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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
KAGM-FM Joint Venture File No.: EB-FIELDWR-12-00001024 NAL/Acct.
) No.: 201232800008
Owner of Antenna
Structure No. 1231632 ) FRN: 0008899247
Strasburg, CO )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 19, 2012 Released: September 20, 2012
By the District Director, Denver Office, Western Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that KAGM-FM Joint Venture (KJV), owner of antenna structure number
1231632 located by Strasburg, Colorado (the Antenna Structure),
apparently willfully and repeatedly violated Section 303(q) of the
Communications Act of 1934, as amended (Act) and Sections 17.47(a) and
17.51(a) of the Commission's rules (Rules) by failing to (1) monitor
the Antenna Structure lighting on a daily basis, and (2) exhibit any
obstruction lighting on the Antenna Structure after sunset. We
conclude that KJV is apparently liable for a forfeiture in the amount
of fifteen thousand dollars ($15,000).
2. On the night of February 27, 2012, an agent from the Enforcement
Bureau's Denver Office (Denver Office) inspected the Antenna Structure
and observed that all of the lights on the Antenna Structure were
extinguished. The agent contacted KJV's Managing Partner, who stated
that KJV was not aware of the extinguishment.
3. On April 13, 2012, the Denver Office issued a letter of inquiry (LOI)
to KJV. In its reply, KJV acknowledged that it owned the Antenna
Structure and admitted that it was not aware of the Antenna
Structure's lighting extinguishment until contacted by the Denver
Office agent on the evening of February 27, 2012. KJV claimed that an
administrative error resulted in non-payment of the electric bill, and
that the power to the Antenna Structure was consequently disconnected
on November 9, 2011, resulting in the extinguishment of the Antenna
Structure's lighting. KJV also stated that the power was restored to
the Antenna Structure on March 5, 2012, and that they had instituted a
daily monitoring procedure to observe the lights on the Antenna
4. Section 503(b) of the Act, provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
A. Failure to Exhibit Required Obstruction Lighting on the Antenna
Structure and Failure to Monitor Antenna Structure Lighting
5. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Section 17.51(a) of the Rules requires all red
obstruction lighting to be exhibited from sunset to sunrise unless
otherwise specified. Section 17.47(a) of the Rules states that owners
of antenna structures "(1) shall make an observation of the antenna
structure's lights at least once each 24 hours either visually . . .
to insure that all such lights are functioning properly as required;
or alternatively (2) 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 . . . ."
6. The Antenna Structure is 95 meters above ground in overall height and
is required to be painted and lit. On the night of February 27, 2012,
an agent from the Denver Office observed that all of the lights on the
Antenna Structure were extinguished. According to KJV, the light
outage occurred when the power to the Antenna Structure was
disconnected on November 9, 2011, due to non-payment of its electric
bills. KJV also stated that it was not aware of the light outage and
consequently did not report the outage to the FAA until after the
Denver Office agent notified KJV of the extinguishment on February 27,
2012. However, had KJV been observing the Antenna Structure's lights
as required by the Commission's rules, it would have known of the
extinguishment. Moreover, KJV should have known that the lights on the
Antenna Structure were extinguished when the power to the Antenna
Structure was disconnected. KJV's lack of knowledge of the
extinguishment underscores its failure to monitor the structure for
outages. Thus, based on the evidence before us, we find that KJV
apparently willfully and repeatedly violated Section 303(q) of the Act
and Sections 17.47(a) and 17.51(a) of the Rules by failing to (1)
monitor the Antenna Structure lighting on a daily basis, and (2)
exhibit required red obstruction lighting on the Antenna Structure
A. Proposed Forfeiture Amount
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to comply
with prescribed lighting and/or marking is $10,000. In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(E) of the Act, which
include the nature, circumstances, extent, and gravity of the
violations, 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. KJV stopped paying the electric
bills for the Antenna Structure resulting in the extinguishment of the
lights on the Antenna Structure. KJV's lack of knowledge concerning
the light outage on the Antenna Structure shows its failure to engage
in daily monitoring of the structure. KJV's failure to take any action
to correct the light outage or notify the FAA of the extinguishment
until after the Denver agent notified KJV of the extinguishment
renders KJV's actions egregious. Given the duration of the
extinguishment and the potential public safety hazard caused by such
an outage, we find that KJV's actions warrant an upward adjustment to
the base forfeiture of $5,000. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that KJV is apparently liable for a total
forfeiture in the amount of $15,000.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, KAGM-FM Joint Venture
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of Section
303(q) of the Act and Sections 17.47(a) and 17.51(a) of the
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, KAGM-FM
Joint Venture SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
10. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. KAGM-FM Joint Venture shall send electronic
notification of payment to WR-Response@fcc.gov on the date said
payment is made. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must be submitted. When completing the
FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
11. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
12. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Denver Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood, CO
80226, and include the NAL/Acct. No. referenced in the caption.
KAGM-FM Joint Venture shall also email the written response to
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and First Class Mail, to KAGM-FM Joint Venture, 1644 Omni
Blvd., Mount Pleasant, SC 29466.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
47 U.S.C. S: 303(q).
47 C.F.R. S:S: 17.47(a), 17.51(a).
On February 27, 2012, the agent contacted the Federal Aviation
Administration (FAA) and learned that the FAA had not been notified of a
light outage on the Antenna Structure and that a Notice to Airmen (NOTAM)
had not been issued for the Antenna Structure. See 47 C.F.R. S: 17.48
(requiring owners of registered antenna structures that have been assigned
lighting specifications to report immediately to the FAA any observed or
otherwise known extinguishment of any flashing obstruction light not
corrected within 30 minutes). The FAA issued the initial NOTAM for the
Antenna Structure that night, after being contacted by the Denver agent.
See Letter of Inquiry from Nikki P. Shears, District Director, Denver
Office, Western Region, FCC Enforcement Bureau, to KAGM-FM Joint Venture
(Apr. 13, 2012) (on file in EB-FIELDWR-12-00001024).
See Letter from Andrew Guest, General Partner, KAGM-FM Joint Venture, to
Nikki P. Shears, District Director, Denver Office, Western Region, FCC
Enforcement Bureau (May 4, 2012) (on file in EB-FIELDWR-12-00001024) (LOI
Id. at 1.
Id. at 1-2.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the [A]ct
(e.g., section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (1991),
recons. denied, 7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at 1362,
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
47 C.F.R. S: 17.47(a).
See Antenna Structure Registration database for antenna structure number
1231632. See also 47 C.F.R. S: 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted). See also FAA Study
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See Telava Wireless, Inc., Notice of Apparent Liability for Forfeiture, 27
FCC Rcd 3239 (Enf. Bur. 2012) (forfeiture of $15,000 proposed when antenna
structure registrant takes no action to correct antenna structure light
outage, until notified by an Enforcement Bureau field office, despite
receiving electric bills showing no electricity being consumed at the site
by the structure).
47 U.S.C. S:S: 303(q), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 17.47(a), 17.51(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-1511
Federal Communications Commission DA 12-1511