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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-06-OR-025
Jamie Patrick Broadcasting, Ltd.
) NAL/Acct. No.:
Owner of Antenna Structure Located at 200632620001
Coordinates N32DEG 49' 06" x W091DEG )
54' 29" FRN: 006280242
)
Bastrop, Louisiana
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 2, 2006
By the District Director, New Orleans Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Jamie Patrick Broadcasting, Ltd. ("Patrick"), owner of antenna
structure located at coordinates N32DEG 49' 06" x W091DEG 54' 29" in
Bastrop, Louisiana, apparently willfully and repeatedly violated
Sections 17.4(a), 17.50, and 17.51 of the Commission's Rules ("Rules")
by failing to register its antenna structure, failing to repaint or
clean the structure to maintain good visibility, and failing to
exhibit required obstruction lighting. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Patrick is apparently liable for forfeiture in the amount of
thirteen thousand dollars ($13,000).
II. BACKGROUND
2. On July 26, 2001, the Commission's New Orleans Office of the
Enforcement Bureau ("New Orleans Office") issued to Patrick a Notice of
Violation notifying Patrick, among other violations of the Commission's
Rules, of its failure to register its antenna structure and its failure to
clean or repaint its antenna structure associated with station KTRY-FM in
Bastrop, Louisiana.
3. On June 14, 2006, in response to a complaint alleging numerous
violations at station KTRY-FM, an agent from the New Orleans Office
conducted an inspection of Patrick's antenna structure located at the
KTRY-FM transmitter and studio site at 5567 Yam Road, Bastrop, Louisiana.
The antenna structure is 290 feet in height above ground level and has the
KTRY-FM broadcast transmitting antenna as the only antenna on the
structure. The KTRY-FM station license specifies that the antenna
structure be painted and lighted with red lights at the top and at the
one-third and two-thirds levels of the structure. The agent observed that
the structure was painted but the condition of the paint had deteriorated
such that the bands were indistinguishable at a distance of 0.25 of a
mile, and the painted surfaces were badly chipped and rusted. The agent
observed no obstruction lighting operating during daylight hours. The
agent observed the structure for at least 90 minutes after local sunset
and found no lights exhibited on the structure during nighttime.
4. On June 15, 2006, the agent contacted the Federal Aviation
Administration's ("FAA") area Flight Service Station and determined no
report of the light outage had been made for this structure. The agent
provided the outage information to the FAA. The agent then repeated the
observations both during daytime and nighttime hours and found the
structure's marking and lighting conditions unchanged.
5. On June 16, 2006, the agent interviewed Mr. Henry Cotton, the
owner/chief operator of KTRY-FM. Mr. Cotton stated: the structure's lights
had been extinguished since February, 2006; he had reported the outage to
the FAA in February, 2006, but had never renewed the report; he could not
provide the NOTAM number; that he knew the structure needed painting, but
had trouble contracting someone to do the work; that the Antenna Structure
Registration ("ASR") number for the structure was 1204567. The agent
subsequently checked the Commission's ASR database and found the ASR
number provided by Mr. Cotton was assigned to another structure four miles
away and owned by a completely different entity not associated with
Patrick.
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 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 FAA must register the structure with the Commission. Section
17.7(a) of the Rules requires notification to the FAA for any construction
or alteration of more than 200 feet in height above ground level.
Patrick's antenna structure required notification to the FAA because the
structure exceeded 200 feet in height and, therefore, required Commission
registration. From at least July 2001 to June 16, 2006, Patrick failed to
register its antenna structure with the Commission. Therefore, this
violation was repeated. Patrick was officially notified in writing by the
Commission of this violation in 2001, yet Patrick took no official action
towards registering the structure. Therefore, this violation was willful.
8. 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 17.50 of the Rules requires antenna structures
requiring painting to be cleaned or repainted as often as necessary to
maintain good visibility. Section 17.21 of the Rules requires antenna
structures exceeding 200 feet in height above ground level to be painted.
Additionally, the KTRY-FM station license specifies painting and lighting
requirements for Patrick's antenna structure associated with the station.
Therefore, Patrick's antenna structure requires painting. From at least
July 2001 until June 16, 2006, Patrick failed to maintain good visibility
of its antenna structure. The agent observed the poor visibility of the
structure on June 14 and 15, 2006. Patrick's owner and chief operator
stated he knew of the structure's need for repainting. Additionally,
Patrick was officially notified in writing by the Commission of this
violation in 2001, yet Patrick took no action to correct it. Therefore,
this violation was willful and repeated.
9. Section 17.51 of the Rules requires that all red obstruction lighting
be exhibited from sunset to sunrise unless otherwise specified. Section
17.21 of the Rules requires antenna structures exceeding 200 feet in
height above ground level to be lighted. Additionally, the KTRY-FM station
license specifies painting and lighting requirements for Patrick's antenna
structure associated with the station, including the requirement for red
obstruction lighting. Therefore, Patrick is required to exhibit red
obstruction lighting on its structure from sunset to sunrise. From at
least February 2006 to June 15, 2006, Patrick failed to exhibit red
obstruction lighting on its structure. There was no evidence of proper
notification to the FAA of the light outage as required by Section
17.48(a) of the Rules. Patrick's owner and chief operator stated he knew
of the light outage since February 2006. Therefore, this violation was
willful and repeated.
10. Based on the evidence before us, we find that Patrick apparently
willfully and repeatedly violated Sections 17.4(a), 17.50, and 17.51 of
the Rules by failing to register its antenna structure, failing to
maintain good visibility of its antenna structure, and failing to exhibit
required obstruction lighting on its antenna structure located in Bastrop,
Louisiana.
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 file required forms is $3,000, and 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 to the instant case, we conclude that a $13,000 forfeiture is
warranted.
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, Jamie Patrick Broadcasting, Ltd. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount
of thirteen thousand dollars ($13,000) for violations of Sections 17.4(a),
17.50, and 17.51 of the Rules.
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, Jamie Patrick Broadcasting, Ltd.
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 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.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, New Orleans Office,
2424 Edenborn Avenue - Suite 460, Metairie, Louisiana 70001, 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:
Associate Managing Director -- Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
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 Jamie Patrick Broadcasting, Ltd., 5567 Yam Road,
Bastrop, Louisiana 71220.
FEDERAL COMMUNICATIONS COMMISSION
Leroy Hall
District Director
New Orleans Office
South Central Region
Enforcement Bureau
47 C.F.R. SS 17.4(a), 17.50, and 17.51.
47 U.S.C. S 503(b).
Patrick is licensee of KTRY-FM as well as owner of the property containing
the radio station including the antenna structure.
See FCC Form 715, PP 1, 3, 12, 21.
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 C.F.R. S 17.4(a).
47 C.F.R. S 17.7(a).
47 U.S.C. S 303(q).
47 C.F.R. S 17.50.
47 C.F.R. S 17.21.
47 C.F.R. S 17.51.
47 C.F.R. S 17.21.
47 C.F.R. S 17.48(a).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 17.4(a),
17.50, 17.51.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission