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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
) File No. EB-02-CG-
522
Mercury Broadcasting Company, Inc. )
Radio Station WKBF ) NAL/Acct. No.
200332320004
Moline, Illinois )
) FRN: 0001 6778 06
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
24, 2003
By the District Director, Chicago Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Mercury Broadcasting Company, Inc.,
(``Mercury''), has apparently violated Sections 17.50 and 17.57
of the Commission's Rules (the ``Rules'').1 These violations
occurred as a result of Mercury failing to repaint their antenna
structures as often as necessary to maintain good visibility, and
failing to notify the Commission of tower ownership change. We
conclude that Mercury is apparently liable for a forfeiture in
the amount of thirteen thousand dollars ($13,000).
II. BACKGROUND
2. On July 3, 2002, an agent from the Commission's Chicago
Office inspected the antenna structures of Radio Station WKBF.
At the time of the inspection, the paint on the antenna
structures was badly faded and sections of the towers had paint
missing, exposing the bare metal.
3. On August 7, 2002, the Chicago Office issued a Notice
of Violation (``NOV'') to Mercury for violation of FCC Rule
Sections 17.50 and 17.57, tower cleaning and repainting, and
ownership notification respectively.
4. On August 19, 2002, the Chicago Office received a
response to the NOV from Mercury's counsel. In their reply,
Mercury did not dispute the violations. Mercury provided
evidence that on August 14, 2002, they hired a contractor to
paint the WKBF towers, and had corrected the tower registration.
III. DISCUSSION
5. Section 17.50 requires antenna structures painting to
be cleaned or repainted as often as necessary to maintain good
visibility. At the time of the inspection, the paint on the
antenna structure was severely faded with paint missing and bare
metal exposed.
6. Section 17.57 requires the owner of a Registered
Antenna Structure to immediately notify the Commission of any
change in ownership information. At the time of inspection, the
tower was registered to a previous owner.
7. The Commission assesses monetary forfeitures pursuant
to Section 503(b) of the Communications Act of 1934, as amended,
(the ``Act'')2 as implemented in Section 1.80 of the Rules.3 A
forfeiture may be assessed against a person who the Commission
finds to have willfully4 and repeatedly5 failed to comply with
the provisions of the Act or the Rules. Forfeiture amounts are
decided in accordance with Section 503(b)(2) of the Act and the
Commission's forfeiture guidelines in Section 1.80(b)(4) of the
Rules.
8. Based on the evidence before us, we find that Mercury
willfully and repeatedly violated Sections 17.50 and 17.57 of the
Rules by failing to repaint the antenna structures as needed and
failing to notify the Commission upon change in ownership
information. Pursuant to 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''), the base forfeiture amount for failing to comply
with prescribed marking is $10,000, and for failure to file
required forms or information, $3,000. 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 (``ACT''), as amended, 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.6 After applying the Forfeiture Policy
Statement and the statutory factors to the instant case, we
believe a thirteen thousand dollar ($13,000) forfeiture is
warranted.
IV. ORDERING CLAUSES
9. 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,7 Mercury Broadcasting Company, Inc. is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of thirteen
thousand dollars ($13,000) for failing to repaint the antenna
structure as needed and failure to notify the Commission of
change in ownership information, in violation of Sections 17.50
and 17.57.
10. 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, Mercury Broadcasting Company, Inc. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
11. 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. 200332320004 and FRN 4995882.
12. 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.
20402 and MUST INCLUDE THE NAL/Acct. No. 200332320004 and FRN
4995882.
13. 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.
14. 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
15. 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.
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Mercury Broadcasting Company, Inc., 115
East Travis, San Antonio, TX 78205.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
District Director
Chicago Office
Attachment A: Condensed List of Small Entities
_________________________
1 47 C.F.R. §§ 17.50 and 17.57.
2 47 U.S.C. § 503(b).
3 47 C.F.R. § 1.80.
4 Section 312(f)(1), which also applies to Section 503(b),
provides: [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 provisions of the Act or any rule or
regulation of the Commission authorized by this Act or by a
treaty ratified by the United States. 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 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement,
12 FCC Rcd at 17100-01.
7 47 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.