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 )
)
Exosphere Broadcasting, LLC ) File No. EB-03-TP-
178
Owner of Antenna Structure Registration ) NAL/Acct. No.:
200432700009
Number 1027312 ) FRN: 0003-4746-40
Saint Augustine, Florida )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 4, 2004
By the Enforcement Bureau, Tampa Office:
I. Introduction
1. In this Notice of Apparent Liability for forfeiture
(``NAL''), we find Exosphere Broadcasting, LLC, (Exosphere),
owner of antenna structure ASR #1027312 in Saint Augustine,
Florida, apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000) for willful and repeated violation of
Sections 17.50 and 17.51 of the Commission's Rules (``Rules'').1
Specifically, we find Exosphere apparently liable for failing to
maintain good visibility of the required antenna structure
obstruction marking and failing to exhibit obstruction lighting
from sunset to sunrise.
II. Background
2. On April 3, 2003, two agents from the Commission's
Tampa Field Office inspected
Exosphere's antenna structure #1027312, located at 29º 51' 01.0''
North Latitude, 081º 19' 49.0'' West Longitude, Saint Augustine,
Florida. The agents observed that the antenna structure paint
was faded and obstructed by cables attached to the structure,
resulting in poor visibility of the structure markings. A
representative from the radio stations that utilize the structure
for their antennas, WFOY-AM and WAOC-AM, stated that the top
beacon on the antenna structure had been extinguished since
approximately March 30, 2003, and that he notified an Exosphere
representative about the light outage on that date.
3. On the same date, at approximately 10:21 P.M. the FCC
agents observed the structure lighting and verified the top
beacon on the antenna structure was extinguished. One of the
agents contacted the Federal Aviation Administration (``FAA'')
and determined that the FAA had not been notified of the light
extinguishment.
4. On April 4, 2003, one of the agents interviewed Mr.
Jerry Smith, a representative of Exosphere Broadcasting, LLC, who
confirmed ownership of the structure. Mr. Smith stated that, on
March 30, 2003, a representative of the broadcast stations that
use the structure notified him of the light outage, but he did
not notify the FAA. Mr. Smith also acknowledged that the
structure needed painting and stated the structure would be
repainted as soon as possible.
III. Discussion
5. Section 17.50 of the Rules states that antenna
structures requiring painting shall be cleaned or repainted as
often as necessary to maintain good visibility. The antenna
structure owner is responsible for maintaining the structure's
painting.2 Exosphere is the registered owner of antenna
structure #1027312. This structure is required to be painted and
exhibit red obstruction lights at night pursuant to Federal
Aviation Administration specifications, the structure's ASR, and
FCC rules.3 From at least April 3 through 4, 2003, the paint on
the structure was faded and obstructed by cables attached to the
structure, resulting in poor visibility of the structure
markings. Section 17.51 of the Rules requires that red
obstruction lighting be exhibited from sunset to sunrise.
Exosphere Broadcasting, LLC failed to exhibit the required lights
on its antenna structure from at least March 30 to April 3, 2003.
In addition, Exosphere Broadcasting, LLC failed to immediately
notify the FAA of the improper functioning of the structure's
lighting.4
6. Based on the evidence before us, we find that Exosphere
Broadcasting, LLC repeatedly5 and willfully6 violated Sections
17.50 and 17.51 of the Rules by failing to maintain good
visibility of the required antenna structure obstruction marking
and by failing to exhibit required obstruction lighting on its
antenna structure between sunset and sunrise.
7. Pursuant to Section 1.80(b) (4) of the Rules, the base
forfeiture amount for failure to comply with prescribed antenna
structure lighting and/or markings is $10,000.7 Section
503(b)(2)(D) of the Communications Act of 1934, as amended
(``Act''), requires us to take into account ``...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 such other matters as
justice may require.''8 Considering the entire record and
applying the statutory factors listed above, this case warrants a
$10,000 forfeiture.
IV. Ordering Clauses
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act9 and Sections 0.111, 0.311 and 1.80 of the
Rules,10 Exosphere Broadcasting, LLC, is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of $10,000 for
willful and repeated violation of Sections 17.50 and 17.51 of the
Commission's Rules.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release of this
NAL, Exosphere Broadcasting, LLC, SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10. Payment of the forfeiture may be made by 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 note the
FRN and NAL/Acct. No. referenced in the letterhead above.
Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Federal Communications
Commission, Chief, Revenue and Receivables Operations Group, 445
12th Street, SW, Washington, D.C. 20554.11
11. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, D.C. 20554, Attn: Spectrum Enforcement
Division, and must include the FRN and NAL/Acct. No. referenced
in the letterhead above.
12. 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.
13. 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.
14. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail, Return Receipt
Requested, to Exosphere Broadcasting, LLC, 567 Lewis Point
Extension, Saint Augustine, Florida 32086.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
_________________________
1 47 C.F.R. §§ 17.50 and 17.51.
2 See 47 C.F.R. § 17.6(a).
3 See 47 C.F.R. §§ 17.21, 17.22, and 17.23.
4 Owners of registered antenna structures with assigned lighting
must immediately report to the FAA any known improper functioning
of any top or flashing light. See 47 C.F.R. § 17.48(a).
5 The 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.'' 47 U.S.C. §
312(f)(2).
6 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).
7 47 C.F.R. § 1.80(b)(4).
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, and 1.80.
11 See 47 C.F.R. § 1.1914.