements that include
alternate painted bands of aviation orange and white.
4. On October 29, 2002, the Bureau received a complaint from a private
airplane pilot about the visibility of the WAFN tower. On October 30,
2002, an agent from the Atlanta, Georgia, Field Office ("Atlanta Office")
inspected the WAFN tower. Using binoculars from distances of 100 feet to
one-quarter mile, the agent observed that the paint of the WAFN tower was
severely chipped and faded and that this precluded good visibility, in
violation of Section 17.50 of the Rules.
5. On December 6, 2002, the Bureau released a Notice of Apparent Liability
for Forfeiture ("NAL") proposing a $10,000 forfeiture for FMG's alleged
willful violation of Section 17.50 of the Rules. In its January 13, 2003,
response ("NAL response"), FMG sought cancellation of the forfeiture,
contending that the WAFN tower complied with the painting requirement and
that payment of the proposed forfeiture would be a financial hardship.
FMG also stated that the WAFN tower was painted on December 23, 2002. On
June 8, 2004, the Bureau released a Forfeiture Order in the amount of
$8,000 finding FMG in willful violation of Section 17.50 of the Rules. In
analyzing economic hardship claims, the Commission generally looks to a
company's gross revenues as the best indicator of its ability to pay
assessed forfeitures. The Forfeiture Order did not find a basis to reduce
the forfeiture amount based on an inability to pay, but did reduce the
amount of the forfeiture from the $10,000 proposed by the NAL to $8,000 on
the basis of FMG's history of overall compliance.
6. On July 8, 2004, FMG filed a petition for reconsideration, arguing that
the Forfeiture Order should be vacated because the WAFN tower was
compliant with the painting requirement and payment of the forfeiture
would be a financial hardship. On October 11, 2005, the Bureau issued the
Bureau MO&O, which rejected FMG's arguments and denied its petition for
reconsideration. Specifically, the Bureau MO&O found that there was
nothing in FMG's petition to warrant overturning the agent's determination
that the WAFN tower did not comply with the painting requirement -
rejecting FMG's arguments that the agent was too far from the tower to
make accurate observations, that precipitation limited visibility on the
day the agent observed the tower, that statements by third parties
contradict the agent's observations and that photographs show that the
tower was properly maintained. The Bureau MO&O also rejected FMG's
argument that the financial information submitted by FMG warrants
cancellation or reduction of the forfeiture.
7. In its Application for Review, filed November 10, 2005, FMG seeks
"reversal" of the Bureau MO&O. FMG reiterates the arguments made in its
petition for reconsideration. FMG also argues that the Bureau improperly
cited remedial measures taken after the issuance of the NAL as support for
its determination that FMG violated Section 17.50 of the Rules and that
the Bureau erroneously rejected FMG's financial hardship claim because it
failed to consider financial indicators other than FMG's gross revenues.
A. Violation of Section 17.50 of the Rules
8. As discussed below, we conclude that FMG willfully violated Section
17.50 of the Rules. FMG disputes the Bureau's finding that the agent
observed severely chipped and faded paint which reduced the visibility of
the WAFN tower and claims that the Bureau did not meet its burden of
establishing a violation of Section 17.50 of the Rules. When determining
whether an entity has violated Section 17.50 of the Rules, the Commission
routinely gives its field agents' observations deference. As indicated in
the discussion below, we find nothing in FMG's application for review to
warrant overturning the agent's determination.
9. First, FMG notes that the agent observed the WAFN tower from distances
of 100 feet to one quarter mile and questions whether "a ground inspection
from a distance as far away as a quarter mile could have permitted a
proper analysis." The agent's observations with binoculars, at distances
as close as 100 feet, followed established procedures and FMG has provided
no additional information to demonstrate that the agent's distance from
the WAFN tower affected his ability to properly observe the condition of
the tower's paint.
10. FMG also contends that precipitation limited visibility on the day the
agent observed the WAFN tower. Section 17.50 of the Rules, however, makes
no distinction on the basis of weather conditions. Moreover, precipitation
during the agent's observations would not necessarily have prevented the
agent from properly observing the condition of the WAFN tower's paint. FMG
has provided nothing to indicate that precipitation undermined the agent's
ability to determine whether the WAFN tower's painting complied with
Section 17.50 of the Rules on October 30, 2002.
11. Next, FMG contends that statements by "independent third parties" John
Hain and Robert Murphy contradict the agent's observations. We disagree.
As noted in the Bureau MO&O, neither statement specifically addresses the
condition of the WAFN tower's paint on the date of the agent's inspection,
October 30, 2002. Mr. Hain's statement, dated January 10, 2003, asserts
that he visited the WAFN tower sometime (date unspecified) during the six
months prior to the date of his statement (January 10, 2003), and found
that it was "painted orange white and did not show any rust" but provides
no information as to the condition of the WAFN tower's paint on October
30, 2002. Mr. Murphy's statement asserts that he has "never had a problem
seeing the towers east of the City of Arab, ... [that] they are depicted
on the Atlanta Sectional ... [and] all pilots have the correct and up to
date charts on board ...." Specifically, Mr. Murphy provides copies of
flight plans in the area of the tower's location, dated September 29,
2002, more than a month prior to the agent's observation, to support his
statement. Murphy's statement provides no information about the condition
of the tower's paint on October 30, 2002. By contrast, the pilot who filed
the complaint in this case reported that the WAFN tower was insufficiently
visible on October 29, 2002, the day before the inspection.
12. FMG also argues that photographs of the WAFN tower originally
submitted with its response to the NAL show that it was "properly
visible." According to FMG, the photographs were taken from one quarter
mile on December 9, 2002. We find that the resolution of the photographs
taken by FMG is not sufficient to demonstrate that the WAFN tower was
"properly visible." We agree with the Bureau's finding that FMG's
photographs cannot overcome the agent's observations on October 30, 2002,
from as close as 100 feet with the benefit of using binoculars.
13. Finally, FMG asserts that, in the Bureau MO&O, the Bureau cited
"subsequent remedial measures" taken after the issuance of the NAL as
support for its determination that FMG violated Section 17.50 of the Rules
before issuance of the NAL and argues that this was improper.
Specifically, FMG points to the language "as a factual matter, FMG states
that the tower was painted `in December 23, 2002,' almost two months after
the agent's observations." The quoted language simply restates FMG's
assertion that it painted the WAFN tower. We find nothing in the Bureau
MO&O that uses FMG's remedial measures to support the Bureau's
determination that FMG violated Section 17.50 of the Rules.
14. In sum, we find that FMG has provided nothing that warrants
overturning the agent's determination that the WAFN tower's painting was
not compliant with Section 17.50 of the Rules on October 30, 2002. We,
accordingly, affirm the Bureau's determination that FMG willfully violated
Section 17.50 of the Rules.
B. Inability to Pay
15. As discussed below, we conclude that reduction of the monetary
forfeiture is not warranted on the basis of inability to pay. In the
application for review, FMG again seeks a reduction of the forfeiture on
the basis of inability to pay. The Bureau found that FMG's gross revenues,
as shown by its five years of federal income tax returns, are sufficiently
large to belie its financial hardship claim. FMG claims that the Bureau
did not take into account "such other matters as justice may require," as
required by Section 503(b)(2)(E) of the Communications Act of 1934 as
amended ("Act"),and did not follow the policy set forth in PJB. In PJB,
the Commission held that "in some cases, other financial indicators, such
as net losses may also be relevant. If gross revenues are sufficiently
great, however, the mere fact that a business is operating at a loss does
not by itself mean that it cannot afford to pay a forfeiture." We note,
however, that FMG's federal income tax returns show that it had no net
losses over the five year period and, accordingly, we need not address the
question of whether net losses would justify a downward adjustment of
FMG's forfeiture. Furthermore, FMG does not specify what financial
indicators other than net losses should be considered and our examination
of FMG's financial information finds none that support FMG's position.
Accordingly, we affirm the Bureau's rejection of FMG's claim of inability
to pay, which we find unsupported by the record.
16. Conclusion. We have examined FMG's Application for Review pursuant to
the statutory factors prescribed by Section 503(b)(2)(E) of the Act and in
conjunction with The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, and Section 1.80 of the Rules. Having done so, we find no
reason to reverse the Bureau's earlier decision and, therefore, we deny
FMG's application for review and affirm the Bureau MO&O finding FMG liable
for a forfeiture in the amount of $8,000.
IV. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the
Rules, Fun Media Group's Application for Review of the Bureau's October
11, 2005, Memorandum Opinion and Order IS DENIED and the Bureau's
Memorandum Opinion and Order IS AFFIRMED.
18. 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. Payment of the forfeiture must be made by check, money
order 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
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.
19. 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, Esq., Fletcher, Heald & Hildreth, 1300
North 17^th Street, 11^th Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Application for Review filed by Fun Media Group, Inc., on November 10,
2005 ("Application for Review").
Fun Media Group, Inc., Memorandum Opinion and Order, 20 FCC Rcd 16149
(Enf. Bur. 2005) ("Bureau MO&O").
Fun Media Group, Inc., Forfeiture Order, 19 FCC Rcd 10230 (Enf. Bur.
2004) ("Forfeiture Order").
47 C.F.R. S 17.50.
See, e.g., SpectraSite Communications, Inc., Notice of Apparent Liability,
18 FCC Rcd 22799 (2003), Forfeiture Order, 19 FCC Rcd 17673 (2004).
Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process, Report and Order, 20 FCC Rcd
1073, 1084 (2004), aff'd sub nom. CTIA v. FCC, 466 F. 3d 105 (D.C. Cir.
See 47 C.F.R. S 17.21(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200332480012
(Enf. Bur. Atlanta Office, released December 6, 2002).
FMG supplemented the NAL Response on January 17, 2003, with statements by
John Hain and Robert Murphy and on April 23, 2004, with a confidential
submission of FMG's federal income tax returns for a three year period.
PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC
Rcd 2088, 2089 (1992)("PJB").
Forfeiture Order, 19 FCC Rcd at 10233.
FMG supplemented its petition for reconsideration on July 8, 2004, with a
confidential submission of federal tax returns for two additional years
accompanied by resubmission of the previously submitted federal tax
returns for the three year period.
Radio X Broadcasting Corporation, Memorandum Opinion and Order, 21 FCC
Rcd 12217, 12218 (2006) citing William L. Needham and Lucille Needham,
Forfeiture Order, 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
Application for Review at 5-6.
FMG acknowledges the agent's use of binoculars but not its effect on his
ability to observe the condition of the WAFN tower's paint. Application
for Review at. 5.
Id. at 5.
Id. at 6.
Bureau MO&O, 20 FCC Rcd at 16151.
Application for Review at 6-7.
Bureau MO&O, 20 FCC Rcd at 16151.
Application for Review at 7.
Application for Review at 3-4.
Bureau MO&O, 20 FCC Rcd at 16152.
47 U.S.C. S 503(b)(2)(E).
Application for Review at 3-4.
PJB, 7 FCC Rcd at 2089.
FMG's federal income tax returns also indicate substantial increases in
FMG's net worth.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S 1.80.
47 C.F.R. S 1.115(g).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission FCC 07-96
Federal Communications Commission FCC 07-96