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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Steven A. Roy
)
Personal Representative, File Numbers: EB-06-PL-008
)
Estate of Lyle Evans NAL/Acct. No. 200732420001
)
Antenna Structure Registrant FRN 0015223530
)
Antenna Structure # 1059331
)
Stephenson, Michigan
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 25, 2007
By the Resident Agent, St. Paul Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Steven A. Roy ("Roy"), Personal Representative for the Estate of
Lyle Evans ("Evans"), registrant of antenna structure #1059331 in
Stephenson, Michigan, apparently willfully and repeatedly violated
Section 303(q) of the Communications Act of 1934, as amended, ("the
Act"), and Section 17.51(a) of the Commission's Rules ("Rules") by
failing to exhibit all red obstruction lighting on antenna structure #
1059331 from sunset to sunrise. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that Roy
is apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1059331 is located on County Highway 553, 1.59
miles south of Bark River, Michigan. The structure is 145.9 meters
(479 feet) in height above ground. Station WMGX, which is licensed to
Escanaba License Corp. ("Escanaba"), transmits from the top of the
structure. According to the antenna structure registration, the
structure is required to have "Obstruction Marking and Lighting" in
accordance with paragraphs 3, 4, 5, and 13 of Federal Aviation
Administration ("FAA") Circular Number 70/7460-1J. Specifically, the
structure is required to be painted and have obstruction lighting
consisting of a flashing red beacon on top and a flashing red beacon
at the midpoint. In addition, two or more steady-burning sidelights on
opposite sides of the structure are required at each the one-fourth
and three-fourths heights of the structure.
3. On August 23, 2006, the Commission's Communications and Crisis
Management Center ("CCMC) received a complaint from an individual at
the 911 Center in Wilson, Michigan, advising CCMC that the lights were
out on antenna structure # 1059331. According to the complainant, the
lights on the structure had been out for more than one year. Over the
next two weeks, CCMC staff unsuccessfully attempted to contact the
station. When CCMC staff finally reached a station representative on
September 13, 2006, CCMC staff was advised that the lights had been
out for three months. The station representative assured CCMC staff
that the FAA had been properly notified. Later that day, CCMC staff
spoke with the complainant, who stated that she previously had
contacted the FAA regarding the extinguished tower lights, but that
the prior Notices to Airmen ("NOTAM") issued by the FAA had expired.
The complainant further reported, however, that she had contacted the
FAA that day and another NOTAM had been issued.
4. On September 20, 2006, at 10:45 p.m., a resident agent in the
Commission's St. Paul, Minnesota Office observed that there were no
obstruction lights visible on antenna structure #1059331. The next
day, the agent conducted an inspection at the station and observed
that the flashing mechanism on the antenna structure appeared to have
been damaged by lightning and there appeared to be a missing part. The
agent determined that the flashing mechanism was designed for red
lights at night and white strobes during the daytime.
5. During the inspection, the agent spoke with the station's general
manager, who stated that the lights had been out since before March 6,
2006, the date on which the prior owner, Evans, had died. The general
manager stated to the agent that he remembered telling Mr. Evans about
the light outage prior to his death on March 6, 2006. The Office
Assistant also reported to the agent that she remembered Mr. Evans
being told about the tower light outage prior to his death. The
general manager stated that he believed the FAA was notified about the
outage at that time, but he could not produce any record of such
notification. The general manager also stated that Roy was advised of
the tower light outage.
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.^7 The term "repeated" means the commission or omission of
such act more than once or for more than one day.^8
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.^9 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."^10 Section 17.51(a) of the Rules requires that all red
obstruction lighting be exhibited from sunset to sunrise unless
otherwise specified. On September 20 and 21, 2006, an agent observed
that the red obstruction lights were not illuminated on antenna
structure # 1059331. Station personnel reported that they were aware
of the light outage since prior to March 6, 2006, and that Roy had
been advised of the tower light outage after Evans's death. Because
Roy was aware of the tower light outage and failed to take action to
repair the lights, we find that the violation was willful. The
violation occurred for more than one day, therefore the violation was
repeated. Accordingly, based on the evidence before us, we find that
Roy apparently willfully and repeatedly violated Section 17.51 of the
Rules.
8. 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"),^16 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,^17 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.
9. As of January 11, 2007, the top strobe light on the antenna structure
remained extinguished. Roy is directed to file within thirty (30) days
a report detailing the status of the antenna structure's lights and
the timeframe for bringing the structure into full compliance with the
applicable FAA requirements.
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, Steven A. Roy, Personal Representative
for the Estate of Lyle Evans, is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for violation of Section 303(q) of the Act, and Section
17.51 of the Rules.^18
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, Steven A. Roy, Personal
Representative for the Estate of Lyle Evans, SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. IT IS FURTHER ORDERED that Steven A. Roy, Personal Representative for
the Estate of Lyle Evans, SHALL FILE within thirty (30) a status
report as directed in paragraph 9 infra.
13. 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Chicago Office, 1550
Northwest Highway, Room 306, Park Ridge, IL 60068 and must include the
NAL/Acct. No. referenced in the caption.
15. 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.
16. 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.^19
17. 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 Steven A. Roy, Personal Representative
for the Estate of Lyle Evans., Attention To: Jeffery Jaekels, Esq.,
P.O. Box 22250, Green Bay, WI 54305-2250.
FEDERAL COMMUNICATIONS COMMISSION
Albert S. Jarratt, Jr.
Resident Agent
St. Paul Office
Northeast Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 U.S.C. S 503(b).
Prior to his death on March 6, 2006, Evans was the sole shareholder of
Escanaba License Corp. Roy assumed control of Escanaba on June 19, 2006,
when the transfer of control from Evans to Roy was consummated. In
addition, on January 12, 2007, Roy filed with the FCC an Application for
Antenna Structure Registration to report the change in ownership of
antenna structure #1059331 from Evans to Roy.
See FAA Circular Number 70/7460-1J, Chapters 3, 4, 5, 13.
On June 19, 2006, the transfer of control of Escanaba License Corp. from
Lyle Evans to Stephen A. Roy, Personal Representative, Estate of Lyle
Evans, was consummated. On January 12, 2007, Roy filed an Application for
Antenna Structure Registration to reflect the change in ownership of
antenna structure # 1059331 from Evans to Roy, as Personal Representative
for the estate of Lyle Evans.
^7 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).
^8 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."
^9 47 U.S.C. S 303(q).
^10 47 C.F.R. S 17.1(a).
47 C.F.R. S 17.51(a).
^1612 FCC Rcd 17087(1997), Recon. Denied 15 FCC Rcd 303 (1999).
^1747 U.S.C. S 503(b)(2)(D).
^18 47 U.S.C. SS 303(q), 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80, 17.51.
^19 See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission