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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AMFM Ohio, Inc. ) File Number EB-04-LA-108
)
Registrant of Antenna Structure ) NAL/Acct. No. 200532900003
San Bernardino, California ) FRN 0001656503
ASR # 1014752 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 06,
2005
By the District Director, Los Angeles District Office, Western
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that AMFM Ohio, Inc. ("AMFM Ohio"), registrant
of antenna structure # 1014752, in San Bernardino, California,
apparently repeatedly violated Section 303(q) of the
Communications Act of 1934, as amended, ("the Act"),1 and
Sections 17.21(a), 17.47 and 17.48 of the Commission's Rules
("Rules")2 by failing to comply with the antenna lighting,
monitoring and notification requirements specified for antenna
structure # 1014752. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended ("Act"),3 that
AMFM Ohio is apparently liable for a forfeiture in the amount
of ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 9, 2004, an agent from the Commission's Los
Angeles Office conducted an inspection of a three-tower array
located at 2255 E. Bessant Street, San Bernardino, California.
AMFM Ohio is the registered owner of the antenna structures.
AMFM Radio Licenses, L.L.C., the licensee of radio station
KKDD(AM), broadcasts using the three-tower array. All three of
the antenna structures in the array are required to have
"Obstruction Marking and Lighting" in accordance with
Paragraphs 1, 3, 12 and 21 of FCC Form 715/715A.4
Specifically, the structures are required to have a flashing
red beacon mounted on the top of the antenna structure.5 On
levels at approximately two-thirds and one-third of the overall
height of the structures, there is a requirement of at least
two red obstruction lights.6 The lights on the structures are
required to burn continuously or be controlled by a light
sensitive device.7 During the inspection on August 9, 2004,
the Los Angeles agent observed that the top beacon and one of
the four intermediate level side lights were not functioning on
tower number two of the array, antenna structure # 1014752, the
northern most, middle structure. 8 On August 10, 2004, the Los
Angeles agent contacted the Federal Aviation Administration
("FAA") and the FAA representative indicated that they had not
previously been notified of an outage for antenna structure #
1014752.9
3. On August 12, 2004, the Los Angeles agent re-inspected
antenna structure # 1014752. The agent again observed that the
antenna structure's top beacon and one of four intermediate
level side lights were not functioning.
4. On August 17, 2004, the Los Angeles agent called the
contact telephone number listed on the antenna structure
registration for antenna structure # 1014752 and notified the
contact engineer that the lights on antenna structure # 1014752
were not functioning properly. The contact engineer stated
that he would have the KKDD radio station engineer contact the
Los Angeles Office agent. When the KKDD engineer contacted the
Los Angeles agent on August 17, 2004, the Los Angeles agent
informed the KKDD engineer that the top beacon and one of the
side lights on antenna structure # 1014752 were not
functioning. The KKDD engineer stated that he was not aware of
a tower light outage on antenna structure # 1014752 and that
the remote automatic alarm system had not notified him of a
problem with the antenna lights.
5. On August 18, 2004, the Los Angeles Office agent
received an email from the KKDD engineer. In the email, the
KKDD engineer acknowledged a tower light failure on antenna
structure # 1014752 and stated that the light would be repaired
on August 19, 2004. The KKDD engineer also stated that the
remote automatic alarm system had some type of glitch that
reset system parameters back to the factory default settings.
The KKDD engineer also stated that the alarm had been
reprogrammed to correct the failure. On August 21, 2004, the
KKDD engineer notified the Los Angeles Office that, as of
August 20, 2004, all of the lamps on the tower had been
replaced and were working properly.
III. DISCUSSION
6. 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 thereunder,
shall be liable for a forfeiture penalty. The term "willful"
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.10 The term
"repeated" means the commission or omission of such act more
than once or for more than one day.11
7. Section 303(q) of the Act states that antenna structure
owners shall maintain the painting and lighting of antenna
structures as prescribed by the Commission.12 Part 17 of the
Rules is designed to promote air safety, by prescribing
regulations for antenna structures that constitute or that
potentially constitute "a menace to air navigation."13 Section
17.21(a) of the Rules states antenna structures shall be
painted and lighted when they exceed 60.96 meters (200 feet) in
height above the ground or they require special aeronautical
study.14 Antenna structure # 1014752 is assigned FCC lighting
specifications requiring that the structure have a red
obstruction beacon mounted at the top of the antenna structure
and at least two red obstruction lights on levels at
approximately two-thirds and one-third of the overall height of
structure. On August 9, 2004, an agent from the Commission's
Los Angeles Office observed that the top red beacon and one of
the four intermediate side lights were not functioning. On
August 12, 2004, the Los Angeles agent reconfirmed his
observations. On August 17, 2004, the Los Angeles Office agent
notified the engineer listed as the contact for the antenna
structure that the top red beacon and one of the four side
lights on antenna structure # 1014752 were not functioning.
The antenna structure engineer had the KKDD engineer contact
the Los Angeles agent and the KKDD engineer acknowledged that
he was not aware of the light outage. On August 18, 2004, the
Los Angeles Office agent received an email from the KKDD
engineer acknowledging the tower light failure on antenna
structure # 1014752.
8. Section 17.47(a)(1) of the Rules requires the owner of
any antenna structure which is registered with the Commission
and has been assigned lighting specifications to make an
observation of the antenna structure's lights at least once
every 24 hours either visually or by observing an automatic
properly maintained indicator designed to register any failure
of such lights.15 Alternatively, Section 17.47(a)(2) of the
Rules requires antenna structure owners to provide and properly
maintain an automatic alarm system designed to detect any
failure of such lights and to provide indication of such
failure to the owner. On August 17, 2004, the KKDD engineer
stated to a Los Angeles agent that the automatic alarm system
had not notified him of a problem with the lights on antenna
structure # 1014752. On August 18, 2004, the KKDD engineer
acknowledged that the remote automatic alarm system was not
functioning properly.
9. Section 17.48 of the Rules requires the owner of any
antenna structure which is registered with the Commission and
has been assigned lighting specifications to report immediately
by telephone or telegraph to the nearest Flight Service Station
(``FSS'') or office of the FAA any observed or otherwise known
extinguishment or improper functioning of any top steady
burning light or any flashing obstruction light, regardless of
its position on the antenna structure, not corrected within 30
minutes. The Commission agent observed the light outages on
antenna structure # 1014752 on August 9, 2004. On August 10,
2004, the agent contacted the FAA and a FAA representative
indicated that no outage for antenna structure # 1014752 had
been reported.
10. The tower light outages on
antenna structure # 1014752 began as early as August 9, 2004,
and perhaps earlier, and extended through August 19, 2004. It
appears that AMFM Ohio was not aware of the outages until
notified by a Commission agent on August 17, 2004, apparently
because AMFM Ohio repeatedly failed to effectively monitor the
lights on the tower. AMFM Ohio's lack of vigilance also,
apparently, resulted in its failure to notify the FAA with 30
minutes of the extinguishment of the obstruction lighting on
the antenna structure. Based on the evidence before us, we
find that AMFM Ohio apparently repeatedly violated Section
303(q) of the Act and Sections 17.21(a), 17.47, and 17.48 of
the Rules by failing to comply with the antenna structure
lighting, monitoring and notification requirements for its
antenna structure # 1014752.
11. 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"), and Section 1.80 of the Rules, the base forfeiture
amount for failing to comply with the prescribed lighting
and/or marking for antenna structure is $10,000.16 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 violations, and with
respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as
justice may require.17 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, we find
that AMFM Ohio is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
and Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's
Rules, AMFM Ohio, Inc., is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for violations of Section 303(q) of the Act,
and Sections 17.21(a), 17.47, 17.48 of the Rules.18
13. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Commission's Rules within thirty days of the
release date of this Notice of Apparent Liability for
Forfeiture, AMFM Ohio Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
14. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
15. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Los Angeles Office, 18000 Studebaker Rd., Suite 660, Cerritos,
California 90703 and must include the NAL/Acct. No. referenced
in the caption.
16. 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.
17. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.19
18. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to AMFM Ohio,
Inc.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles District Office
Western Region
Enforcement Bureau
_________________________
147 U.S.C. § 303(q).
247 C.F.R. §§ 17.21(a), 17.47, 17.48.
347 U.S.C. § 503(b).
4FCC Forms 715/715A, Paragraphs 1, 3, 12, 21.
5FCC Forms 715/715A, Paragraph 3.
6FCC Forms 715/715A, Paragraph 12.
7The light sensitive device shall be "adjusted so that the lights
will be turned on at a north sky light intensity level of about
35 foot candles and turned off at a north sky intensity of about
58 foot candles." FCC Forms 715/715A, Paragraph 21.
8This antenna structure is designated as tower two (3TA2) of a
three-tower transmitting array. The other towers of this array
are ASR # 1014751 & ASR # 1014753, also registered to AMFM Ohio.
9After the conversation with the Los Angeles agent on August 10,
2004, the FAA issued a Notice to Airmen ("NOTAM") advising pilots
of the light outage on the antenna structure.
10Section 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).
11Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
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."
1247 U.S.C. § 303(q).
1347 C.F.R. § 17.1(a).
1447 C.F.R. § 17.21(a). See Max Media of Montana, LLC, 18 FCC Rcd
21375 (2003). Antenna structure # 1014752 is 57.2 meters in
height. However, because of its proximity to the San Bernardino
International Airport, it has been assigned Obstruction Lighting
and Marking requirements.
1547 C.F.R. § 17.47(a)(1).
162 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999):
47 C.F.R. § 1.80.
1747 U.S.C. § 503(b)(2)(D).
1847 U.S.C. §§ 303(q), 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314,
1.80, 17.21(a), 17.47, 17.48.
19See 47 C.F.R. § 1.1914.