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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) EB-07-DL-016
Omnicom Tower Limited
) NAL/Acct. No. 200732500005
Woodward, Oklahoma
) FRN 0016066193
ASR # 1010654
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 12, 2007
By the District Director, Dallas Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Omnicom Tower Limited ("Omnicom"), owner of antenna structure #
1010654, in Woodward County, Oklahoma, apparently willfully and
repeatedly violated Sections 17.47 and 17.57 of the Commission's
Rules ("Rules") by failing to observe the tower lights on a daily
basis in a manner that would ensure proper operation of the lights and
failing to update tower ownership information. We conclude, pursuant
to Section 503(b) of the Communications Act of 1934, as amended
("Act"), that Omnicom is apparently liable for a forfeiture in the
amount of five thousand dollars ($5,000).
II. BACKGROUND
2. On January 30, 2007, in response to a complaint of a tower light
outage, an agent from the Commission's Dallas Office of the
Enforcement Bureau ("Dallas Office") researched the ownership
information for antenna structure # 1010654. The agent notified the
owner, Omnicom, that the registration for structure # 1010654 listed a
non-working telephone number as its contact telephone number. The
agent also instructed the owner to notify the Federal Aviation
Administration of the outage.
3. On April 27, 2007, an agent of the Dallas Office interviewed Omnicom's
owner regarding antenna structure # 1010654. The owner stated that the
structure's automatic light monitoring system was no longer
operational and that the tower was observed visually from Station
KWOX's main studio in Woodward, OK.
4. On May 2, 2007, an agent of the Dallas Office inspected antenna
structure # 1010654 and the Station KWOX main studio. The agent
interviewed Omnicom's owner who stated that he observed the antenna
structure's lights every day during his morning show from Station
KWOX's main studio. He also stated that he had updated the Antenna
Structure Registration ("ASR") contact information. However, upon
review of the forms provided, the agent determined that the contact
telephone number had only been updated in the Commission's CDBS
database. The agent inspected the Station KWOX main studio and
confirmed that no operational automatic light monitoring system was
installed at the main studio. On May 2, 2007, however, the antenna
structure was not visible from the main studio due to weather
conditions. The agent also determined that, even on a clear day, only
one side of the antenna structure could be viewed from the main
studio. Thus, it is not possible to determine if the lights on all
three sides of the antenna structure are working from the main studio.
Upon inspection of the antenna structure, the agent noted; that the
top-mounted omni-directional strobe, that the next to the bottom level
of the four strobe panels on the north side of the tower, that the
uppermost level of four strobe panels on the southwest side of the
tower, and that the two uppermost levels of the four strobe panels on
the southeast side of the tower were not working.
5. On May 30, 2007, the agent confirmed that the ASR database still
listed the non-working telephone number as Omnicom's contact telephone
number.
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 17.47 of the Rules states the "owner of any antenna structure
which is registered with the Commission and has been assigned lighting
specifications referenced in this part: (a)(1) Shall make an
observation of the antenna structure's lights at least once each 24
hours either visually or by observing an automatic properly maintained
indicator designed to register any failure of such lights, to insure
that all such lights are functioning properly as required; or
alternatively, (2) Shall 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." On April 27, 2007,
Omnicom stated that its automatic alarm system was no longer working
and that the owner was observing visually the antenna structure's
lights on a daily basis from Station KWOX's main studio. On May 2,
2007, an agent from the Dallas Office confirmed that Omnicom did not
have an operational automatic light monitoring alarm system installed.
On May 2, 2007, Omnicom's owner again stated that he regularly
visually checked the tower lights during his morning show from Station
KWOX's main studio, however, on that day, the lights on the structure
were not visible due to weather conditions. The agent determined that,
even on a clear day, visual observations from the main studio would be
insufficient to ensure that all lights are functioning, because two
sides of the antenna structure (southeast and southwest) were not
visible from the studio. Additionally, because the antenna structure
has daylight, twilight and nighttime modes of operation, visual
observations only during a morning show would not ensure proper
operation of the twilight and nighttime modes of operation.
8. Section 17.57 of the Rules requires owners of antenna structures for
which an ASR number has been obtained to "immediately notify the
Commission using FCC Form 854 upon any change in structure height or
change in ownership information." On January 30, 2007, an agent from
the Dallas Office notified Omnicom that a non-working telephone number
was listed in the ASR database as its contact telephone number. On May
30, 2007, the non-working telephone number remained the contact number
for Omnicom in the ASR database.
9. Based on the evidence before us, we find that Omnicom apparently
willfully and repeatedly violated Sections 17.47 and 17.57 of the
Rules by failing to observe the antenna structure lights on a daily
basis in a manner that would ensure that all lights are working
properly and failing to update tower ownership information.
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 conduct required monitoring is
$2,000 and failing to file required forms or information is $3,000. 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 of the Rules, and the statutory factors to the
instant case, we conclude that Omnicom is apparently liable for a
$5,000 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, Omnicom Tower Limited is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of five thousand dollars ($5,000) for violations of Sections
17.47 and 17.57 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, Omnicom Tower Limited
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, Dallas Office,
9330 LBJ Freeway, #1170, Dallas, Texas, 75243 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 Omnicom Tower Limited at its address
of record.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director,
District Office
South Central Region
Enforcement Bureau
47 C.F.R. SS 17.47, 17.57.
47 U.S.C. S 503(b).
The owner of Omnicom is also the President/Director/100% owner of Omni
Communications, Inc., the licensee of Station KWOX.
An active Notice to Airmen ("NOTAM") was issued for the antenna structure
after the agent contacted Omnicom on January 30, 2007.
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."
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, 17.47 & 17.57.
^8 See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission