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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Threshold Communications ) File Number: EB-07-SF-101
Antenna Structure Registrant ) NAL/Acct. No.: 200732960005
Waterford, CA ) FRN: 0001547116
ASR # 1015782 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 28, 2007
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 Threshold Communications ("Threshold"), owner of antenna
structure #1015782, near Waterford, California, apparently repeatedly
violated Section 303(q) of the Communications Act of 1934, as amended,
("Act"), and Section 17.51(a) of the Commission's Rules ("Rules") by
failing to exhibit the structure's red obstruction lighting from
sunset to sunrise; and by failing to make 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, a violation of Section 17.47(a)
of the Rules. Threshold's failure to make the required observations of
the lighting on the antenna structure resulted in its failure to
notify the nearest Flight Service Station of the Federal Aviation
Administration ("FAA") of the outage of the flashing obstruction
lights, a violation of Section 17.48 of the Rules. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Threshold is apparently liable for a forfeiture
in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1015782 is an antenna tower of 82.8 meters (271.7
feet) in height above ground. It is tower one in a three-tower array
used by KVIN to serve Ceres, California. Threshold Communications is
the licensee of KVIN. According to the antenna structure registration
("ASR") for antenna structure #1015782, the structure is required to
have painting and lighting in accordance with specific Chapters of the
FAA Advisory Circular for Obstruction Marking and Lighting.
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 a level at approximately one-half the overall height of the
tower. The lights on antenna structure #1015782 are required to burn
continuously or be controlled by a light sensitive device.
3. On May 29, 2007, at approximately 8:00 p.m. PDT, an agent from the
Enforcement Bureau's San Francisco Office observed the three-tower
array used by KVIN and noted that a top tower light on antenna
structure #1015782 was extinguished. The next day, on May 30, 2007, at
approximately 9:00 p.m. PDT, the San Francisco agent again observed
the three-tower array used by KVIN and noted that a top tower light on
antenna structure #1015782 was extinguished.
4. On May 31, 2007, the San Francisco agent contacted the Federal
Aviation Administration ("FAA") Flight Service Station to determine if
the tower light outage had been reported. The FAA reported that they
had not received any information concerning a tower light outage and
advised that a Notice to Airmen ("NOTAM") would be published
concerning the reported tower light outage for antenna structure
#1015782. The FAA Flight Service Station then issued NOTAM number
05103.
5. On June 11, 2007, San Francisco agents conducted an inspection of the
KVIN main studio located at 961 North Emerald Avenue, Modesto,
California. The agents reviewed the KVIN station records and found no
entries prior to June 11, 2007, concerning light outages on the KVIN
three-tower array, including antenna structure #1015782. The agents
also interviewed the KVIN general manager, who acknowledged that he
was not aware of any lighting problems on the KVIN three-tower array
until the morning of the inspection by the San Francisco agents. Later
that day, the general manager accompanied the San Francisco agents to
the site of the three-tower array. The general manager was unable to
illuminate the top light on antenna structure #1015782, and determined
that there was some damage to the electronic system which controlled
the flashing mechanism for antenna structure #1015782.
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 #1015782
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 a level at approximately one-half
the overall height of the tower. Section 17.47(a) requires that the
owner of any antenna structure which is registered with the Commission
and has been assigned lighting specifications 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. Section 17.48 of the Rules
requires the owner of an antenna structure to report immediately by
telephone or telegraph to the nearest Flight Service Station or office
of the FAA any observed or otherwise known extinguishment or improper
functioning or any top steady burning light or any flashing
obstruction light, regardless of its position on the antenna
structure, not corrected within 30 minutes.
8. On May 29, 2007, at approximately 8:00 p.m., a San Francisco agent
observed that the flashing beacon on antenna structure #1015782 was
extinguished. On May 30, 2007, at approximately 9:00 p.m., the San
Francisco agent again observed that the flashing beacon on antenna
structure #1015782 was extinguished. The San Francisco agent contacted
the FAA Flight Service Station and found that Threshold had not
reported the outage, thus requiring the San Francisco agent to make
the report requesting the NOTAM. When San Francisco agents inspected
the KVIN main studio on June 11, 2007, they could find no logs dated
prior to June 11, 2007, concerning the light outage on antenna
structure #1015782, and the KVIN general manager acknowledged he was
unaware of the light outage until the morning of the inspection. The
San Francisco agents inspected the antenna structure with the KVIN
general manager and found that the structure's top-mounted red
flashing beacon could not be illuminated. Threshold's failure to
monitor the lights on antenna structure #1015782 resulted in its
failure to notify the FAA Flight Service Station of the outage of the
flashing obstruction lights, which are required to be exhibited from
sunset to sunrise. Based on the evidence before us, we find that
Threshold apparently repeatedly violated Section 303(q) of the Act,
and Sections 17.51(a), 17.47(a) and 17.48 of the Rules, by failing to
maintain the required red obstruction lighting on antenna structure
#1015782; by failing to monitor, either visually or through an
automatic monitoring system, the antenna structure's lights; and by
failing to report the extinguishment of the flashing obstruction
lighting on antenna structure #1015782.
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 prescribed lighting
and/or marking of 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)(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 Threshold 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,
0.314 and 1.80 of the Commission's Rules, Threshold Communications 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 Sections 17.47(a), 17.48 and 17.51(a) 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, Threshold Communications
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 to the NAL, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, San
Francisco Office, 5653 Stoneridge Drive, Ste. 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
12th 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 Threshold Communications, at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. Van Stavern
District Director
San Francisco District Office
Western Region
Enforcement Bureau
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
47 U.S.C. S: 503(b).
FAA Circular Number 70/7460-1F, Chapters 3, 4, and 5.
FAA Circular Number 70/7460-1F, Chapter 3.
FAA Circular Number 70/7460-1F, Chapters 4 and 5.
FAA Circular Number 70/7460-1F, Appendix 2, Figure 1.
FAA Circular Number 70/7460-1F, Chapter 5.
According to the U.S. Naval Observatory, sunset in Waterford, California,
occurred at 8:17 p.m., PDT, on May 29, 2007.
The agents found one entry, dated June 11, 2007, which noted the light
outage. The entry was made prior to the agents' arrival at the main
studio.
The general manager also produced for the agents a receipt showing that
the light bulbs for all the lights on the three-tower array had been
replaced on January 29, 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."
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
FAA Circular Number 70/7460-1F, Chapters 4 and 5.
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
The San Francisco agent's request to issue a NOTAM was done to protect the
public safety, given that the FAA- mandated lighting on the structure was
not functioning and that the antenna structure was therefore a potential
hazard to air navigation. We caution antenna structure owners, however,
that it is incumbent upon them, and not a third party, to notify the FAA
of any extinguishments or malfunctioning lights.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 303(q), 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
17.47(a), 17.48, 17.51(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission