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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-PA-319
Urban Radio of Pennsylvania, L.L.C. )
Radio Station WURP ) NAL/Acct. No.
200332400006
Philadelphia, Pennsylvania )
) FRN: 0004-9241-06
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 6, 2003
By the District Director, Philadelphia Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Urban Radio of Pennsylvania, L.L.C.
(``Urban'') has apparently violated Sections 17.47(a)(1),
17.48(a) and 17.51(a) of the Commission's Rules (the ``Rules'')1.
These violations occurred because Urban failed to exhibit all red
obstruction lighting on its antenna structure, failed to make
observations of the obstruction lighting once every 24 hours and
failed to notify the Federal Aviation Administration ("FAA") of
an obstruction light outage. We conclude that Urban is
apparently liable for a forfeiture in the amount of fifteen
thousand dollars ($15,000).
II. BACKGROUND
2. Urban, licensee of AM broadcast station WURP, owns the
antenna structure which is located at the coordinates 40o 24' 47"
N by 079o 51' 13" W and assigned the Antenna Structure
Registration Number 1225839. Based on FAA Aeronautical Study
Number 89-AEA-1635-OE, Urban is required to display red
obstruction lighting on the antenna structure between sunset and
sunrise.
3. On September 25, 2002, the Enforcement Bureau's
Philadelphia Office received a fax from an anonymous person
stating that the obstruction lighting on the antenna structure
for AM broadcast station WURP was not functioning. On October 2,
2002, an agent from the Philadelphia Office traveled to the
Braddock, Pennsylvania area to investigate the complaint. On
October 2, 2002 between 9:40 p.m. and 10:00 p.m., on October 3,
2002 between 6:10 a.m. and 6:43 a.m. and on October 3, 2002
between 7:20 p.m. and 7:45 p.m., the agent observed that the red
obstruction lighting on the WURP antenna structure was
extinguished.
4. On October 3, 2002, the agent contacted Mr. John Heal,
the chief engineer for station WURP, to inform Urban of the
obstruction light outage. During the telephone conversation, Mr.
Heal stated that Urban was not aware that the obstruction light
outage had occurred and, therefore, did not notify the FAA of the
outage. He said that although Urban had an agreement with a
person who lived near the antenna structure to monitor the
obstruction lighting, that person did not monitor the obstruction
lighting as required.
5. On October 10, 2002, the Philadelphia Office issued a
Notice of Violation (``NOV'') to ICBC Broadcasting Holdings,
Inc., the parent company of Urban. The NOV cited Urban for
failure to exhibit red obstruction lighting, in violation of
Section 17.51(a), failure to make observations of the obstruction
lighting once every 24 hours, in violation of Section 17.47(a)(1)
of the Rules, and failure to notify the FAA of the obstruction
lighting outage, in violation of Section 17.48(a) of the Rules.
6. In a letter dated October 28, 2002, Mr. David O'Connor
of Holland & Knight LLP submitted a response to the Notice of
Violation on behalf of Urban. In the response, Mr. O'Connor
acknowledged the violations and provided a detailed description
of the actions that Urban took to correct the violations. He
stated that John Heal, the chief engineer of WURP, immediately
contacted the FAA to report the outage after learning of the
outage on October 3, 2002. He also stated that Dan Plants, the
WURP tower contractor, completed the repairs to the obstruction
lighting on October 7, 2002 at approximately 6:00 p.m., and that
the obstruction lighting had been functioning properly since the
repairs were made. He further stated that the station retained a
local consulting engineer to visually observe the tower structure
to ensure compliance with the lighting specifications, and that
in order to preclude a recurrence of unreported tower lighting
outages, the station ordered a Broadcast Tools AVR8 Alarm Voice
Response Unit that would be installed at the site. This unit
would constantly monitor the obstruction lighting and place
emergency calls automatically to several WURP personnel if an
outage occurs.
III. DISCUSSION
7. Section 17.47(a)(1) of the Rules requires that the
owner of any antenna structure which is registered with the
Commission and has been assigned lighting specifications
referenced in this part shall make observations of the antenna
structure's lights at least once each 24 hours either visually or
by observing an automatic properly maintained indicator designed
to register any failure of such lights, to insure that all lights
are functioning properly as required. Urban failed to make
observations of the obstruction lighting on October 2, 2002 and
October 3, 2002. Consequently, Urban was unaware that the
obstruction lighting on the WURP antenna structure was
extinguished.
8. 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 referenced in this
part shall report immediately by telephone or telegraph to the
nearest Flight Services Station or office of the Federal Aviation
Administration any observed or otherwise known extinguishment or
improper functioning of any top steady burning light or flashing
obstruction light, regardless of its position on the antenna
structure, not corrected within 30 minutes. Urban failed to
notify the FAA of the obstruction light outage that occurred on
the WURP antenna structure on October 2, 2002 and October 3,
2002.
9. Section 17.51(a) of the Rules requires that all red
obstruction lighting shall be exhibited from sunset to sunrise
unless otherwise specified. On October 2, 2002 between 9:40 p.m.
and 10:00 p.m., on October 3, 2002 between 6:10 a.m. and 6:43
a.m., and on October 3, 2002 between 7:20 p.m. and 7:45 p.m.,
Urban Radio of Pennsylvania, LLC., failed to exhibit the red
obstruction lighting on the WURP antenna structure.
10. Based on the evidence before us, we find that Urban
willfully2 and repeatedly3 violated Sections 17.47(a)(1),
17.48(a), and 17.51(a) of the Rules. The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporated the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113
(1997), recon. denied, 15 FCC Rcd 303(1999) (``Forfeiture Policy
Statement''),4 sets the base forfeiture amount for failure to
make required measurements or conduct required monitoring at
$2,000, for failure to file required forms or information at
$3,000, and for failure to comply with prescribed lighting and/or
marking at $10,000. 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 1934,5 (the
``Act''), as amended, 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 fifteen thousand dollar ($15,000)
is warranted.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6, and Sections 0.111, 0.311 and 1.80 of the
Rules7, Urban Radio of Pennsylvania L.L.C. is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen
thousand dollar ($15,000) for failing to make observations of the
obstruction lighting on the WURP antenna structure on October 2,
2002 and October 3, 2002, in violation of Section 17.47(a)(1) of
the Rules, failing to notify the FAA of the obstruction light
outage on October 2, 2002 and October 3, 2002, in violation of
Section 17.48(a) of the Rules, and failing to exhibit all red
obstruction lighting on the WURP antenna structure on October 2,
2002 and October 3, 2002, in violation of Section 17.51(a) of the
Rules,.
12. 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, Urban Radio of Pennsylvania 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.
13. 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 (FRN) 0004-92-4106, and should note
the NAL/Acct. No. 200332400006.
14. 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. 200332400006 and FRN:
0004-92-4106.
15. 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.
16. 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. 20554.8
17. 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 and 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.
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Urban Radio of Pennsylvania, L.L.C., at 2471 North
54th Street, Suite 220, Philadelphia, Pennsylvania 19131.
FEDERAL COMMUNICATIONS COMMISSION
John E. Rahtes
District Director
Philadelphia Office
_________________________
1 47 C.F.R §§ 17.47(a)(1), 17.48(a), and 17.51(a).
2 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).
3 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.
4
47 C.F.R. § 1.80.
5 47 U.S.C § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.