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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-CF-338
)
Mortenson Broadcasting Co. ) NAL/Acct. No.
200232340002
Antenna Structure Registration No. 1020434 )
South Charleston, WV ) FRN 0004-1688-29
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 9,
2002
By the District Director, Columbia Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Mortenson Broadcasting Co. (``Mortenson'')
has apparently violated Section 17.51(a) of the Commission's
Rules1 (``Rules'') by failing to exhibit obstruction lights on
its antenna structure between sunset and sunrise. We conclude
that Mortenson is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On May 15, 2002, at approximately 9:20 PM agents from
the Commission's Columbia, Maryland office observed that the
lights on Mortenson's tower were extinguished.
3. On May 16, 2002, at approximately 9:30 AM one of the
agents visited Mortenson's studio of WSCW,2 and determined that
station personnel were unaware of the fact that the tower lights
were unlit the previous night. The agent advised Mortenson's
WSCW chief engineer and station manager that the station was
required to notify the FAA of the unlit tower if not repaired
within 30 minutes.
4. On May 23, 2002, the agent contacted the FAA Flight
Service Center in Elkins, WV. FAA personnel told the agent that
Mortenson made notification of the light outage at 8:14 AM on May
17, 2002.
III. DISCUSSION
5. Section 17.51(a) of the Rules requires prescribed
obstruction lighting be exhibited from sunset to sunrise.
Mortenson's antenna structure was observed on May 15, 2002 after
sunset with obstruction lighting unlit. Section 17.48 of the
Rules3 requires notification of extinguished lighting to the FAA
if not corrected within 30 minutes. FCC agents advised Mortenson
personnel of the improper functioning of the tower lighting on
the morning of May 16, 2002. Mortenson waited until after
another sunset to sunrise period before notifying the FAA of the
improper functioning of the lights.
6. Based on the evidence before us, we find that Mortenson
willfully4 violated Section 17.51(a) of the Commission's Rules.
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC
Rcd 303(1999) (``Forfeiture Policy Statement'')5, sets the base
forfeiture amount at $10,000 for failure to comply with
prescribed lighting. In assessing the monetary forfeiture
amount, we must take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Communications Act of 1934, as
amended (``Act''),6 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. Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the inflation
adjustments, we believe that a ten thousand dollar ($10,000)
monetary forfeiture is warranted.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act7 and Sections 0.111, 0.311 and 1.80 of the
Rules8, Mortenson Broadcasting Co. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for willfully violating Section 17.51(a) of the
Rules.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Mortenson Broadcasting Co. 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. 200232340002, and FRN 0004-1688-29
10. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200232340002.
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. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Mortenson Broadcasting Co., 3270 Blazer
Parkway, Suite 101, Lexington, KY 40509.
FEDERAL COMMUNICATIONS
COMMISSION
Charles C. Magin
District Director
Columbia Office
_________________________
1 47 C.F.R. § 17.51(a).
2 Mortenson is the licensee of radio station WSCW in addition to
registered owner of the antenna structure.
3 47 C.F.R. § 17.48
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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).
547 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.