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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-TP-457
)
WGUL-FM, Inc. ) NAL/Acct. No.200432700012
Owner of Antenna Structure )
Registration Number 1027884 in ) FRN 0005815832
Lecanto, Florida )
Palm Harbor, Florida
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 8, 2004
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture, we find WGUL-FM, Inc., (``WGUL''), owner of
antenna structure 1027884 in Lecanto, Florida, willfully and
repeatedly violated Section 17.51(a) and Section 17.57 of
the Commission's Rules (``Rules'')1 by failing to exhibit
red obstruction lighting on structure #1027884 from sunset
to sunrise and failing to immediately notify the Commission
upon any change in ownership information. We conclude that
WGUL is apparently liable for a forfeiture in the amount of
thirteen thousand dollars ($13,000).
II. BACKGROUND
2. WGUL owns antenna structure #1027884 located in
Lecanto, Florida. The structure's Antenna Structure
Registration (``ASR'') specifies that the structure be
painted and lit with red obstruction lighting.
3. On December 1, 2003, agents from the FCC
Enforcement Bureau, Tampa Office observed that structure
1027884 was not illuminated per its assigned painting and
lighting specifications in that the top and ½ level red
beacons were extinguished during nighttime hours. On
December 1, 2003, an FCC agent contacted the Federal
Aviation Administration (``FAA'') who confirmed that a light
outage on this structure had not been reported by the
structure owner.
4. On December 3, 2003, agents from the FCC
Enforcement Bureau, Tampa Office observed that structure
1027884 was not illuminated per its assigned painting and
lighting specifications in that the top and ½ level red
beacons were extinguished during nighttime hours.
5. On December 11, 2003 an agent from the FCC
Enforcement Bureau Tampa Office spoke with the station
engineer from WXOF(FM) regarding the ownership of antenna
structure 1027884.2 The station's engineer confirmed that
the owner currently listed in the FCC Antenna Structure
Registration database was the previous owner of the
structure and that WGUL-FM Inc. is the current owner. The
engineer stated that the station reported the light outage
to the FAA on December 8, 2003. As of January 7, 2004, the
FCC Antenna Structure Registration database still had not
been updated with current ownership information. On March
3, 2004, the engineer for WGUL-FM Inc. confirmed to the
agent that WGUL-FM Inc. owned the structure.
· III. DISCUSSION
6. Section 17.51(a) requires that all red obstruction
lighting shall be exhibited from sunset to sunrise unless
otherwise specified. On December 1, and 3, 2003 WGUL failed
to exhibit red obstruction lighting on antenna structure
1027884 in accordance with its registration requirements. In
addition, WGUL failed to notify the FAA of the light outage
until December 8, 2003. 3
7. Section 17.57 requires that the owner must
immediately notify the Commission upon any change in
structure height or change in ownership information. From
at least December 1, 2003 to January 7, 2004, the FCC
Antenna Structure Registration database reflected Heart of
Citrus, Inc. as the current owner of antenna structure
1027884.
8. Based on the evidence before us, we find WGUL
willfully4 and repeatedly5 violated Sections 17.51(a) and
17.57 of the Rules by failing to exhibit tower lights on
structure 1027884 and failing to immediately notify the
Commission upon any change in ownership information.
9. Pursuant to Section 1.80(b)(4) of the Rules,6 the
base forfeiture amount for failure to exhibit red
obstruction lighting is $10,000. The base amount for failure
to file required forms or information is $3,000, 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 or prior offenses, ability to pay, and other such
matters as justice may require.''7 Considering the entire
record and applying the factors listed above, this case
warrants a $13,000 forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,8 and Sections 0.111, 0.311 and
1.80 of the Rules,9 WGUL-FM, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of
thirteen thousand dollars ($13,000) for willful and repeated
violation of Sections 17.51(a) and 17.57 of the Rules by
failing to exhibit obstruction lighting on structure 1027884
and failing to immediately notify the Commission upon any
change in ownership information.
11. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules10, within thirty days of the release date
of this Notice of Apparent Liability, KGUL-FM, 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. 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. 20554.11
13. 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-
Spectrum Enforcement Division, and MUST INCLUDE THE NAL/and
FRN referenced in the letterhead above.
·
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. 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 Spectrum
Enforcement 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 regular mail and
Certified Mail Return Receipt Requested to WGUL-FM, Inc.,
35048 US Highway 19, North, Palm Harbor, FL 34684.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director - Tampa Office
Enforcement Bureau
_________________________
1 47 C.F.R. §§ 17.51(a) and 17.57.
2 Station WXOF(FM) utilizes this antenna structure as part
of its station. WGUL-FM Inc. is licensee of station
WXOF(FM) in addition to owning the antenna structure.
3 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).
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 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies equally to Section 503(b) of the Act, provides that
``[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. § 1.80(b)(4).
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 1.80
11 See 47 C.F.R. § 1.1914.