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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
ACS Television, L.L.C. )
) File Number EB-01-AN-053
K25FM, K27FJ, K39EP, K43EY, )
K44EQ, K46EN, K49EE, K50EP, ) NAL/Acct. No. 20023278001
K52FI, K53FN, K63FT, K64FA, )
K65GM, K67GT, K68FF ) FRN: 599308
)
510 L Street, Suite 500 )
Anchorage, Alaska )
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released:, January 22, 2002
By the Anchorage Resident Agent Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that ACS Television, L.L.C. (``ACS''),
licensee of the 15 above-referenced LPTV stations and the
registered owner of Antenna Structure Registration Number
1204036, has apparently violated section 503(b) of the
Communications Act of 1934 (``Act''), as amended1, and Section
74.780, and 73.3538 of the Federal Communications Commission's
Rules (FCC rules)2, by changing the location of the antenna,
the overall height above ground of the antenna structure
(AGL), the height of antenna radiation center above ground,
and the height above mean sea level of the 15 above-referenced
station, without prior authorization granted by the
Commission. We conclude that ACS is apparently liable for
forfeiture in the amount of thirteen thousand dollars
($13,000).
II. BACKGROUND
2. On March 21, 2001, Anchorage Resident Agents inspected
ACS's registered antenna structure, #1204036, located near
Eagles Nest Subdivision, Eagle River, Alaska. Antenna for each
of the 15 above referenced LPTV stations, licensed to ACS, are
mounted on the structure. The Antenna Structure Registration
lists the geographic coordinates for this structure as: N61
20
8.8, W149 30 56.2. The agents calculated the coordinates for
the structure at the time of inspection as: N61 20 10.6, W149
30 46.8. According to FCC records, the 15 above-referenced
stations' antennas are authorized to operate at: N61 20 10,
W149 30 43.
3. During the inspection, the agents determined that the
antennas on structure #1204036 are mounted near the top of the
structure, with the antenna panel mountings beginning at a
height of approximately 43 meters (141 ft.) and continuing to
the top of the structure. According to the Antenna Structure
Registration, the overall height of the structure above mean
sea level is 577.9 meters (1,896 ft.), the overall height
above ground (AGL), including all appurtenances is 61.0 meters
(200 ft.), and the overall height above ground (AGL), without
appurtenances is 54.8 meters (180 ft.). According to FCC
records, the 15 LPTV stations are authorized for an antenna
height of radiation above ground of 13.95 meters (45 ft.),
height of radiation center above mean seal level of 592 meters
(1,942 ft.) on a structure with overall height above ground
(AGL) of 18.9 meters (62 ft.).
4. On April 11, 2001, the agents verified, by direction
finding techniques that the previously referenced 15 LPTV
stations were transmitting from the location of the above
mentioned registered antenna structure.
5. On April 19, 2001, the Anchorage Resident Agent Office,
issued an Official Notice of Violation (``NOV'') to ACS, advising
that the 15 LPTV stations were constructed and operating at
variance with the station authorization, in violation of Part 74
of the FCC's rules. In particular, the NOV detailed the variances
in geographic coordinates, and the agents findings that the
antenna for the 15 stations were mounted on the tower at a height
approximately 100 feet higher than authorized. The NOV noted that
Section 74.780, 73.3538(a)(1) and (4), and 73.1690(b)(2) require
FCC grant of a construction permit prior to making any change in
station geographic coordinates, including coordinate corrections,
and any change in height of the antenna radiation center above
ground.
6. On May 8, 2001, the Anchorage Resident Agent Office
received a written response to the NOV from ACS Television, L.LC.
ACS stated:
In or around November 1998, the previous owners,
Goldbelt Inc., constructed a new transmission
tower at Eagle's Nest approximately 100 feet
from the tower existing at the time and obtained
FAA clearance for it. Under the previous
ownership, the LPTV antenna system was
transferred to the new tower at Eagle's Nest and
the old tower removed. The older tower was never
registered with the FCC, presumably because it
was less than 200 feet in height and was not
otherwise required to be registered. ACS has
since learned that the newer tower was
registered by the previous owners under
registration #1204036 on or about October 1,
1999.
Subsequent to acquiring the tower, and in part
in response to a prospective tower tenant which
was concerned about a potential coordinates
discrepancy, ACS-TV decided to clear the tower
through the FAA in 2000, and in August 2000,
ACS-TV modified the existing registration
assuming that it was correcting a minor
discrepancy in coordinates which might have been
the function of rounding between NAD27 and NAD83
coordinates. ACS-TV did not become aware of
improper or unauthorized movement of the LPTV
antenna system until the Commission's notice was
received.
As a consequence of this discovery, ACS-TV is
proceeding as rapidly as possible to obtain FCC
authority for the current operation of the LPTV
stations and to amend pending applications,
which are erroneous.
7. The Anchorage Resident Agents subsequently reviewed FCC
records on July 20, 2001, September 26, 2001 and December 5,
2001. FCC records indicate no construction permit has been
granted authorizing a change in the overall height above
ground of the antenna structure, height of radiation center
above ground or height above mean sea level for any of the 15
stations.
The records research revealed that between October of 2000 and
May of 2001, modification applications were tendered for filing,
but not yet accepted for filing, for 13 of the stations
requesting authority to operate at coordinates and antenna
heights similar to the stations' current operations.3 On July 19,
2001, six of the LPTV stations received Class A licenses.4 The
Class A licenses authorize operations consistent with the
authorizations for the LPTV facilities, but do not reflect
authorizations for construction or operation at the coordinates
and antenna height at which the stations are currently operating.
