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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Dead Air Broadcasting Company, ) File Number: EB-03-ST-090
Inc. )
) NAL/Acct. No. 200432980001
Owner of Unregistered Antenna ) FRN 0010640480
Structure )
Dillon, Montana
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 29,
2004
By the District Director, Seattle Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Dead Air Broadcasting
Company, Inc. ("Dead Air"), licensee of AM radio station
KDBM and owner of an unregistered antenna structure in
Dillon, Montana, apparently willfully and repeatedly
violated Section 17.4(a) of the Commission's Rules
(``Rules'') by failing to register the antenna structure.1
We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended,2 that Dead Air is
apparently liable for a forfeiture in the amount of three
thousand dollars ($3,000).
II. BACKGROUND
2. On May 16, 2002, an agent from the Seattle
District Office conducted an inspection of AM radio station
KDBM. At the time of the inspection, no antenna structure
registration number was displayed at the base of the
structure. The structure is approximately 80 meters in
height (265 feet) and is required to be lighted and painted.
The structure is located at 45°14'13'' north latitude and
112°38'32'' west longitude. At the time of the inspection,
the Vice President for Dead Air could not locate or produce
a registration for the subject tower. The structure is
owned by Dead Air, the licensee of KDBM.
3. On June 13, 2002, the Seattle District Office
issued a Notice of Violation (``NOV'') to Dead Air, for
violation of Section 17.4(g) of the Commission's Rules, for
failure to post the ASR number at the base of the structure.
4. On June 27, 2002, the Seattle District Office
received a response to the NOV. The response stated that
following an extensive review of the files, no current
Antenna Structure Registration number had been found.
Evidence was found that the previous owners filed an ASR
application in 1998, but Dead Air had no confirmation that
it was received. The response further stated that Dead Air
would apply for an ASR number and post it in accordance with
the Rules.
5. On August 9, 2002, Dead Air submitted a supplement
to the June 24, 2002, reply to the NOV, and stated that Dead
Air had completed a new FCC Form 854 that duplicated the
original registration that was submitted by the previous
owners on October 28, 1996.
6. On March 26, 2003, agents from the Seattle
District Office conducted an inspection of the KDBM
transmitter site. At the time of the inspection, no
antenna structure registration number was displayed at the
base of the structure.
7. A follow-up search of the Antenna Structure
Registration database on April 3, 2003, and April 4, 2003,
revealed no registration for the antenna structure.
8. On October 22, 2003, agents from the Seattle
District Office conducted an inspection of the KDBM
transmitter site. At the time of the inspection, no
antenna structure registration number was displayed at the
base of the structure.
9. A follow-up search of the Antenna Structure
Registration database on February 3, 2004, revealed no
registration for the antenna structure.
III. DISCUSSION
10. Section 503(b) of the Act provides that any person
who willfully or repeatedly fails to comply substantially
with the terms and conditions of any license, or willfully
or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the
Commission there under, shall be liable for a forfeiture
penalty.3 The term "willful" as used in Section 503(b) has
been interpreted to mean simply that the acts or omissions
are committed knowingly and the term "repeated" means the
commission or omission of the Act more than once or for more
than one day.4
11. Generally, the Rules require that antenna
structures that are greater than 200 feet in height comply
with painting and lighting specifications designed to ensure
air safety.5 Antenna structure owners must register antenna
structures with the Commission and post ASR numbers at the
base of antenna structures to allow for easy contact if
problems arise.6 The Rules requiring antenna structure
registration for all antenna structures that may pose a
hazard to air navigation have been in effect since 1996.7
The Commission has repeatedly advised antenna structure
owners that all existing, unregistered antenna structures
subject to the Rules must be registered immediately or the
owners will face a monetary forfeiture or other enforcement
action.8
12. Specifically, Section 17.4(a) of the Rules
requires that the owner of any proposed or existing antenna
structure that requires notice of proposed construction to
the Federal Aviation Administration must register the
structure with the Commission. Dead Air owns the antenna
structure used by AM radio station KDBM in Dillon, Montana.
This structure requires notice of proposed construction, and
therefore, Commission registration, because the structure's
height exceeds 200 feet.9 Dead Air is aware of the
responsibility and obligation to register the antenna
structure. Dead Air received a Notice of Violation in June
of 2002, for failing to register the structure and Dead
Air's President represented to the Commission in June of
2002, that the structure would be registered. As of
February 3, 2004, the antenna structure had not been
registered.
13. Based on the evidence before us, we find that Dead
Air apparently willfully and repeatedly violated Section
17.4(a) of the Rules by failing to register its antenna
structure with the Commission.
14. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement'')10 and Section 1.80 of the Rules,11 the base
forfeiture amount for failure to file required forms or
information (e.g., failure to file an antenna registration
form) is $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 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.12
Considering the entire record and applying the factors
listed above, this case warrants a $3,000 forfeiture.
ORDERING CLAUSES
15. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,13 and Sections 0.111, 0.311 and
1.80 of the Rules,14 Dead Air Broadcasting Company, Inc., is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of three thousand dollars ($3,000) for willful
and repeated violation of Section 17.4(a) of the Rules by
failing to register its antenna structure with the
Commission.15
16. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Dead Air 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.
17. . 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. 20554.16.
18. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street S.W., Washington D.C. 20554, Attn: Enforcement
Bureau-Spectrum Enforcement Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
19. 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.
20. 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.
21. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail,
Return Receipt Requested, and regular mail, to Dead Air
Broadcasting Company, Inc., 610 North Montana, Dillon,
Montana 59725.
FEDERAL COMMUNICATIONS
COMMISSION
Dennis Anderson
District Director, Seattle
Office
Enclosure: FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. § 17.4(a).
2 47 U.S.C. § 503(b).
3 47 U.S.C. § 503(b).
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 or any rule or
regulation of the Commission authorized by this Act...."
See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991). Section 312(f)(2) of the Act, 47 U.S.C. §
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."
5 47 C.F.R. § 17.21.
6 47 C.F.R. § 17.4.
7 Antenna structure owners were required to register
existing antenna structures during a two-year filing period
between July 1, 1996 and June 30, 1998, and to register new
antenna structures prior to construction. Streamlining the
Commission's Antenna Structure Clearance Procedure, 11 FCC
Rcd 4272 (1995).
8 Subsequent to the expiration of the filing period, the
Commission staff issued a Public Notice warning antenna
structure owners to register any unregistered antenna
structures subject to our requirements immediately or face
possible monetary forfeitures or other enforcement action.
Public Notice, ``No?Tolerance Policy Adopted for
Unregistered Antenna Structures,'' 1999 WL 10060 (WTB rel.
Jan. 13, 1999). In addition, in June and July 1999, the
Wireless Telecommunications Bureau sent letters to licensees
informing them that the Commission had no valid registration
for their antenna site and that owners and, to the extent
they were liable, tenants could face monetary forfeitures
for antenna structures that remained unregistered.
9 47 C.F.R. § 17.7(a).
10 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303
(1999).
11 47 C.F.R. § 1.80.
12 47 U.S.C. § 503(b)(2)(D).
13 47 U.S.C. § 503(b).
14 47 C.F.R. §§ 0.111, 0.311, 1.80.
15 47 C.F.R. § 17.4(a).
16 47 C.F.R. § 1.1914.