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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Ely Radio, LLC Former Owner of Antenna Structure Number
1005854, Winnemucca, NV ) ) ) ) ) ) ) File Number: EB-08-SF-0039 NAL/Acct.
No.: 200932960001 FRN: 0014848899
ORDER ON REVIEW
Adopted: April 24, 2013 Released: April 25, 2013
By the Commission: Commissioner McDowell not participating.
1. In this Order on Review, we deny the Application for Review^ filed by
Ely Radio, LLC (Ely), a broadcast licensee and former owner of antenna
structure number 1005854 in Winnemucca, Nevada.^ Ely seeks Commission
review of the Memorandum Opinion and Order (MO&O) issued by the
Enforcement Bureau (Bureau) on July 11, 2012, in this proceeding.^ In
the MO&O, the Bureau denied Ely's petition for reconsideration of an
eleven thousand dollar ($11,000) forfeiture for violation of Section
303(q) of the Communications Act of 1934, as amended (Act),^ and
certain provisions under Part 17 of the Commission's rules (Rules).^
The noted violations concerned Ely's failure to ensure that the
antenna structure exhibited the required obstruction lighting and that
the antenna structure's registration with the Commission was
appropriately updated to reflect a change in ownership.^ For the
reasons discussed below, we deny Ely's Application for Review, affirm
the Bureau's MO&O, and order Ely to pay the $11,000 monetary
2. On October 31, 2008, the Enforcement Bureau's San Francisco Office
issued an NAL in the amount of $13,000 to Ely.^ In the NAL, the San
Francisco Office found that Ely apparently repeatedly violated Section
303(q) of the Act and Section 17.51(a) of the Rules, by failing to
exhibit the antenna structure's red obstruction lighting from sunset
to sunrise; and violated Section 17.47(a) of the Rules, by failing to
make observations of the antenna structure's lights at least once each
24 hours.^ The San Francisco Office found that Ely's failure to make
the required observations of the lighting on the antenna structure
resulted in its failure to notify the nearest Flight Service Station
of the Federal Aviation Administration of the outage of the flashing
obstruction lights, a significant public safety concern and a
violation of Section 17.48 of the Rules.^ The San Francisco Office
also found that Ely apparently repeatedly failed to immediately notify
the Commission of a change in ownership information for antenna
structure number 1005854 after it acquired Station KWNA(AM), a
violation of Section 17.57.^
3. Although Ely denied ownership of, and responsibility for, the antenna
structure during the investigation, the preponderance of the evidence
established that Ely was the owner of the structure.^ As part of the
record evidence, the San Francisco Office sent a Letter of Inquiry
(LOI) not only to Ely, but also to Sheen Broadcasting Company (Sheen),
the former licensee of Station KWNA(AM).^ Sheen responded to the LOI,
and confirmed that it was no longer a Commission licensee; that,
pursuant to the Asset Purchase Agreement for the sale of Station
KWNA(AM) to Ely in August 2006, it assigned the Station and sold all
the equipment used to operate the Station, including the antenna
structure; and that the only relationship it continues to have with
Ely concerns the lease of a building and land on which the Station and
structure are located.^
4. On December 31, 2008, Ely filed a response to the NAL, contending
that, based on its interpretation of the Asset Purchase Agreement, it
was not the owner of antenna structure 1005854 and, therefore, could
not have committed any of violations.^ The Enforcement Bureau's
Western Region fully considered Ely's response and held, in the
Forfeiture Order, that the NAL properly concluded, based on the
preponderance of the evidence, that Ely was the owner of the antenna
structure.^ In addition, the Western Region held that, independent of
the Asset Purchase Agreement, Ely was nevertheless responsible for
ensuring that the structure complied with the antenna lighting and
other requirements based on undisputed record evidence that Ely was
the only licensee using the antenna structure; that Ely had access to
and control over the lighting on the antenna structure; and that it
was Ely's personnel (by their own admission) that improperly
extinguished the antenna lights that resulted in the violation of the
Act and the Rules.^ The Western Region also determined that the
initially proposed $13,000 forfeiture in the NAL warranted some
reduction based on Ely's history of compliance with the Rules prior to
the investigation in this case.^ As such, the proposed forfeiture was
reduced to $11,000.^
5. On November 30, 2009, Ely filed a petition for reconsideration
(Petition) of the Forfeiture Order, urging the Bureau to reverse its
determination that Ely was responsible for the violations of the
Commission's tower rules as the owner of the subject antenna
structure.^ In its Petition, Ely did not dispute the Bureau's factual
findings, but argued that the Bureau's understanding of the Asset
Purchase Agreement^ was contrary to Nevada state law, based on a legal
opinion letter from a Nevada attorney retained by Ely.^ The Bureau,
however, declined to adjudicate the proper interpretation of the Asset
Purchase Agreement between Ely and Sheen under Nevada law.^ The Bureau
noted that the proper body to interpret the relevant provision at
issue was a court of competent jurisdiction in the State of Nevada,
given the continuing disagreement between Ely and Sheen concerning
certain provisions of the Asset Purchase Agreement.^ The Bureau,
instead, affirmed the Forfeiture Order based on the available record.
The Bureau held: "Based on the overall record in this case, we find
that the preponderance of the evidence supports the Forfeiture Order's
conclusion that Ely was (and is) the owner of the subject antenna
structure for purposes of the relevant Part 17 Rules and, therefore,
remains liable for the violations."^ Moreover, the Bureau also found
that the Commission's rules and policies nevertheless obligated Ely,
as the licensee using the antenna structure in question and based on
the facts and circumstances of this case, to comply with the relevant
Part 17 requirements, thereby rendering the question of whether Ely
was the legal owner of the antenna structure under Nevada law
inconsequential for purposes of finding a violation of the
Commission's rules.^ Thereafter, Ely filed an Application for Review
of the Bureau's MO&O which we discuss below.
6. Pursuant to Section 1.115(b)(2) of the Commission's rules, to obtain
relief through an application for review, an aggrieved party must
specify, inter alia, how an action taken pursuant to delegated
authority conflicts with a relevant "statute, regulation, case
precedent, or established Commission policy," or "involves a question
of law or policy which has not previously been resolved by the
Commission."^ In its Application for Review, Ely does not dispute the
Bureau's factual findings in this case, but argues that the Bureau
erred in ruling that Ely is the owner of the subject antenna structure
by disregarding the "expert opinion" of a Nevada real estate attorney,
who opined that Sheen remains the owner of the antenna structure
because--based on the Nevada attorney's interpretation of Nevada
law--a fixture such as a tower is part of the real estate unless
otherwise provided for in the purchase or sale agreement.^ Ely further
states that the Bureau, in so ruling, effectively "amended" Nevada
real estate law, which the Bureau did not have authority to do; and
that even if the Bureau had such authority, it failed to follow the
notice and comment procedures under the Administrative Procedure Act.^
7. We find no merit in Ely's argument. The Bureau made clear in the MO&O
that it was not adjudicating the controversy based on Nevada law, but
based on the case record compiled before the FCC, including all
filings made by Ely, which Ely does not question. Therefore, Ely's
suggestion that the Bureau inappropriately "amended" Nevada law is
misplaced. In the MO&O, the Bureau held:
We find that the opinion letter from [the Nevada attorney] is insufficient
to warrant reconsideration. We are unable to evaluate the legal
sufficiency of the letter because the letter does not provide the language
or citations to the specific statutes and case law that counsel claims to
have relied upon in rendering his legal opinion. In any event, with
respect to the proper interpretation of the Asset Purchase Agreement, the
Bureau will not adjudicate its proper interpretation under Nevada law. The
interpretation of the referenced provision is most appropriately addressed
by a court of competent jurisdiction, which Ely has not presented. At
best, it appears that Ely and Sheen may have a continuing disagreement
with respect to the contract and their respective understandings since its
execution in August 2006. However, any resolution concerning a failure to
perform pursuant to a private contractual arrangement, including
appropriate remedies or damages, are matters to be resolved in a local
forum. Here, the Bureau must render its decision based on the available
8. We find nothing legally incorrect or inappropriate about the Bureau's
decision. This case involves an unlit antenna structure that presented
a potentially serious hazard to aviation. The Bureau has a regulatory
responsibility to enforce the Commission's rules to prevent such
situations and to take appropriate action where it finds violations.
Here, the Bureau was required to determine the party responsible for
ensuring that the antenna structure in question complied with all
relevant Commission rules. In making that determination, the Bureau
was not required to follow the conclusory and unsupported
interpretation of Nevada law favored by Ely's Nevada counsel. Rather,
the Bureau must conduct its own analysis of the evidence presented. In
this case, based on the available record evidence and the Commission's
policies and regulations, the Bureau reasonably determined that Ely
was the antenna structure owner^ and, therefore, was responsible for
the violations at issue here.^
9. Moreover, Ely does not dispute that even if it is not the legal owner
of the antenna structure, the Commission's rules and policies
nonetheless obligate it, as licensee, to comply with the relevant Part
17 requirements.^ On this point, the evidence is clear that: (1) Ely
was the only licensee using the antenna structure; (2) Ely had access
to and control over the lighting on the antenna structure; (3) it was
Ely's station personnel (by their own admission) that improperly
extinguished the antenna lights that resulted in the violation of the
Act and the Rules; and (4) Ely knew that Sheen remained adamant that
the Asset Purchase Agreement included the sale of the antenna
structure and had not been involved in the maintenance of the antenna
structure since the sale of the station.^ Based on the foregoing, we
affirm the Bureau's MO&O and, therefore, find Ely liable for a
monetary forfeiture in the amount of $11,000 for repeatedly violating
Section 303(q) of the Act and the relevant Part 17 Rules.^
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 1.115 of the
Commission's Rules,^ the Application for Review filed by Ely Radio,
LLC, IS DENIED and the Bureau's Memorandum Opinion and Order IS
11. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311, and 1.80(f)(4) of the Rules, Ely Radio, LLC, IS
LIABLE FOR A MONETARY FORFEITURE in the amount of eleven thousand
dollars ($11,000) for violations of Section 303(q) of the Act and
Sections 17.47(a), 17.48, 17.51(a), and 17.57 of the Rules.^
12. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules immediately and no later than thirty (30)
calendar days after the release date of this Order on Review.^ On
March 11, 2013, the United States filed a complaint in federal
district court against Ely Radio, LLC, for recovery of the $11,000
monetary forfeiture penalty, in U.S. v. Ely Radio, LLC, Civ. No.
13-00405 (D. Nev.). Pending court approval of a request from the
United States, the court case will be held in abeyance until
resolution of this administrative proceeding. If timely payment of the
forfeiture is received, the government will dismiss the district court
case. Ely Radio, LLC, shall send electronic notification of payment to
WR-Response@fcc.gov and to Carlos A. Gonzalez, Assistant United States
Attorney, at firstname.lastname@example.org, on the date said payment is
13. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and
FRN referenced above. 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.
14. IT IS FURTHER ORDERED that this Order on Review shall be sent by both
First Class Mail and Certified Mail, Return Receipt Requested, to Ely
Radio, LLC, 5010 Spencer, Las Vegas, Nevada, 89119.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
^ See infra note 7.
^ See Appeal, filed by Ely Radio, LLC (Aug 1, 2012) (on file in
EB-08-SF-0039) (Application for Review). Although Ely entitled its
document as an "Appeal," we are referring to the document in this
proceeding as an "Application for Review," consistent with Commission
rules. See 47 C.F.R. S 1.115.
^ For purposes of this proceeding, use of the term "antenna structure"
refers to antenna structure number 1005854 in Winnemucca, Nevada. Also, we
note that Ely Radio, LLC is the licensee of AM radio station KELY in Ely,
^ Ely Radio, LLC, Memorandum Opinion & Order, 27 FCC Rcd 7608 (Enf. Bur.
2012) (MO&O), aff'g, Forfeiture Order, 24 FCC Rcd 13258 (Enf. Bur.,
Western Region 2009) (Forfeiture Order), Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200932960001 (Enf. Bur., Western Region, San
Francisco District Office rel. Oct. 31, 2008) (NAL).
^ 47 U.S.C. S 303(q).
^ See 47 C.F.R. SS 17.47(a), 17.48, 17.51(a), 17.57.
^ At the time of the violation, Ely was the licensee of Station KWNA(AM),
Winnemucca, Nevada, which used the antenna structure to broadcast its
signal and was determined by the Bureau to be the owner of the antenna
structure. On August 29, 2012, the Commission's Media Bureau granted an
application assigning the license for Station KWNA(AM) from Ely to
Buckaroo Broadcasting, LLC (Buckaroo). See File No. BAL-20120508ADB,
granted August 29, 2012. The parties consummated the assignment on October
19, 2012. See Notice of Consummation, filed October 22, 2012. Buckaroo
also filed the required FCC Form 854 to update the Antenna Structure's
ownership on February 21, 2013. See Antenna Structure Registration (ASR)
database for antenna structure number 1005854 (which now reflects Buckaroo
as the registered owner).
^ See NAL, supra note 4.
^ 47 U.S.C. S 303(q); 47 C.F.R. SS 17.47(a), 17.51(a).
^ 47 C.F.R. S 17.48.
^ 47 C.F.R. S 17.57.
^ See NAL, NAL/Acct. No. 200932960001, at paras. 13-14.
^ See Letter from Thomas N. Van Stavern, District Director, San Francisco
Office, to Torrey Sheen, Sheen Broadcasting Company (June 26, 2008) (on
file in EB-08-SF-038).
^ See Letter from Torrey Sheen, Sheen Broadcasting Company, to Thomas N.
Van Stavern, District Director, San Francisco Office (June 30, 2008) (on
file in EB-08-SF-038) (Sheen LOI Response). See also Asset Purchase
Agreement by and between Sheen Broadcasting Company, Seller, and Ely
Radio, LLC, Buyer, dated August 28, 2006 (Asset Purchase Agreement).
^ See Ely Radio, LLC, Response to NAL (Dec. 1, 2008) (on file in
^ See Forfeiture Order, 24 FCC Rcd at 13262-64, paras. 12-17
^ See id. In addition, Ely did not dispute the statement in the record in
which Ely's owner told the Bureau's agents that he wanted to move the
antenna structure to a new location, which suggests acknowledgment of
ownership of the structure; and that he previously reported prior antenna
light outages to the FAA, which suggests prior acceptance of
responsibility for the structure. See NAL, NAL/Acct. No. 200932960001, at
^ See Forfeiture Order, 24 FCC Rcd at 13264, paras. 18-19.
^ See id.
^ See Ely Radio, LLC, Petition for Reconsideration (Nov. 30, 2009) (on
file in EB-08-SF-0039) (Petition).
^ The specific provision at issue is Section 2 of the Agreement which
states: "Seller will sell, assign, transfer, convey and delivery to buyer
. . . [a]ll tangible property and fixtures owned by Seller used or useful
in the operation of the station." See supra note 14. The Forfeiture Order
noted that Section 3 of the Asset Purchase Agreement details the "Excluded
Assets," and that antenna structure number 1005854 was not listed,
supporting Sheen's position that the antenna was included in the sale of
the station. See Forfeiture Order, 24 FCC Rcd at 13263, para. 15.
^ See Petition at 1-2 & Attachment (Letter from Robert Dolan, Dolan Law
LLC, to Peter Gutmann, Womble, Carlyle, Sandridge & Rice, PLLC, dated Nov.
30, 2009) (Dolan Letter) (In his opinion letter, Mr. Dolan stated that he
reviewed the Agreement and that, "based on Nevada statutes and case law,"
Sheen, not Ely, is the legal owner of the land on which the antenna tower
is located. In addition, Mr. Dolan opined that because the tower is part
of the land, Sheen is presumed to be its owner.).
^ See MO&O, 27 FCC Rcd at 7610-13, paras. 7-12.
^ See id. at 7611, para. 8.
^ Id. at 7611, para. 9.
^ Id. at 7612-14, paras. 10-12.
^ See 47 C.F.R. S 1.115(b)(2); Beasley Broadcast Group, Inc., WQAM Limited
Partnership, Application for Renewal of License of Station WQAM(AM),
Miami, Florida, Memorandum Opinion and Order, 23 FCC Rcd 15949, 15955
^ See Application for Review at 1. Underlying this argument is Ely's
assertion that the Asset Purchase Agreement did not include the sale of
the antenna structure, which Sheen (the former licensee) disputed. See
MO&O, 27 FCC Rcd at 7609, para. 3. See also Sheen LOI Response, supra note
^ See Application for Review at 1-2.
^ MO&O, 27 FCC Rcd at 7611, para. 8 (internal citations omitted).
^ The Bureau provided Ely with an opportunity to provide additional
evidence to support its position concerning ownership, but it never did.
On this point, the Bureau stated:
In addition, Ely still has not proffered any new evidence, separate from
the Asset Purchase Agreement, to support its position that Sheen retained
title to the antenna structure or that Sheen would be responsible for the
maintenance of the antenna. In this regard, Ely could have submitted an
amendment (executed by both parties) to the Asset Purchase Agreement or
its current lease arrangement that unequivocally confirms that Sheen was
and is the owner of the antenna; and this begs asking why Ely has not (to
this day) sought to amend the Asset Purchase Agreement with Sheen to
clarify ownership of, and responsibility for, antenna structure number
Id. at 7611-12, para. 9.
^ To the extent Sheen and Ely continue to argue whether the antenna
structure was included in the Asset Purchase Agreement, that dispute is
more appropriate for a local court to decide. On this point, the Bureau's
decision is consistent with the Commission's longstanding policy of
declining to adjudicate private contract law questions for which a forum
exists in state courts. See Listener's Guild, Inc. v. FCC, 813 F.2d 465,
469 (D.C. Cir. 1987) (noting with approval the Commission's "long-standing
policy of refusing to adjudicate private contract law questions for which
a forum exists in the state courts"); Algreg Cellular Engineering, etc.,
Decision, 9 FCC Rcd 5098, at para. 46 (Rev. Bd. 1994) ("Another fallacy .
. . is the notion that the Commission is constrained to apply the laws of
the various states in performing the enforcement of its licensing rules.
It is well-established that while the Commission will look to state law,
where appropriate, it must ultimately decide cases on the basis of its own
federal policies and regulations."). See also Assignment of Call Sign
WPFX961, From Elaine Hough, Assignor, to Chadmoore Wireless Group, Inc.,
Assignee, Order, 18 FCC Rcd 1875, 1877, para. 7 & n.14 (WTB 2003) (citing
cases in support of general Commission policy of deferring resolution of
private, contract matters to local courts).
^ Under Part 17 of the Rules, both antenna structure owners and licensees
are responsible for maintaining the prescribed structure painting and/or
lighting of antenna structures. See Streamlining the Commission's Antenna
Structure Clearance Procedures and Revision of Part 17 of the Commission's
Rules Concerning Construction, Marking, and Lighting of Antenna
Structures, Report and Order, 11 FCC Rcd 4272, 4294, paras. 52-53 (1995)
(Antenna Structure Streamlining Report and Order) (emphasis added). See
also 47 C.F.R. 17.6 (Responsibility of Commission Licensees and
Permittees); 47 C.F.R. 73.1213(b) ("In the event of default by the owner,
each licensee or permittee shall be responsible for ensuring that the
structure complies with applicable painting and lighting requirements.").
This shared responsibility is intended to ensure that prescribed structure
painting and/or lighting is maintained at all times, and that lighting
outages will be promptly rectified, given compelling public safety
concerns. Further, as the Commission has stated, "if the owner cannot be
reached or reliance on the owner to maintain prescribed structure painting
and/or lighting proves to be ineffective, we [will] then turn to the
individual tenant licensees as the entities to bear secondary
responsibility for the structure's proper maintenance." Antenna Structure
Streamlining Report and Order, 11 FCC Rcd at 4293, para. 50.
^ See MO&O, 27 FCC Rcd at 7608-14, paras. 1-11.
^ See 47 U.S.C. S 303(q); 47 C.F.R. SS 17.47(a), 17.48, 17.51(a), 17.57.
^ 47 C.F.R. S 1.115.
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4),
17.47(a), 17.48, 17.51(a), 17.57.
^ 47 C.F.R. S 1.80.
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
(Continued from previous page)
Federal Communications Commission FCC 13-56
Federal Communications Commission FCC 13-56