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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Pembrook Pines Elmira, LTD EB-06-BF-008
Antenna Structure Registrant EB-06-BF-009
ASR#s1008080 and 1008079 EB-06-BF-010
Licensee of Stations EB-06-BF-011
WEHH(AM), Elmira Hts-Horseheads, NY NAL/Acct. No. 200732280001
WELM(AM), Elmira, NY FRN 0003744174
Facility IDs # 55271, 52120
Adopted: March 4, 2008 Released: March 6, 2008
By the Acting Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of fifteen thousand two hundred dollars ($15,200) to
Pembrook Pines Elmira, Ltd. ("Pembrook"), licensee of stations
WEHH(AM), Elmira Heights-Horseheads, NY, and WELM(AM), Elmira, NY, and
registrant of antenna structure numbers 1008080 and 1008079 in Elmira,
NY, for willfully and repeatedly violating Sections 17.48(a),
17.51(a), and 73.1745(a) of the Commission's Rules ("Rules") by
failing to comply with antenna structure lighting requirements,
failing to notify the FAA of an antenna structure light outage, and
failing to operate its AM stations consistent with the modes and power
authorized in the stations' licenses.
2. On January 12, 2007, the Buffalo Field Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount $19,000 to
Pembrook for failure to comply with antenna structure lighting
requirements, failure to notify the FAA of an antenna structure light
outage, and failure to operate its AM stations consistent with the
modes and power authorized in the stations' licenses. In its response
to the NAL, Pembrook does not dispute the findings in the NAL, but
requests a reduction in the forfeiture amount on two grounds. First,
Pembrook argues that assessing a forfeiture of $3,000 for failing to
notify the Federal Aviation Administration ("FAA") in addition to the
$8,000 for failing to comply with the antenna structure lighting
requirements is inconsistent with Commission precedent. Pembrook
claims that the Commission previously has not treated the failure to
notify the FAA as a separate violation and Pembrook therefore requests
that the forfeiture amount be reduced by $3,000. Second, Pembrook
requests that the overall fine be reduced by no less than $2,000 to
reflect its history of compliance with the Commission's Rules.
3. The proposed 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 ("Forfeiture
Policy Statement"). In examining Pembrook'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
4. We decline to cancel the $3000 forfeiture for Pembrook's failure to
notify the FAA of the tower light outage. The cases cited by Pembrook
in support of its position are inapposite. In those cases, we did not
make a finding that the tower owners were aware of the light outages
prior to an inspection by FCC agents. Here, there is undisputed
evidence that Pembrook was aware of the light outage as early as
September 28, 2005. We believe that it is appropriate, and consistent
with precedent, to assess an additional $3,000 forfeiture where there
is evidence that the tower owner knew of a light outage prior to the
inspection by FCC agents and failed to notify the FAA. We therefore
decline to reduce the proposed forfeiture amount by $3,000. We agree
with Pembrook, however, that a reduction is warranted based on its
history of compliance with the Commission's Rules and we reduce the
forfeiture by $3,8000.
5. Based on the information before us, having examined it according to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement, we find that reduction of the proposed forfeiture to
$15,200 is warranted.
IV. ORDERING CLAUSES
6. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Pembrook Pines Elmira,
LTD, IS LIABLE FOR A MONETARY FORFEITURE in the amount of $15,200 for
willfully and repeatedly violating Sections 17.48(a), 17.51(a), and
73.1745(a) of the Commission's Rules.
7. 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. 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.
8. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Pembrook
Pines Elmira, LTD at its address of record, and Harry F. Cole, its
counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Acting Regional Director, Northeast Region
47 C.F.R. S:S: 17.48(a), 17.51(a), and 73.1745(a).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
South Central Communications Corporation, Forfeiture Order, 18 FCC Rcd 700
(2003); MortensonBroadcasting Co., 18 FCC Rcd 9577 (2003); Wings
Communications, Inc., Forfeiture Order, 19 FCC Rcd 8855 (2004); Forever of
PA, Inc., Forfeiture Order, 2008 WL 476889 (2008); Lotus Communications
Corp., Forfeiture Order, 20 FCC Rcd 11549 (2005).
See e.g., American Radio Brokers, Inc., Forfeiture Order, 20 FCC Rcd 5165
(2005); WLTH Radio, Inc., Forfeiture Order, 19 FCC Rcd 23612 (2004),
petition for recon. granted in part denied in part, Memorandum Opinion and
Order, 21 FCC Rcd 3580 (2006) (reducing forfeiture amount based on
demonstrated inability to pay).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 17.48(a),
17.51(a), and 73.1745(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-497
Federal Communications Commission DA 08-497