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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Steven A. Roy )
Personal Representative, ) File Numbers: EB-06-PL-008
Estate of Lyle Evans ) NAL/Acct. No. 200732420001
Antenna Structure Registrant ) FRN 0015223530
Antenna Structure # 1059331 )
Stephenson, Michigan )
Adopted: February 25, 2008 Released: February 27, 2008
By the Associate Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission ("FCC" or "Commission") and the Estate of
Lyle R. Evans by Steven A. Roy, its appointed Personal Representative
("the Estate"). The Consent Decree terminates the Bureau's enforcement
proceeding relating to the Estate's compliance with Section 17.51(a)
of the Commission's Rules ("Rules").
2. The Bureau and the Estate have negotiated the terms of a Consent
Decree that would resolve these matters and terminate the enforcement
proceeding. A copy of the Consent Decree is attached hereto and
incorporated by reference.
3. After reviewing the terms of the Consent Decree, we find that the
public interest would be served by adopting the Consent Decree and
terminating the enforcement proceeding.
4. Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and 503(b) of
the Act, and the authority delegated by Sections 0.111 and 0.311 of
Rules, the Consent Decree attached to this Order IS ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned enforcement proceeding
6. IT IS FURTHER ORDERED that the Estate shall make its voluntary
contribution to the United States Treasury, as specified in the
Consent Decree, by mailing a check or similar instrument payable to
the order of the Federal Communications Commission, 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.
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).
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Denise Moline, Esq., counsel for Steven A. Roy, at 358
Pines Blvd., Lake Villa, IL 60046.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
The Enforcement Bureau ("Bureau") and the Estate of Lyle R. Evans by
Steven A. Roy, its appointed Personal Representative ("the Estate"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Enforcement Bureau's investigation into
whether the Estate violated Section 303(q) of the Communications Act of
1934, as amended, ("the Act"), 47 U.S.C. S: 303(q), and Section 17.51(a)
of the Commission's Rules ("Rules"), 47 C.F.R. S: 17.51(a), by failing to
exhibit all red obstruction lighting from sunset to sunrise on antenna
structure # 1059331 in Stephenson, Michigan.
1. For the purposes of this Consent Decree, the following definitions
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Compliance Plan" means the program described in this Consent Decree
at paragraph 7.
e. "Effective Date" means the date on which the Commission releases the
f. "FAA" means Federal Aviation Administration.
g. "Investigation" means the investigation initiated by the Bureau
regarding whether Roy violated Section 303(q) of the Act and Section
17.51(a) of the Commission's rules.
h. "Estate" means the Estate of Lyle R. Evans by Steven A. Roy, its
appointed Personal Representative and his predecessors-in-interest and
i. "NAL" means Notice of Apparent Liability for Forfeiture.
j. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
k. "Parties" means the Estate and the Bureau.
l. "Rules" means the Commission's regulations found in Title 47 of the
1. Pursuant to Section 303(q) of the Act, antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Part 17 of the Rules is designed to promote air
safety, by prescribing regulations for antenna structures that
constitute or that potentially constitute "a menace to air
navigation." Section 17.51(a) of the Rules requires that all red
obstruction lighting be exhibited from sunset to sunrise unless
2. On January 25, 2007, the Bureau issued a Notice of Apparent Liability
for Forfeiture ("NAL") proposing that the Estate be held liable for a
forfeiture of ten thousand dollars ($10,000) under section
503(b)(1)(B) of the Act, and ordered the Company either to pay the
proposed forfeiture or file a written response within thirty (30) days
of the NAL release date stating why the proposed forfeiture should be
reduced or canceled.
III. TERMS OF AGREEMENT
3. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
4. Jurisdiction. The Estate agrees that the Bureau has jurisdiction over
it and the matters contained in this Consent Decree and has the
authority to enter into and adopt this Consent Decree.
5. Effective Date: Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the FCC releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other order of the
Commission or Bureau. Any violation of the Adopting Order or of the
terms of this Consent Decree shall constitute a separate violation of
a Bureau order, entitling the Bureau or Commission to exercise any
rights and remedies attendant to the enforcement of a Commission
6. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
investigation and to cancel its NAL. In consideration for the
termination of said investigation and cancellation of the NAL, the
Estate agrees to the terms, conditions, and procedures contained
herein. The Bureau further agrees that in the absence of new material
evidence, the Bureau will not use the facts developed in this
investigation through the Effective Date of the Consent Decree, or the
existence of this Consent Decree to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against the Estate concerning the matters that were the subject
of the investigation. The Bureau also agrees that it will not use the
facts developed in this investigation through the Effective Date of
this Consent Decree, or the existence of this Consent Decree, to
institute on its own motion any proceeding, formal or informal, or
take any action on its own motion against the Estate with respect to
the Estate's basic qualifications, including his character
qualifications, to hold Commission authorizations.
7. Compliance Plan. For purposes of settling the matters set forth
herein, the Estate agrees to maintain a Compliance Plan related to
future compliance with the Act, the Commission's rules, and the
Commission's orders. The Plan will include, at a minimum, the
A. At the time of execution of this Consent Decree, the Estate has
effected the repair of all tower obstruction lighting on Antenna
Structure # 1059331 in Stephenson, Michigan. The tower lights are
presently operating in compliance with the FAA requirements set forth
in the tower's FCC Antenna Structure Registration.
B. Monitoring of Tower Lighting: As part of his regular duties, and in
compliance with Section 17.47(a) of the Commission's rules, and at the
Estate's direction, the Programming Director at Station WMXG is
checking the status of the tower lights twice daily, once during
daylight hours, and once after sunset. This task will be retained as a
management duty, and is not delegated to the Station's regular staff.
The Programming Director accesses the tower lighting through an
automated monitoring system which provides meter and monitoring
readouts on the tower lighting, as well as on the output power, ERP,
and various other systems of the WMXG transmission system. The
automated system provides information whether the tower lights are in
day or night mode, and whether the lights are operating normally or
malfunctioning. The information retrieved from the automated system is
logged, and the logs are maintained as part of the Station's technical
records. In the event of any malfunction of the tower lights, the
Programming Director has instructions to immediately notify the FAA,
and thereafter to immediately arrange for repair of the tower lights.
Upon completion of repairs, the FAA is notified that the tower lights
are again operating normally.
C. Maintenance and Repair of Tower Lighting. The tower lighting and
associated automated monitoring equipment will be maintained and
checked routinely at least every three months in compliance with
Section 17.47(b) by the Licensee's Technical consultants and its Chief
Operator as part of routine tower maintenance. The Station's chief
engineer (the Chief Operator) checks the equipment at the transmitter
site every two weeks, and will inspect the automated monitoring system
each time, to be sure that the automated tower lighting reporting
system is operating normally. Those inspections will be logged, and
any repairs or maintenance performed will also be detailed.
D. Reporting to FCC. The Estate will provide a report to the FCC
regarding the tower lighting daily monitoring, and all maintenance and
repair visits, including logs and documentation, 90 days from the date
of the Consent Decree, and one year from the date of the Consent
E. The Estate hereby certifies that the foregoing plan to maintain the
Structure's tower lighting in compliance with the FAA requirements set
forth in the tower's FCC antenna structure registration will continue
indefinitely in the future.
Compliance Reports. The Estate will file compliance reports with the
Commission ninety days after the Effective Date and twelve months after
the Effective Date. Each compliance report shall include a compliance
certificate from the Estate, stating that the Estate has established
operating procedures intended to ensure compliance with this Consent
Decree, together with an accompanying statement explaining the basis for
the officer's compliance certification. All compliance reports shall be
submitted to Sharon Webber, Regional Counsel, Northeast Region, Federal
Communications Commission, One Oxford Valley Office Building, Room 404,
2300 East Lincoln Highway, Langhorne, PA 19047.
8. Voluntary Contribution. The Estate agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
five thousand dollars ($5000) within ten (10) days after the Effective
Date of the Adopting Order. The payment 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 in the caption to the Adopting Order. 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. 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).
9. Waivers. the Estate waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Order adopting this Consent Decree, provided the Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. The Estate shall retain the right to
challenge Commission interpretation of the Consent Decree or any terms
contained herein. If either Party (or the United States on behalf of
the Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither the Estate nor the Commission shall contest
the validity of the Consent Decree or the Adopting Order, and the
Estate shall waive any statutory right to a trial de novo. The Estate
hereby agrees to waive any claims it may otherwise have under the
Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501
et seq., relating to the matters addressed in this Consent Decree.
10. Invalidation. In the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, it shall become null
and void and may not be used in any manner in any legal proceeding.
11. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent Decree
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly.
12. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which the Estate does not expressly
consent) that provision will be superseded by such Commission rule or
13. Successors and Assigns. The Estate agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
14. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's rules and orders.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
18. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
George R. Dillon
Steven A. Roy
Personal Representative for the Estate of Lyle R. Evans
47 C.F.R. S: 17.51(a).
47 U.S.C. S:S: 154(i) and 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 303(q); 47 C.F.R 17.51(a).
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732420001
(Enf. Bur., St. Paul Office, released January 25, 2007).
Federal Communications Commission DA 08-455
Federal Communications Commission DA 08-455