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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Multicultural Radio Broadcasting, )
Inc. File Number: EB-06-SF-276
)
Antenna Structure Registrant NAL/Acct. No.: 200732960001
)
ASR No. 1013937 FRN: 0005086368
)
Cutler, California
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 22, 2006
By the District Director, San Francisco Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Multicultural Radio Broadcasting, Inc. ("Multicultural"), owner
of antenna structure #1013937 near Cutler, California, apparently
repeatedly violated Section 303(q) of the Communications Act of 1934,
as amended, ("Act"), and Section 17.51 of the Commission's Rules
("Rules") by failing to exhibit the structure's red obstruction
lighting from sunset to sunrise. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Multicultural is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1013937 is an antenna tower of 90.6 meters (297.244
feet) in height above ground. It is tower four in a four-tower array
used by KWRU(AM) to serve Fresno, California. According to the antenna
structure registration ("ASR") for antenna structure #1013937, the
structure is required to have painting and lighting in accordance with
specific paragraphs of the Commission's "Obstruction Marking and
Lighting Specifications for Antenna Structures - FCC Form 715" ("FCC
Form 715"). Specifically, the structure is required to be painted, and
have, at its top, a flashing beacon equipped with two lamps and red
filters, along with at least two lamps enclosed in red obstruction
light globes located on levels at approximately two-thirds and
one-third of the overall height of the tower. The lights on antenna
structure #1013937 are required to burn continuously or be controlled
by a light sensitive device.
3. On October 4, 2006, the Enforcement Bureau's San Francisco Office
received a complaint that antenna structure #1013937, located near
Cutler, California was not lighted. An agent from the San Francisco
Office contacted the Federal Aviation Administration's Rancho Murrieta
Flight Service Station ("FSS") in Rancho Cordova, California. The FSS
issued a 15 day Notice to Airmen ("NOTAM") and informed the San
Francisco agent that no prior light outage report had been made for
antenna structure #1013937. The San Francisco agent then contacted the
Tulare County, California, Sheriff's Department and requested that a
deputy drive by antenna structure #1013937 that evening to determine
if the antenna array lights were extinguished. The Sheriff's
Department dispatcher contacted the San Francisco agent at
approximately 7:30 p.m. PDT on October 4, 2006, and reported that the
lights on antenna structure #1013937 were extinguished.
4. On October 5, 2006, the San Francisco agent drove to the Cutler,
California, area and inspected antenna structure #1013937. During the
evening of October 5, 2006, the agent observed that the nighttime red
obstruction lights for the antenna structure were not functioning.
5. On October 6, 2006 the agent went to the studio location for KWRU(AM)
in Fresno, California, and discussed the tower lighting problem with
the staff of Multicultural. The agent examined the records and found
no prior log entries concerning any lighting outages on antenna
structure #1013937. The KWRU(AM) engineer indicated to the agent that
the outage may have been caused by a transformer failure.
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 17.51 of the Rules states that all red
obstruction lighting shall be exhibited from sunset to sunrise unless
otherwise specified. According to its ASR, antenna structure #1013937
is required to have, at its top, a flashing beacon equipped with two
lamps and red filters, along with at least two lamps enclosed in red
obstruction light globes located on levels at approximately two-thirds
and one-third of the overall height of the tower. On October 4, 2005,
the Tulare County, California, Sheriff's Department observed that the
red obstruction lighting on antenna structure #1013937 was not
functioning. The next evening, on October 5, 2006, a San Francisco
agent also observed that the red obstruction lighting on antenna
structure #1013937 was not functioning.
8. Multicultural's failure to light antenna structure #1013937 occurred
on more than one day, therefore, its violation is repeated. Based on
the evidence before us, we find that Multicultural apparently
repeatedly violated Section 303(q) of the Act, and Section 17.51 of
the Rules, by failing to exhibit the structure's red obstruction
lighting from sunset to sunrise.
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 to this case, we
conclude Multicultural is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
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, Multicultural Radio Broadcasting,
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 Section 17.51 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, Multicultural Radio
Broadcasting, 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 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 Francisco Office,
5653 Stoneridge Drive, Suite 105, Pleasanton, California, 94588-8543,
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 Multicultural Radio Broadcasting,
Inc., 449 Broadway, New York, New York 10013-2549.
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. VanStavern
District Director
San Francisco Office
Western Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 C.F.R. S 17.51.
47 U.S.C. S 503(b).
Multicultural Radio Broadcasting Licensee LLC, is the licensee of
KWRU(AM).
FCC Form 715, Paragraphs 1, 3, 12, and 21.
FCC Form 715, Paragraph 1.
FCC Form 715, Paragraph 3.
FCC Form 715, Paragraph 12.
FCC Form 715, Paragraph 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 U.S.C. S 303(q).
47 C.F.R. S 17.51.
FCC Form 715, Paragraph 3.
FCC Form 715, Paragraph 12.
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, 17.51.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission