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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Entravision Communications )
Corporation File Numbers: EB-06-SD-047
)
Antenna Structure Registrant NAL/Acct. No. 200632940006
)
ASR No. 1015656 FRN 0001529627
)
Imperial, California
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 22, 2006
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Entravision Communications Corporation ("Entravision"), owner of
antenna structure #1015656 near Imperial, California, apparently
repeatedly violated Section 303(q) of the Communications Act of 1934,
as amended, ("Act"), and Sections 17.23 and 17.50 of the Commission's
Rules ("Rules") by failing to comply with painting and lighting
requirements specified for the antenna structure, and for failing to
ensure that the structure was repainted as often as necessary to
maintain good visibility. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended ("Act"), that Entravision
Communications Corporation is apparently liable for a forfeiture in
the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1015656 is an antenna tower of 114 meters (374
feet) in height above ground. Also, antennas for two FM Broadcast
stations, KMXX(FM), licensed to Imperial, California, and KSEH(FM),
licensed to Brawley, California, are located on the tower. According
to antenna structure #1015656's registration, the structure is
required to have "Obstruction Marking and Lighting" in accordance with
the applicable chapters of the Federal Aviation Administration ("FAA")
Advisory Circular Number 70/7460-1H. Specifically, the structure is
required to be painted and have obstruction lighting consisting of at
least one flashing red beacon on top and two or more steady-burning
red sidelights on opposite sides at the midpoint.
3. On March 17, 2006, an agent from the Enforcement Bureau's San Diego
Office observed that antenna structure #1015656 was not painted, but
had installed a daytime white strobe light system. During the day of
March 17, 2006, the San Diego agent observed that the top white strobe
light was not functioning. During the evening of March 17, 2006, the
nighttime red obstruction lights for the antenna structure were also
observed by the agent and found to be functioning properly.
4. The agent advised the staff of the San Diego Office, which in turn
contacted the FAA's Riverside Flight Service Station ("FSS"). The FSS
issued a 15 day Notice to Airmen ("NOTAM") and informed the San Diego
Office that no prior light outage report had been made for antenna
structure #1015656.
5. On March 20, 2006, the agent returned to the Imperial, California,
area and again inspected antenna structure #1015656. The agent
observed that the structure was not painted and that the top white
strobe light was not operational. The agent went to the studio
location for KMXX(FM) and KSEH(FM) in El Centro, California, and
discussed the tower lighting problem with the engineering staff of
Entravision. The agent examined the records for antenna structure
#1015656. A review of these records indicated that the top white
strobe on antenna structure #1015656 may have been experiencing
malfunctions since August, 2005.
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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
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. Section 17.23 of the rules requires that registered
antenna structures conform to the mandatory FAA painting and lighting
recommendations set forth on the FAA Notice issued to the structure
owner. The FAA Notice for antenna structure #1015656 requires that the
structure be painted and have obstruction lighting consisting of at
least one flashing red beacon on top and two steady-burning side
lights at the midpoint. Section 17.50 of the Commission's Rules states
that antenna structures requiring painting shall be cleaned or
repainted as often as necessary to maintain good visibility. On March
17, 2006, and March 20, 2006, a San Diego agent observed that antenna
structure #1015656 was not painted. Additionally, the top strobe white
light on the antenna structure was not functioning.
8. The specification of Chapter 3 of FAA Advisory Circular Number
70/7460-1H on the antenna structure registration for antenna structure
#1015656 requires that the antenna structure be painted with alternate
bands of aviation orange and white paint and that the bands be equal
in width and approximately one-seventh the height of the structure in
order to make the "structure more conspicuous to pilots during
daylight hours." Chapter 3 allows for alternatives to the prescribed
painting or marking, in the form of high or medium intensity white
lighting systems, provided the proposed alternative has received FAA
review and concurrence. Once the FAA has approved of the proposed
change, the antenna structure registrant must seek approval from the
Commission before implementing the change. There is no evidence that
Entravision received either FAA or Commission approval for its altered
painting and lighting. Entravision's failure to paint antenna
structure #1015656 occurred on more than one day, therefore, its
violation is repeated. Based on the evidence before us, we find that
Entravision Communications Corporation, apparently repeatedly violated
Section 303(q) of the Act, and Sections 17.23 and 17.50 of the Rules,
by failing to comply with painting and lighting requirements specified
for antenna structure #1015656, and for failing to ensure that the
structure was repainted as often as necessary to maintain good
visibility.
9. 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 an antenna structure is $10,000. 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 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. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, a $10,000
forfeiture is warranted.
IV. ORDERING CLAUSE
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's Rules, Entravision Communications Corporation
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 17.23 and 17.50 of the Rules.
11. 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, Entravision
Communications Corporation 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 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego Office, 4542
Ruffner St., Suite 370, San Diego, California 92111 and must include
the NAL/Acct. No. referenced in the caption.
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. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12^th Street, S.W., Washington, D.C. 20554.
16. 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 Entravision Communications
Corporation, 2425 Olympic Boulevard, Suite 6000 W, Santa Monica,
California 90404-4030.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director
San Diego Office
Western Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 C.F.R. SS 17.23, 17.50.
47 U.S.C. S 503(b).
Entravision Holding, LCC, a sister company to the antenna structure owner,
is the licensee of
KMXX(FM) and KSEH(FM).
See FAA Advisory Circular Number 70/7460-1H, Chapters 3, 4, 5 and 13.
Section 312(f)(1) of the Act, 47 U.S.C. S 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. S 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."
47 U.S.C. S 303(q).
47 C.F.R. S 17.23.
FAA Advisory Circular Number 70/7460-1H, Chapters 3, 4, 5, 13.
47 C.F.R. S 17.50.
FAA Advisory Circular Number 70/7460-1H, Chapter 3, Paragraphs 30, 33.
FAA Advisory Circular Number 70/7460-1H, Chapter 3, Paragraph 37.
Even if Entravision had received such approval, it would still be in
violation of Section 17.23, for failing to conform to the mandatory FAA
painting and lighting recommendations set forth on its FAA Notice, and
Section 17.51, 47 C.F.R. S 17.51, for failing to continuously exhibit
obstruction lighting, because the daytime white lighting system it
installed at the top of the antenna structure was not functioning on
either of the days the structure was observed by the San Diego agent.
Additionally, records concerning light extinguishments on antenna
structure #1015656 indicated that the daytime white strobe lighting on the
top of the structure may have been experiencing malfunctions since August,
2005.
12 FCC Rcd 17087(1997), Recon. Denied 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. SS 303(q), 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80, 17.23,
17.50.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission