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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Siga Broadcasting Corporation
) File Number EB-06-HU-091
Licensee of Station KTMR
) NAL/Acct. No. 200732540002
Edna, Texas
) FRN 0003790425
Facility ID # 28191
)
Owner of Antenna Structure #1232021
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 21, 2007
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Siga Broadcasting Corporation ("Siga Broadcasting"), licensee of
station KTMR, in Edna, Texas and owner of antenna structure #1232021,
apparently willfully and repeatedly violated Sections 17.51(a) and
73.1745(a) of the Commission's Rules ("Rules") by failing to exhibit
red obstruction lights from sunset to sunrise and by operating the
station after local sunset, and apparently repeatedly violated Section
73.49 of the Rules by failing to enclose an antenna tower with radio
frequency potential at the base within an effective locked fence. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Siga Broadcasting is apparently liable
for a forfeiture in the amount of twenty-one thousand dollars
($21,000).
II. BACKGROUND
2. On December 11, 2006, in response to a complaint that the station was
remaining on the air after sunset, an agent with the Commission's
Houston Office of the Enforcement Bureau ("Houston Office") inspected
the transmitter site for station KTMR in Edna, Texas. At the
transmitter site, the agent observed a three-tower directional array,
which was of the type that normally has radio frequency potential at
the bases. Each of the three antenna structures was enclosed within a
fence. Although the gate had a padlock, the agent observed that the
gate latching mechanism for one of the fences had separated from the
gate and would not hold the gate closed. The property for the
transmitter site did not have a perimeter fence. After sunset on
December 11, 2006, the agent observed that the red obstruction light
on the top of antenna structure #1232021 was not operating. All three
of station KTMR's structures are greater than 200 feet in height, are
registered with the Commission, and require red obstruction lighting.
The agent telephoned the Federal Aviation Administration ("FAA") and
was told that no Notice to Airmen ("NOTAM") had been issued for
structure #1232021. The agent also monitored the station's
transmissions and observed that it was transmitting, with full daytime
power, when he left the area at 6:15 PM local time. Station KTMR is
only authorized as a daytime station, and for the month of December,
must cease operations at 5:30 PM local time.
3. On December 15, 2006, the agent with the Houston Office returned to
the station KTMR's transmitter site and found the situation unchanged.
The gate on one antenna structure's fence was not secured and could
easily be opened to allow access to the base of the structure. After
dark, a red obstruction light at the top of antenna structure #1232021
was not operating. The agent contacted the FAA, and the FAA still had
no record of a NOTAM issued for this structure. The agent monitored
the station's transmissions and heard the station go off the air at
about 7:00 PM local time. At the time the station went off the air, it
was operating at full daytime power.
4. On December 19, 2006, the agent from the Houston Office once again
returned to the transmitter site of station KTMR. The agent observed
that the gate on the structure fence was in the same condition as on
December 11 and 15. The agent then confirmed using a relative radio
frequency meter that all three antenna structures had radio frequency
potential at their bases. The agent then inspected the main studio for
station KTMR in Victoria, Texas. Personnel present admitted that the
station normally operated from about 6:30 AM to 7:00 PM daily. He
further admitted that no one from the station observed the tower
lights at least once every 24 hours and that the station had not
installed an automatic light monitoring system. Finally, he stated was
not aware that any lights on any of the towers were malfunctioning.
III. DISCUSSION
5. 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.
6. Section 17.51(a) of the Rules requires that red obstruction lighting
shall be exhibited from sunset to sunrise unless otherwise specified.
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. Siga Broadcasting is the registered owner of antenna
structure #1232021 and the licensee of station KTMR. On December 11
and 15, 2006, a red obstruction light on antenna structure #1232021
was extinguished after sunset, and no NOTAM had been issued. Personnel
present at the main studio admitted that no one from the station
observed the antenna structure on a daily basis and that the station
had not installed an automatic alarm system.
7. Section 73.49 of the Rules requires that antenna towers having radio
frequency potential at the base must be enclosed within effective
locked fences or other enclosures. However, individual tower fences
need not be installed if the towers are contained within a protective
property fence. On December 11, 15, and 19, 2006, the gate of the
fence surrounding one of station KTMR's antenna structures was not
secured and could be easily opened, providing ready access to the base
of the structure. This antenna structure was confirmed to have radio
frequency at the base. There was no perimeter fence around the
property. Therefore, the antenna structure was not enclosed within an
effective locked fence or protective property fence.
8. Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times, or with modes or power, other than those specified
and made a part of the license, unless otherwise provided in this
part. Station KTMR is only authorized to operate from 7:15 AM until
5:30 PM in December. On December 11 and 15, 2007, station KTMR
operated after 5:30 PM. Personnel present at the station confirmed
that the station operated on a daily basis until 7:00 PM.
9. Based on the evidence before us, we find that Siga Broadcasting
apparently willfully and repeatedly violated Sections 17.51(a) and
73.1745(a) of the Rules by failing to exhibit red obstruction lights
from sunset to sunrise and by operating station KTMR at times not
authorized by the terms of the station authorization. Additionally,
Siga Broadcasting apparently repeatedly violated Section 73.49 of the
Rules by failing to enclose a tower with radio frequency potential at
the base within an effective locked fence or other enclosure.
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 failing to comply with prescribed lighting
or marking is $10,000, and violation of AM tower fencing is $7,000.
Although Section 1.80 does not specify a base forfeiture amount for
operation at unauthorized times, this violation is comparable to
operation at an unauthorized location, use of an unauthorized
frequency, or use of unauthorized emissions; each of which have a base
forfeiture amount of $4,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(E) 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 Siga
Broadcasting is apparently liable for a $21,000 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, Siga Broadcasting
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty-one thousand dollars ($21,000) for
violations of Sections 17.51(a), 73.49, and 73.1745 (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, Siga Broadcasting
Corporation 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, South Central Region, Houston Office,
9597 Jones Road, # 362, Houston, Texas, 77065 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, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.^8
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 Siga Broadcasting Corporation at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Stephen P. Lee
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
47 C.F.R. SS 17.51(a), 73.1745(a).
47 C.F.R. S 73.49.
47 U.S.C. S 503(b).
The FAA would not issue a NOTAM, even though the agent notified it of the
lighting outage, because the agent was not the owner of the tower.
The staff present had entered into a time brokerage agreement with Siga
Broadcasting to operate the station full-time. No employees of Siga
Broadcasting were present at the main studio.
Station KTMR is only authorized to operate up to 7 PM in April, May, June,
July and August.
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 17.51(a).
47 C.F.R. S 17.47(a)(1).
47 C.F.R. S 73.49.
47 C.F.R. S 73.1745(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)(E).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 17.51(a),
73.49, 73.1745(a).
^8 See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission