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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Holladay Broadcasting Company, ) File Number EB-02-TP-411
Inc., )
DBA: WKSM ) NAL/Acct. No. 200332700003
Owner of Antenna Structure )
Registration Number 1041151 ) FRN 0001-7476-90
Fort Walton Beach, Florida )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October
22, 2002
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that Holladay Broadcasting Company, Inc., owner of antenna
structure #1041151 in Fort Walton Beach, Florida, willfully
violated Section 17.50 of the Commission's Rules1 by failing to
maintain good visibility of the required antenna structure
obstruction marking. We conclude that Holladay Broadcasting
Company, Inc. is apparently liable for a forfeiture in the amount
of ten thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1041151 is located in Fort Walton
Beach, Florida. Holladay Broadcasting Company, Inc. is the
registered owner of this structure. The structure's Antenna
Structure Registration (``ASR'') specifies that the structure be
painted.
3. On August 5, 2002, an agent from the Commission's Tampa
Office, inspected Holladay Broadcasting Company, Inc.'s antenna
structure #1041151 in Fort Walton Beach, Florida. The agent
observed that black cables attached to the structure obstructed
the antenna structure paint on two-thirds of the structure,
resulting in poor visibility of the structure.
III. DISCUSSION
4. Section 17.50 of the Rules states that antenna
structures requiring painting shall be cleaned or repainted as
often as necessary to maintain good visibility. The antenna
structure owner is responsible for maintaining the structure's
painting.2 Holladay Broadcasting Company, Inc. is the registered
owner of antenna structure #1041151. This structure is required
to be painted pursuant to Federal Aviation Administration
specifications, the structure's ASR, and FCC rules.3 On August
5, 2002, the paint on two-thirds of the structure was obstructed
by cables attached to the structure.
5. Based on the evidence before us, we find that Holladay
Broadcasting Company, Inc. willfully4 violated Section 17.50 of
the Commission's Rules by failing to maintain good visibility of
its antenna structure.
6. Pursuant to Section 1.80(b)(4) of the Rules,5 the base
forfeiture amount for failure to comply with prescribed lighting
and marking is $10,000. Section 503(b)(2)(D) of the
Communications Act of 1934, as amended (``Act''), requires us to
take into account ``...the nature, circumstances, extent, and
gravity of the violation, and with respect to the violator, the
degree of culpability, any history or prior offenses, ability to
pay, and other such matters as justice may require.''6
Considering the entire record, and applying the factors listed
above, this case warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,8 Holladay Broadcasting Company, Inc., is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for willful violation of
Section 17.50 of the Rules by failing to maintain good visibility
of the required antenna structure obstruction markings.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this Notice of Apparent Liability, Holladay Broadcasting Company,
Inc., SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation
of the proposed forfeiture.
9. Payment of the forfeiture may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. and FRN referenced in the letterhead above.
Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Federal Communications Commission, Chief, Revenue and Receivables
Operations Group, 445 12th Street, SW, Washington, DC 20554.9
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. and FRN referenced in the letterhead above.
11. 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 documentation
submitted.
12. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
13. IT IS FURTHER ORDERED THAT a copy of this Notice of
Apparent Liability shall be sent by regular mail and Certified
Mail Return Receipt Requested to Holladay Broadcasting Company,
Inc., 225 NW Hollywood Boulevard, Fort Walton Beach, Florida
32859.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director - Tampa Office
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R § 17.50.
2 See 47 C.F.R. § 17.6(a).
3 See 47 C.F.R. §§ 17.21, 17.22, and 17.23.
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act ....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
5 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.