Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-01-PA-
312
)
Beacon Broadcasting, Inc. ) NAL/Acct. No.
200232400003
)
Warren, Ohio ) FRN: 0006-1146-64
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 14, 2002
By the District Director, Philadelphia Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Beacon Broadcasting, Inc. (``Beacon''),
the licensee of WGRP(AM), Greenville, Pennsylvania, has
apparently violated Sections 17.4(g), 17.48(a) and 17.50 of the
Commission's Rules (``the Rules'').1 These violations occurred
as a result of Beacon's failure to post the Antenna Structure
Registration (``ASR'') numbers on the WGRP(AM) antenna
structures; failure to notify the Federal Aviation Administration
(``FAA'') that the obstruction lighting was improperly
functioning; and failure to repaint the WGRP(AM) antenna
structures. We conclude that Beacon is apparently liable for a
forfeiture in the amount of fifteen thousand dollars ($15,000).
II. BACKGROUND
2. On April 4, 2001, FCC agent David Dombrowski of the
Enforcement Bureau's Philadelphia Office inspected the two
antenna structures utilized for broadcast station WGRP(AM). The
antenna structures are assigned the ASR numbers 1213201 and
1213203 and located at 44 McCracken Road, Greenville,
Pennsylvania. During the inspection, the FCC agent observed that
the ASR numbers were not posted on the WGRP(AM) antenna
structures and that the paint on both antenna structures was
severely faded and flaking.
3. On April 23, 2001, the Philadelphia Office issued
Beacon a Notice of Violation (``NOV'') for failure to post the
ASR numbers 1213201 and 1213203 on the WGRP(AM) antenna
structures, in violation of Section 17.4(g) of the Rules, and for
failure to clean and repaint the WGRP(AM) antenna structures to
maintain good visibility, in violation of Section 17.50 of the
Rules. In a response dated May 23, 2001, Beacon acknowledged the
violations and stated that it posted the ASR numbers at the base
of the antenna structures and would repaint the antenna
structures within 60 days.
4. On November 7, 2001 and November 8, 2001, FCC Agent
Dombrowski re-inspected the WGRP(AM) antenna structures to verify
that Beacon had sufficiently addressed the violations cited in
the April 23, 2001 NOV. On November 8, 2001, FCC agent
Dombrowski observed that the ASR numbers 1213201 and 1213203 were
not posted on the WGRP(AM) antenna structures and that the paint
on both antenna structures was still severely faded and flaking.
The FCC agent also observed on November 7, 2001 at 6:00 p.m. and
on November 8, 2001 at 6:00 a.m. that the top-level red
obstruction lighting on the antenna structure 1213201 was
extinguished. After interviewing Michael Arch, the Station
Manager, the FCC agent determined that Beacon failed to notify
the FAA that the top-level obstruction lighting was extinguished.
5. On November 15, 2001, the Philadelphia Office issued
Beacon a NOV for failure to post the ASR numbers 1213201 and
1213203 on the WGRP(AM) antenna structures, in violation of
Section 17.4(g) of the Rules; for failure to notify the FAA that
the top-level red obstruction lighting was extinguished, in
violation of Section 17.48(a) of the Rules; and for failure to
repaint the antenna structures to maintain good visibility, in
violation of Section 17.50 of the Rules. In a response dated
December 5, 2001, Beacon acknowledged the violations and stated
that it posted the ASR numbers on the antenna structures,
notified the FAA of the obstruction light malfunction and
commenced work to correct the obstruction lighting outage.
Beacon also stated that it obtained estimates to repaint the
antenna structures but the work would commence upon the receipt
of funds.
III. DISCUSSION
6. Section 17.4(g) of the Rules requires that the ASR
number be displayed in a conspicuous place so that it is readily
visible near the base of the antenna structure. Section 17.50 of
the Rules requires that the antenna structure be cleaned or
repainted as often as necessary to maintain good visibility. In
the April 23, 2001 Notice of Violation, the Philadelphia Office
notified Beacon that it should immediately post the ASR numbers
and re-paint the antenna structures. However, on November 8,
2001, the FCC agent observed that Beacon still had not taken
corrective action to post the ASR or paint the tower.
7. Section 17.48(a) of the Rules requires that the owner
of any antenna structure which is registered with the Commission
and has been assigned lighting specifications shall report
immediately by telephone or telegraph to the nearest Flight
Service Station or office of the Federal Aviation Administration
any observed or otherwise known extinguishment or improperly
functioning of any top steady burning light or any flashing
obstruction light, regardless of its position on the antenna
structure. On November 7, 2001 and November 8, 2001, the top-
level red obstruction lighting on antenna structure 1213201 was
extinguished. Beacon failed to notify the FAA that the top-level
obstruction lighting was extinguished.
8. The Commission assesses monetary forfeitures pursuant
to Section 503(b) of the Communications Act of 1934, as amended2,
(the ``Act'') as implemented in Section 1.80 of the Rules3. A
forfeiture may be assessed against a person who the Commission
finds to have willfully4 or repeatedly5 failed to comply with the
provisions of the Act or the Rules.
9. Based on the evidence before us, we find that Beacon
apparently willfully and repeatedly violated Section 17.4(g),
Section 17.48(a) and Section 17.50 of the Rules. Forfeiture
amounts are decided in accordance with Section 503(b)(2) of the
Act6 and the Commission's forfeiture guidelines in Section
1.80(b)(4) of the Rules7. 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''), sets the base forfeiture amount for Beacon's
marking and lighting violations at $10,000 and for failure to
notify the FAA at $3,000. The Forfeiture Policy Statement does
not establish a base forfeiture amount for failure to display the
antenna structure registration number. The Commission has
determined, however, that the appropriate base forfeiture amount
for failure to post the ASR number is $2,000 per violation.8 In
assessing the monetary forfeiture amount, we must take into
account the statutory factors set forth in Section 503(b)(2)(D)
of the Act,9 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
Policy Statement and the statutory factors to the instant case
and applying the inflation adjustments, we believe that a fifteen
thousand dollar ($15,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80 of the
Rules,10 Beacon Broadcasting, Inc. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen
thousand dollars ($15,000) for failing to post the ASR numbers,
failing to notify the FAA and failing to maintain the paint on
the WGRP(AM) antenna structures.
11. 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, Beacon Broadcasting, Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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. 200232400003 and FRN: 0006-1146-64.
13. 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. 200232400003 and FRN:
0006-1146-64.
14. 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.
15. 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. 20554.11
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Beacon Broadcasting, Inc., 5075 Mahoning
Avenue, Warren, Ohio 44483 and Beacon Broadcasting, Radio Station
WGRP, 44 McCraken Road, Greenville, Pennsylvania 16125.
FEDERAL COMMUNICATIONS
COMMISSION
John E. Rahtes
District Director
Philadelphia Office
_________________________
1 47 C.F.R. §§ 17.4(g), 17.48(a) and 17.50.
2 47 U.S.C. § 503(b).
3 47 C.F.R. § 1.80.
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).
5 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he 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.
6
47 C.F.R. § 503(b)(2).
7
C.F.R. § 1.80(b)(4).
8 See American Tower Corporation, 16 FCC Rcd 1282 (2001).
9 47 U.S.C § 503(b)(2)(D).
10 47 C.F.R. §§ 0.111 and 0.311.
11 See 47 C.F.R. § 1.1914.