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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-06-BF-024
Forever of PA, Inc. )
NAL/Acct. No.
Antenna Structure Registrant ) 200732280002
ASR # 1027115 ) FRN 0006161855
Hollidaysburg, PA )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 22, 2007
By the Resident Agent, Buffalo Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Forever of PA, Inc. ("Forever"), registrant of antenna structure
# 1027115, apparently willfully violated Sections 17.47, 17.48, and
17.51(a) of the Commission's Rules ("Rules") by failing to comply
with the antenna structure lighting, monitoring, and reporting
requirements specified for antenna structure # 1027115. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Forever is apparently liable for a forfeiture in
the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On February 21, 2006, the FCC's Buffalo Office received a report of a
light outage on antenna structure # 1027115. The light outage
initially was reported to the Federal Aviation Administration ("FAA")
by a pilot. An agent in the FCC's Buffalo Office searched the FAA's
database and found that a Notice to Airmen ("NOTAM") had not been
issued for structure # 1027115.
3. Later that day, an agent in the Buffalo Office searched the FCC's
Antenna Structure Registration ("ASR") database for antenna structure
# 1027115 and determined that the structure is owned by Forever. An
associated entity, Forever Broadcasting, LLC, is the licensee of FM
station WXXO, which broadcasts using antenna structure # 1027115.
According to the structure's FAA determination, the structure is
required to have "Obstruction Marking and Lighting" in accordance with
Paragraphs 3, 4, 5, and 13 of FAA Circular 70/7460-1J, which require,
inter alia, that the tower have a flashing red beacon on top of the
structure
4. On the evening of February 23, 2006, the agent attempted to inspect
the tower, but was unable to observe the top section of the structure
because of inclement weather. The agent returned to inspect the
structure before dawn on February 24, 2006, and observed that all
tower lights were functioning except for the top beacon light.
5. After observing the light outage on February 24, 2006, the agent went
later that morning to the offices of Forever, which are located at the
main studio for station WXXO. The agent met with the station's Chief
Engineer and the station's Market Manager, each of whom stated that he
was not aware of the light outage. The Chief Engineer provided the
agent with a written statement that he had observed all lights
illuminated on the evening of February 10, 2006 and the Market Manager
provided a similar written statement indicating that he had observed
all lights illuminated on the evening of February 14, 2006.
6. After meeting with the Chief Engineer and the Market Manager at the
station, the agent and the Chief Engineer returned to the tower site.
The Chief Engineer manually activated the tower lights and both the
agent and the Chief Engineer observed that all the tower lights were
functioning except for the top beacon. The Chief Engineer contacted
the operator on duty at the station, who stated that the automatic
light monitoring system indicated that all lights were illuminated.
The Chief Engineer admitted to the agent that he was aware that the
monitoring system was not designed to detect single light outages and
that a modification to the system would be necessary to allow the
detection of such single light outages. When the agent and the Chief
Engineer returned to the station, the Chief Engineer reported the
light outage to the FAA and a NOTAM was issued.
III. DISCUSSION
7. 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.
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. 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." Section 17.51(a) of the Rules provides that all red
obstruction lighting must be exhibited from sunset to sunrise. 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. 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.
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. Together, these rules are intended to ensure that
proper lighting is maintained on antenna structures, that a sufficient
monitoring system is in place, and that any light outages are
immediately reported to the FAA.
9. Before dawn on February 24, 2006, an agent in the Buffalo Office
observed that the top beacon on antenna structure # 1027115 was
extinguished. When the agent arrived at station WXXO on the morning of
February 24, 2006, the station's Chief Engineer and the Market Manager
stated that they were not aware of a light outage. The agent confirmed
the light outage later that morning when he visited the tower site
with the Chief Engineer. During the inspection of the tower site, the
Chief Engineer admitted to the agent that the automatic light
monitoring system was not capable of detecting single light outages
and that a modification was necessary to enable the system to detect
single light outages. Although the Chief Engineer and Market Manager
reported that they had observed the lights illuminated on February 10
and 14, respectively, there is no evidence that daily observations
were being made in order to detect any single light outages. It
appears that Forever knowingly installed a monitoring system that
could not detect single light outages and did not, in the alternative,
conduct daily observations. As a result, Forever failed to notify the
FAA within 30 minutes of the extinguishment of the obstruction
lighting on its antenna structure. Based on the evidence before us, we
find that Forever apparently willfully violated Section 303(q) of the
Act and Sections 17.47, 17.48, and 17.51(a) of the Rules by failing to
comply with the antenna structure lighting, monitoring and
notification requirements for its antenna structure # 1027115.
10. 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 violation of the prescribed lighting and/or
marking for 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
Forever apparently is liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
11. 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, Forever of PA, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of Sections
17.47, 17.48, and 17.51(a) of the Rules.
12. 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, Forever of PA, Inc. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
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, Buffalo Office, 6400
Sheridan Drive, Suite 140, Williamsville, NY 14221 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:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.
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 Forever of PA, Inc. at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
David Viglione
Resident Agent
Buffalo Office
Northeast Region
Enforcement Bureau
47 C.F.R. SS 17.47, 17.48, and 17.51(a).
47 U.S.C. S 503(b).
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).
47 U.S.C. S 303(q).
47 C.F.R. S 17.1(a).
47 C.F.R. S 17.47(a)(1).
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, 17.47, 17.48,
and 17.51(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
Federal Communications Commission
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Federal Communications Commission