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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-DL-080
)
Leon's Radio Inc. ) NAL/Acct. No.200332500007
Owner of antenna supporting )
structure 1011122 located in ) FRN 0001-7075-95
Moore, Oklahoma )
)
Oklahoma City, Oklahoma
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 2, 2003
By the Enforcement Bureau, Dallas Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Leon's Radio, Inc. (``Leon's
Radio''), owner of antenna supporting structure 1011122,
apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000) for willful violation of Section
17.50 of the Commission's Rules (``Rules'').1 Specifically,
we find Leon's Radio, Inc. apparently liable for failing to
clean or repaint its antenna structure to maintain good
visibility.
II. BACKGROUND
2. On February 20, 2003, an agent from the
Commission's Dallas Field Office inspected the antenna
supporting structure at or near geographic coordinates 35º
22´ 10" N, 97º 27´ 37" W. The agent observed that the paint
was dark and dull and that there was unpainted coax on the
tower. The condition of the paint and the unpainted coax
resulted in poor visibility of the structure's markings when
observed at approximately ¼ of a mile. The structure owner
stated he knew the structure needed repainting and had been
unable to find a painting company with the appropriate
insurance. The structure is registered to Leon's Radio Inc.
under antenna structure registration number 1011122. The
registration requires marking and lighting.
III. DISCUSSION
3. Section 17.50 requires antenna structures
requiring painting under Part 17 of the Rules to be cleaned
or repainted as often as necessary to maintain good
visibility. Antenna structure owners are responsible for
maintaining a structure's painting.2 Leon's Radio owns
antenna structure 1011122. The structure requires painting
pursuant to its antenna structure registration and because
the structure's height exceeds 200 feet.3 On February 20,
2003, Leon's Radio's antenna structure had unpainted coax
obscuring portions of the painted structure and the paint
was dark and dull so that the bands were difficult to
distinguish at approximately ¼ of a mile, resulting in poor
visibility of the structure.
4. Based on the evidence before us, we find Leon's
Radio willfully4 violated Section 17.50 of the Rules by
failing to clean or repaint its antenna structure to
maintain good visibility.
5. Pursuant to Section 1.80(b)(4) of the Rules,5 the
base forfeiture amount for failing 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
6. 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 Leon's Radio, Inc. is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for willful violation of
Section 17.50 of the Rules by failing to clean or repaint
its antenna structure to maintain good visibility.
7. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Leon's Radio, Inc. SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
8. 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
9. 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.
10. 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.
11. 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.
12. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Leon's Radio, Inc., PO Box 94748,
Oklahoma City, Oklahoma 73143.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director, Dallas Office,
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. § 17.50.
2 See 47 C.F.R. § 17.6(a).
3 See 47 C.F.R. § 17.21(a).
4 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).
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.