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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                )


                                     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 

                       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  

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 

     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, 

          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 

          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 

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 

                        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 

     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.


                       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.