FCC records do not reflect any application filed, tendered or
granted to modify the recently issued Class A TV authorizations.
8. On November 9, 2001, the Resident Agents performed a
follow-up inspection of ACS's station licenses at ACS's office
at 600 Telephone Avenue in Anchorage, Alaska. No applications
and no authorizations for construction or operation of the 15
stations at the current antenna height were in the stations'
records. ACS again stated that copies of all relevant
authorizations and applications would be promptly provided to
Anchorage Resident Agents to confirm the requisite authority
for operation for the stations. As of the date of the NAL, ACS
has not provided any documentation to the Anchorage Resident
Agents that it possesses authority to construct or operate its
stations' antenna at the current height on the current antenna
structure.
III. DISCUSSION
9. 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 fails to comply with any of the provisions of the Act
or of any, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. The term
``willful'' as used in Section 503(b) has been interpreted to
mean simply that the acts or omissions are committed knowingly.5
It is not pertinent whether or not the licensee's act or
omissions are intended to violate the law.
10. The FCC rules applicable to TV translators, low power
TV, and TV booster stations and Class A TV stations6 provide that
prior authority is required from the FCC to make changes in the
location, height, or directional radiating characteristics of the
antenna or antenna system. In addition, an application for a
construction permit must be filed and granted prior to
construction or operation at changed geographic coordinates.7
11. Based on the evidence before us, we find that on March
21, 2001 and April 11, 2001, ACS Television, L.L.C., licensee of
stations K25FM, K27FJ, K39EP, K43EY, K44EQ, K46EN, K49EE, K50EP,
K52FI, K53FN, K63FT, K64FA, K65GM, K67GT, K68FF, willfully
violated Section 503 of the Communications Act and Sections
74.780, 73.3538(a)(1), and 73.3538(a)(4) of the Commission's
Rules by constructing and operating its stations at unauthorized
geographic coordinates and unauthorized antenna height of
radiation center above ground.
12. The licenses for ACS's LPTV and Class A TV stations
specify operation at an antenna height significantly below the
stations' actual antenna height. Broadcast stations may not
construct or operate facilities without advance approval from the
FCC. Both major and minor facilities changes require construction
permits.8 The mere filing of an application to modify station
facilities does not give the permittee or licensee any authority
to make the requested changes.
13. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement''),9set base
forfeiture amounts of $5,000 for exceeding authorized antenna
height, $4,000 for construction or operation at unauthorized
location, $3,000 for failure to file required forms or
information, and $1,000 for failure to maintain required records.
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 Act, which include the nature, circumstances,
extent, and gravity of the violation(s), 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.10
14. ACS admits in it's May 8, 2001 reply to the NOV that
the antennas structures for the 15 LPTV stations were moved
without the requisite prior FCC approval to an new structure
whose coordinates do not mat the authorized coordinates. ACS
further admits that the antennas are mounted on the new structure
at a height that exceeds the authorized antenna radiation center
height. ACS committed to promptly correct the error. Yet despite
receipt of Class A licenses granted July 9, 2001 for several of
the stations with coordinates and antenna information
inconsistent with current operations, and despite re-inspection
by FCC agents, ACS has neglected to take the necessary steps to
bring its facilities into compliance with it's authorizations or
to amend it's authorizations to seek approval to operate
consistent with its current operating parameters. Applying the
Forfeiture Policy Statement statutory factors to the instant
case, a $13,000 forfeiture is warranted.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended11, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules12, ACS
Television, L.L.C. is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of thirteen thousand dollars
($13,000) for violating Section 74.780, 73.3538(a)(1), and (a)(4)
of the Rules.13
16. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules14, within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, ACS Television, L.L.C.
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
17. 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 must include
the FCC Registration Number, 599308 referenced above, and also
should note the NAL/Acct. No. 20023278001.
18. 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. 20023278001 referenced
above.
19. 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.
20. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.15
21. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to ACS Television, L.L.C., 510 L Street, Suite 500,
Anchorage, Alaska 99501.
FEDERAL COMMUNICATIONS COMMISSION
Marlene Windel
Resident Agent
Anchorage Resident Agent Office
Cc: Charles R. Naftalin
Holland & Knight, LLP
2099 Pennsylvania Ave., NW, Suite 100
Washington, DC 20006
_________________________
1 47 U.S.C. § 503(b).
2 47 C.F.R § 74.780, § 73.3538.
3 Modification applications were filed for LPTV stations: K39EP;
K43EY; K44EQ; K46EN; K49EE; K50EP; K52FI; K53FN; K63FT; K64FA;
K65GM; K67GT; K68FF.
4 Stations K39EP; K43EY; K44EQ; K46EN; K49EE and K50EP were
issued Class A licenses on July 19. 2001.
5 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 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., 6FCC Rcd 4387(1991).
6 47 C.F.R. § § 74.780, 73.3538(a)(1) and (4), 73.3572.
7 47 C.F.R. § § 74.780, 73.1690(b).
8 See e.g., 47 C.F.R. § § 74.780, 73.3533, 73.3538, 73.3572.
9 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines 12 FCC Rcd 17087 (1997), (recon, denied), 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement'').
10 47 U.S.C. § 503(b)(2)(D).
11 47 U.S.C. § 503(b).
12 47 C.F.R. §§ 0.111, 0.311, 1.80.
13 47 C.F.R. §74.780, 73.3538(a)(1), 73.3538(a)(4).
14 47 C.F.R. § 1.80.
15 See 47 C.F.R. § 1.1914.