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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Latin Broadcasting Company Owner of Antenna Structure
Number 1250803 Dallas Center, IA ) ) ) ) ) ) ) File Number:
EB-FIELDSCR-12-00003967 NAL/Acct. No.: 201332560004 FRN: 0003763976
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: March 11, 2013 Released: March 11, 2013
By the District Director, Kansas City Office, South Central Region,
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Latin Broadcasting Company (LBC), owner of antenna
structure number 1250803 (the Antenna Structure), located in Dallas
Center, Iowa, apparently willfully and repeatedly violated Section
303(q) of the Communications Act of 1934, as amended (Act)^ and
Sections 17.48(a), 17.51(a), and 17.57 of the Commission's rules
(Rules)^ by failing to (1) exhibit red obstruction lighting from
sunset to sunrise, (2) notify the Federal Aviation Administration
(FAA) of a known lighting outage, and (3) notify the Commission upon a
change in ownership information for the Antenna Structure. We conclude
that LBC is apparently liable for a forfeiture in the amount of
fourteen thousand dollars ($14,000). In addition, we direct LBC to
submit, no later than thirty (30) calendar days from the release date
of this NAL, a statement signed under penalty of perjury stating that
it now complies with the Commission's antenna structure lighting,
notification, and monitoring requirements.
2. The Antenna Structure is 152.4 meters in height above ground and is
required to be painted and lighted.^ On July 13, 2012, in response to
a complaint of a light outage, an agent from the Enforcement Bureau's
Kansas City Office (Kansas City Office) asked a deputy with the Dallas
County Sheriff's Department to observe the Antenna Structure. Later
that day, the deputy reported that, at approximately 11:30 P.M., the
top half of the Antenna Structure was not lit. Also that day, an agent
from the Kansas City Office contacted the FAA and learned that no
Notice to Airmen (NOTAM) had been issued for the Antenna Structure.^
3. On July 19, 2012, an agent from the Kansas City Office inspected the
Antenna Structure and observed that the top beacon and top set of side
lamps on the Antenna Structure were not lit after sunset. On July 20,
2012, the agent met with the general manager of LBC to discuss the
Antenna Structure. Although the Antenna Structure Registration (ASR)
database listed Perry Broadcasting Company as the owner of the Antenna
Structure, the general manager stated that it was owned by LBC.
Neither the general manager, nor LBC's engineer, who was consulted via
telephone, was aware of any light outages on the Antenna Structure,
and neither knew who was responsible for observing the Antenna
Structure lights. Both agreed, however, that the Antenna Structure
lights were not monitored by an automatic alarm system. The general
manager thought that the lights were monitored at least once a week,
while the engineer stated the lights were observed once daily.
4. On July 24, 2012, the Kansas City Office issued a Letter of Inquiry
(LOI) to LBC.^ In its LOI Response, LBC stated that it acquired the
Antenna Structure from Perry Broadcasting Company in December 2008,
and that its attorney "has been contacted to update the registration
and contact information."^ LBC also claimed that its operations
manager made daily observations of the Antenna Structure lights at
approximately 11:00 P.M. from January 1, 2012 through July 20, 2012
and provided an initialed daily observation log for July 1 through
July 20, 2012 as part of its LOI Response.^ However, LBC's LOI
Response, contained several inconsistencies regarding the Antenna
Structure's lights. LBC stated that the "tower lighting system was
last known to be operational on July 7, 2012 at or around 11 pm"^
based on visual observations by the operations manager, but in the
detailed observation information, the operations manager wrote that
the lights were "ok" for all days between July 1 and July 20, 2012,
except one, July 10, 2012.^ For July 10, 2012, the operations manager
wrote "Light out ok."^ LBC also stated that "no outages have been
reported in the logs from 1/1/12 to 7/20/12."^ LBC claimed that on
July 10, 2012, the operations manager "attempted to report the outage
by filing a NOTAM with the FAA. However, he misunderstood the English
prompts and did not properly file the NOTAM."^ Finally, LBC stated
that the lighting was repaired on July 27, 2012, but malfunctioned
again on August 3, 2012.^ LBC stated that the lighting will be
repaired again by August 18, 2012, that its operations manager is
currently making daily observations of the Antenna Structure, and that
it is in the process of installing an automated alarm system.^
5. 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
A. Failure to Exhibit Required Obstruction Lighting on the Antenna
Structure and Notify the FAA of the Lighting Outage
6. 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 states that "[a]ll
red obstruction lighting shall be exhibited from sunset until 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."^
Section 17.48(a) of the Rules states that owners of antenna structures
"shall report immediately by telephone or telegraph to the nearest
Flight Service Station or office of the Federal Aviation
Administration any observed or otherwise known extinguishment or
improper functioning of any top steady burning light or any flashing
obstruction light, regardless of its position on the antenna
structure, not corrected within 30 minutes . . . ."^
7. The evidence in this case is sufficient to establish that LBC violated
Section 303(q) of the Act and Sections 17.48(a) and 17.51(a) of the
Rules. LBC admits that a lighting outage on the Antenna Structure
occurred on July 10, 2012. On July 13 and July 19, 2012, a deputy with
the local sheriff's department and an agent from the Kansas City
Office, respectively, observed that the top half of the Antenna
Structure was not lit after sunset. LBC admits that it failed to
notify the FAA of the lighting outage on the Antenna Structure,^ and
an agent confirmed that fact on July 13, 2012. Based on the evidence
before us, we find that LBC apparently willfully and repeatedly
violated Section 303(q) of the Act and Sections 17.51(a), and 17.48(a)
of the Rules by failing to (1) exhibit all required red obstruction
lighting from sunset to sunrise on the Antenna Structure, and (2)
report the light outage to the FAA.
A. Failure to Update Ownership Information for the Antenna Structure
8. Section 17.57 of the Rules requires owners of registered antenna
structures to immediately notify the Commission, using FCC Form 854,
upon any change in structure height or
change in ownership information.^ LBC stated that it acquired the
Antenna Structure in December 2008. LBC did not file the required FCC
Form 854 to update the Antenna Structure's ownership until August 20,
2012.^ Based on the evidence before us, we find that LBC apparently
willfully and repeatedly violated Section 17.57 of the Rules by
failing to notify the Commission of a change in ownership for the
A. Proposed Forfeiture Amount and Reporting Requirement
9. 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 marking is $10,000 and for failing to
file required forms or information is $3,000.^ 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.^ Maintaining current ownership
contact information in the ASR database is particularly important,
because it enables the Commission and individuals to notify the
structure owner promptly in the event of a lighting failure or other
malfunction. Because LBC failed to notify the Commission regarding the
change in ownership for over three and a half years, we find this
violation particularly egregious and warranting an upward adjustment
of $1,000.^ Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that LBC is apparently liable for a total forfeiture in the amount
of $14,000, consisting of the following: $10,000 for the antenna
structure lighting and notification violations and $4,000 for the
10. We further order LBC to submit a written statement, pursuant to
Section 1.16 of the Rules,^ signed under penalty of perjury by an
officer or director of LBC, stating that the lights on the Antenna
Structure have been restored, including the date of restoration. LBC
shall also certify that it will notify the FAA to ensure a NOTAM
remains in place until the Antenna Structure lights are restored. In
addition, LBC shall state that it installed the automatic alarm
system, including the date of installation, or otherwise continues to
comply with the Section 17.47 monitoring requirements. This statement
must be provided to the Kansas City Office at the address listed in
paragraph 13 within thirty (30) calendar days of the release date of
IV. ORDERING CLAUSES
11. 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, Latin Broadcasting
Company is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of fourteen thousand dollars ($14,000) for violations
of Section 303(q) of the Act and Sections 17.48(a), 17.51(a), and
17.57 of the Commission's rules.^
12. 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 and Order,
Latin Broadcasting Company SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
13. IT IS FURTHER ORDERED that Latin Broadcasting Company SHALL SUBMIT a
written statement, as described in paragraph 10, within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central Region,
Kansas City Office, 520 N.E. Colbern Rd., 2nd Floor, Lees Summit, MO
64086-4711. Latin Broadcasting Company shall also e-mail the written
statement to SCR-Response@fcc.gov.
14. 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. Latin Broadcasting Company shall also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov. 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.
15. 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.
16. 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 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Kansas City Office, 520 N.E. Colbern Rd., 2nd Floor,
Lees Summit, MO 64086-4711, and include the NAL/Acct. No. referenced
in the caption. Latin Broadcasting Company also shall e-mail the
written response to SCR-Response@fcc.gov.
17. 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
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail to Latin Broadcasting Company
at 301 Ashworth Rd., West Des Moines, IA 50265.
FEDERAL COMMUNICATIONS COMMISSION
Ronald D. Ramage
Kansas City Office
South Central Region
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. SS 17.48(a), 17.51(a), 17.57.
^ See Antenna Structure Registration database for antenna structure number
1250803. See also 47 C.F.R. S 17.21 (requiring antenna structures more
than 60.96 meters in height above ground to be painted and lighted).
^ See 47 C.F.R. S 17.48 (requiring tower owners to notify the FAA
immediately of any known outages of tower lighting lasting more than 30
minutes). The agent informed the FAA of the lighting outage and the FAA
issued a NOTAM for the Antenna Structure on July 13, 2012.
^ Letter from Ronald D. Ramage, District Director, Kansas City Office,
Enforcement Bureau, to Latin Broadcasting Company (July 24, 2012) (on file
^ Letter from Catalina Barreto, General Manager, Latin Broadcasting
Company, to Kansas City Office, Enforcement Bureau at 4 (Aug. 14, 2012)
(on file in EB-FIELDSCR-12-00003248) (LOI Response).
^ LOI Response at 1.
^ Id. at 5.
^ Id. at 1.
^ Id. at 3.
^ Id. at 7.
^ Id. at 6.
^ Id. at 7.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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 act
(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 (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
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. S 17.51(a).
^ 47 C.F.R. S 17.47(a).
^ 47 C.F.R. S 17.48(a).
^ Although LBC claimed it attempted to notify the FAA of the outage on
July 10, 2012, we do not find such efforts worthy of reduction or
cancellation of the proposed forfeiture. LBC stated its operations manager
mistakenly thought he had notified the FAA. However, we do not find this
assumption reasonable. Upon calling the telephone number listed by LBC,
the caller must speak or enter the two letter abbreviation for the state,
at which point, the caller is routed to a live operator. The caller then
provides the detailed information about the outage to the operator. As the
operations manager never reached a live operator, he was provided no
opportunity to enter the antenna structure number or coordinates of the
antenna structure. Without providing that basic information, we find it
unreasonable for LBC to assume that the FAA was properly notified of the
^ 47 C.F.R. S 17.57.
^ See Antenna Structure Registration database for antenna structure number
^ 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, e.g., Quinn Broadcasting, Inc., Notice of Apparent Liability for
Forfeiture and Order, 27 FCC Rcd 5787 (Enf. Bur. 2012) (proposing $6,000
forfeiture for failing to update ASR ownership information for over eight
^ 47 C.F.R. S 1.16.
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.48(a), 17.51(a), 17.57.
^ 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. SS 1.16, 1.80(f)(3).
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Federal Communications Commission DA 13-353
Federal Communications Commission DA 13-353