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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File Number: EB-08-KC-0326
Ozark Media, Inc.
) NAL/Acct. No.:
) File No. EB-08-KC-0326 200932560001
Owner of Antenna Structure # 1248505 FRN: 0007515901
) NOV No. V20093256zzz )
Clementine, MO )
Adopted: December 11, 2008 Released: December 15, 2008
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of two thousand dollars ($2,000) to Ozark Media, Inc.
("OMI"), owner of antenna structure bearing registration number
1248505, Clementine, Missouri, for repeated violation of Sections
17.47(a) of the Commission's Rules ("Rules"). The noted violation
involves OMI's failure to make observations of the antenna structure's
lights at least once each 24 hours to ensure the proper functioning of
the structure lights.
2. On October 9, 2008, in response to a complaint of a tower light
outage, an agent from the Commission's Kansas City Office of the
Enforcement Bureau ("Kansas City Office") determined that the
structure in question was antenna structure number 1248505, which,
according to the Antenna Structure Registration database, is owned by
OMI. An agent from the Kansas City Office contacted OMI about the
complaint and a representative from OMI stated that they were unaware
of the outage. The agent contacted the Federal Aviation Administration
("FAA") through its contractor, Lockheed Martin, to determine if a
Notice to Airmen ("NOTAM") report had been filed concerning the light
outage and, when no existing report was found, the agent filed a NOTAM
report with the FAA.
3. In two faxed statements between October 15 and 16, 2008, OMI provided
information regarding the light outages, its light monitoring
practices, and information regarding lack of logs and records for the
Tower. OMI stated that it utilizes remote monitoring to check the
status of the Tower's lights, but admitted that it had not conducted
any inspections of that system since it was constructed in September
2006. OMI stated that its employee first observed light outages in
late March 2008, at which time the FAA was notified and a NOTAM was
filed. A purchase receipt indicates OMI purchased replacement lamps
for the Tower on April 4, 2008. According to its statements, OMI
management thought that the lights for the Tower had been fixed in
early April. From April until October, OMI station operators checked
the Tower lights using the remote monitoring equipment during the day
when the lighting was not in operation and logged that the lighting
was normal based on these daytime observations. However, despite OMI's
management's belief and the operator logs, previous attempts to
schedule installation of the replacement bulbs in April 2008 were
unsuccessful, and the Tower's lights had been dark since late March
2008. After talking with the agent from the Kansas City Office, OMI
changed its monitoring practices to check the lighting status when the
lights were scheduled to be on and found the lighting in an alarm
condition on October 10 - 16, 2008. OMI further stated that prior to
October 9, 2008, they have no documentation to show exactly when light
outages occurred or when the FAA had been contacted.
4. On October 17, 2008, OMI notified the Kansas City Office that the
Tower's lighting had been repaired and that the FAA had been notified.
5. On October 31, 2008, the Commission's Kansas City Office of the
Enforcement Bureau ("Kansas City Office") issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $2,000 to OMI. OMI
submitted a response to the NAL requesting cancellation of the
forfeiture due to its inability to pay.
6. The proposed forfeiture amounts in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934, as
amended ("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, 12 FCC Rcd 17087 (1997),
recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement").
In examining OMI's response, 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
other such matters as justice may require.
7. Section 17.47(a) of the Rules states that the owner of any antenna
structure which is registered with the Commission and has been
assigned lighting specifications ... shall make an observation of the
antenna structure's lights at least once each 24 hours either visually
or by observing an automatic properly maintained indicator designed to
register any failure of such lights, to insure that all such lights
are functioning properly as required; or alternatively, shall provide
and properly maintain an automatic alarm system designed to detect any
failure of such lights and to provide indication of such failure to
the owner. The Tower is 152.1 meters above ground in height and is
required to be painted and lit. An automatic light indicator is
installed for the Tower. OMI, however, failed to inspect the automatic
light indicator since it had been installed in 2006. After OMI's
management thought that the Tower lights had been repaired sometime in
April 2008, OMI claims that its personnel observed the Tower light
indicator once every 24 hours during daytime hours when the Tower
lighting was not energized. Accordingly, the light indicator did not
register a failure in the lighting, and the personnel logged the
lighting status as normal based on the daytime observations. Despite
these loggings, lighting on the Tower was inoperable from late March
2008 until October 17, 2008. OMI does not have any records to support
exactly when the lighting became inoperable, how that observation was
made, or when the FAA had been notified. Once the FCC notified OMI of
the ongoing outages on October 9, 2008 and the station personnel began
monitoring at a time when the lighting was energized, the automatic
maintained light indicator indicated an alarm. Thus, while OMI
personnel made an observation of the Tower light indicator once every
24 hours, they failed to do so in a manner designed to insure that all
such lights were functioning properly as required, because they failed
to detect the light outage from late March 2008 until October 9, 2008.
In response to the NAL, OMI does not dispute any of the findings in
the NAL. Therefore, based on the evidence before us, we find that OMI
repeatedly violated Section 17.47(a) of the Rules by failing to
observe the Tower lighting at least once each 24 hours, at a minimum,
between May 1 and October 9, 2008 at a time that would insure the
proper operation of the antenna structure lighting.
8. In its response to the NAL, OMI requests that the forfeiture be
canceled based on its inability to pay. The Commission has determined
that, in general, an entity's gross revenues are the best indicator of
its ability to pay a forfeiture. After reviewing OMI's financial
documentation, we conclude that a reduction or cancellation of the
forfeiture is not warranted.
9. We have examined OMI's response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that OMI repeatedly
violated Section 17.47(a) of the Rules. We find no basis for
cancellation or reduction of the $2,000 forfeiture proposed for this
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Ozark Media, Inc. IS LIABLE FOR
A MONETARY FORFEITURE in the amount of $2,000 for violation of Section
17.47(a) of the Rules.
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. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. FCC Form 159 may be obtained
at http://www.fcc.gov/Forms/Form159/159.pdf. When completing the FCC
Form 159, enter the NAL/Account number in block number 23A (call
sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). Requests for full payment under an installment
plan should be sent to: Chief Financial Officer -- Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. OMI will also send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
5. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Ozark Media,
Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S: 17.47(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932560001
(Enf. Bur., Kansas City Office, released October 31, 2008).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
Antenna structures are required to be painted and lighted when they exceed
60.96 meters in height above ground. See 47 C.F.R. S: 17.21.
Antenna structure owners are required to inspect at intervals not to
exceed 3 months all automatic or mechanical control devices, indicators,
and alarm systems associated with the antenna structure lighting to insure
that such apparatus is functioning properly. See 47 C.F.R. S: 17.47(b).
Antenna structure owners are required to maintain a record of any observed
or otherwise known extinguishment or improper functioning of a structure
light and include the nature of such extinguishment, date and time the
extinguishment was observed or otherwise noted, and the date and time of
FAA notification. See 47 C.F.R. S: 17.49.
As provided by 47 U.S.C. S: 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).
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); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 17.47(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-2698
Federal Communications Commission DA 08-2698