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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-116
)
Wings Communications, Inc. ) NAL/Acct. No.200332700010
DBA WELE Radio )
Owner of Antenna Structure ) FRN 0004-3312-60
Registration number 1062835 in )
Ormond, Beach, Florida
Ormond Beach, Florida
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 2, 2002
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Wings Communications, Inc. DBA WELE Radio
(``WELE''), in Ormond Beach, Florida, apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000) for
willful and repeated violation of Section 17.51 of the
Commission's Rules (``Rules'').1 Specifically, we find WELE
apparently liable for failure to exhibit red obstruction lighting
from sunset to sunrise on the antenna structure assigned Antenna
Structure Registration (``ASR'') number 1062835 in Ormond Beach,
Florida.
II. BACKGROUND
2. Antenna structure 1062835 is located in Ormond Beach,
Florida. Wings Communications, Inc. DBA WELE Radio is the
registered owner of this structure. The structure's ASR
specifies that the structure be painted and lit with red
obstruction lighting.
3. On October 1, 2002, after local sunset, two agents from
the Commission's Tampa Field Office inspected antenna structure
1062835 in Ormond Beach, Florida and observed that the top red
beacon on the structure was not illuminated per assigned painting
and lighting specifications. The Federal Aviation Administration
(``FAA'') had no record of any report of a light outage for this
structure.
4. On October 3, 2002, after local sunset, two agents from
the Commission's Tampa Field Office inspected antenna structure
1062835 in Ormond Beach, Florida and observed that the top red
beacon on the structure was not illuminated per assigned painting
and lighting specifications.
III. DISCUSSION
·
5. Section 17.51 requires that all red obstruction
lighting be exhibited from sunset to sunrise unless otherwise
specified. WELE owns antenna structure 1062835 and is required
to exhibit red obstruction lighting on that structure from sunset
to sunrise. On October 1, 2002 and October 3, 2002, WELE failed
to exhibit red obstruction lighting from sunset to sunrise on
antenna structure 1062835 in Ormond Beach, Florida. In addition,
WELE failed to immediately notify the FAA of the improper
functioning of the structure's lighting.2
6. Based on the evidence before us, we find WELE willfully3
and repeatedly4 violated Section 17.51 of the Rules by failing to
exhibit red obstruction lighting from sunset to sunrise on
antenna structure 1062835 in Ormond Beach, Florida.
7. Pursuant to Section 1.80(b)(4) of the Rules,5 the base
forfeiture amount for failure 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)(D) of the Communications Act of 1934,
as amended (``Act''), which include 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
require.6 Considering the entire record and applying the factors
listed above, this case warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
8. 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
Rules,8 Wings Communications, Inc. DBA WELE Radio is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for willful and repeated
violation of Section 17.51 of the Rules by failing to exhibit red
obstruction lighting from sunset to sunrise on antenna structure
1062835 in Ormond Beach, Florida.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Wings Communications, Inc. DBA WELE Radio 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 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 above. Requests for payment of
the full amount of this NAL under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.9
11. 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. referenced above.
12. 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.
13. 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.
14. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Wings Communications, Inc. DBA WELE Radio, 432 S. Nova Road,
Ormond Beach, Florida, 32174.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
Tampa Office, Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. § 17.51.
2 Owners of registered antenna structures with assigned lighting
must immediately report to the FAA any known improper functioning
of any top or flashing light. See 47 C.F.R. § 17.48(a).
3 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 4387-88 (1991).
4 The 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.'' 47 U.S.C. §
312(f)(2).
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.