Click here for Adobe Acrobat version
Click here for Microsoft Word version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************




                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                    )                               
                                                                    
                                    )                               
     In the Matter of                                               
                                    )                               
     Metro Radio, Inc.                                              
                                    )                 EB-07-CF-019  
     Vienna, Virginia                                               
                                    )   NAL/Acct. No. 200832340001  
     Antenna Structure Registrant                                   
                                    )               FRN 0010154573  
     ASR #1018735                                                   
                                    )                               
     Warrenton, Virginia                                            
                                    )                               
                                                                    
                                    )                               



                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                   Released: November 8, 2007

   By the District Director, Columbia Office, Northeast Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Metro Radio, Inc. ("Metro"), owner of Antenna Structure
       Registration (ASR) # 1018735 and licensee of AM station WKCW in
       Warrenton, Virginia, apparently willfully and repeatedly violated
       Section 303(q) of the Communications Act of 1934, as amended, and
       Sections 17.51(a), 17.48(a), and 17.57 of the Commission's Rules
       ("Rules") by failing to exhibit red obstruction lighting from sunset
       to sunrise, failing to immediately notify the Federal Aviation
       Administration ("FAA") of a known light outage, and failing to notify
       the Commission of a change in ownership of the antenna structure. We
       conclude, pursuant to Section 503(b) of the Communications Act of
       1934, as amended ("Act"), that Metro is apparently liable for a
       forfeiture in the amount of thirteen  thousand dollars ($13,000).

   II. BACKGROUND

    2. Antenna structure # 1018735 was an antenna tower of 206 feet in height
       above ground located at 5562 Baldwin Street in Warrenton, Virginia.
       According to the ASR for antenna structure # 1018735, the structure is
       required to have painting and lighting in accordance with Paragraphs
       1, 3, 11 and 21of the Commission's "Obstruction Marking and Lighting
       Specifications for Antenna Structures -- FCC Form 715."  
       Specifically, the structure is required to be painted and have
       obstruction lighting consisting of a flashing red beacon on top and
       two side lights at the mid point of the tower.

    3. On January 23, 2007, in response to a complaint, an agent from the
       FCC's Columbia Office investigated an apparent tower light outage on
       antenna structure # 1018735. The agent observed that, at 5:15 p.m.,
       the average hour for sunset, there were no obstruction lights visible
       on the antenna structure. When the tower still was not illuminated at
       5:45 p.m., the agent contacted the nearest FAA Flight Service

   Station (FSS) and was informed that a Notice to Airmen (NOTAM) had not
   been issued for antenna structure # 1018735. The ASR database listed the
   owner of antenna structure # 1018735 as "WTKF Inc. - d/b/a/ WKCW" in
   Warrenton, Virginia. The agent attempted to contact the WKCW studio, but
   reached a recording and left a message with a call-back number. When the
   agent did not receive a return call by 6:00 p.m., the agent contacted the
   FSS to have a NOTAM issued for the unlit tower.

    4. The next day, the agent contacted Metro, which was identified in the
       FCC's CDBS database as the current licensee of station WKCW. Metro's
       owner, J. David Houston, stated that antenna structure # 1018735
       previously was used by station WKCW as a back-up site and that power
       to the structure was terminated on or about January 4th, 2007. Mr.
       Houston indicated that he knew that the lights on the antenna
       structure were out, but stated that he was unaware that the FCC's
       Rules require that he notify the FAA. Mr. Houston indicated that Metro
       planned to dismantle the tower the next day, January 25, 2007.

    5. On May 25, 2007, the Columbia Office sent a Letter of Inquiry ("LOI")
       to Mr. Houston seeking additional information about the light outage
       and confirming ownership of the antenna structure. In response to the
       LOI, Metro reported that it acquired antenna structure # 1018735 on
       January 2, 2004. In addition, Mr. Houston submitted a declaration in
       which he states that, on January 17, 2007, he notified the FAA that
       the tower would be dismantled on January 24, 2007. Mr. Houston also
       explained in the declaration that the electrical power to the site had
       been terminated because Metro's initial plan had been to dismantle the
       tower the first week in January 2007, but Metro was unable to do so
       because of the unavailability of a key employee. Metro reported that
       the tower was dismantled on January 24, 2007.

   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(a) of the Rules requires that all
       red obstruction lighting be exhibited from sunset to sunrise unless
       otherwise specified. On January 23, 2007, an agent observed that the
       red obstruction lights were not illuminated on ASR # 1018735. Because
       the owner of WKCW stated that power to 5526 Baldwin Street had been
       terminated on or about January 4, 2007 and that he was aware that the
       lights on the antenna structure were out, we find that the violation
       was willful. The violation occurred for more than one day, therefore
       the violation was repeated.

   Metro's claim that it originally had planned to dismantle the tower the
   week the electrical power was terminated does not change the fact that,
   with Metro's knowledge, the tower remained unlit without the issuance of
   an FAA Notice to Airmen ("NOTAM") from around January 4, 2007, to at least
   January 17, 2007. Accordingly, based on the evidence before us, we find
   that Metro apparently willfully and repeatedly violated Section 17.51(a)
   of the Rules.

    8. Section 17.48(a) of the Rules requires that tower registrants notify
       the FAA Flight Service Station or office immediately of any
       extinguishment or malfunction of any required top mounted lighting or
       flashing light, no matter the position on the structure, that cannot
       be corrected within thirty minutes.  On January 24, 2007, Mr. Houston
       stated to the agent that he was not aware that he was required to
       notify the FAA of the light outage. In response to the LOI, however,
       Mr. Houston submitted a declaration in which he claims to have
       reported the light outage to the FAA on January 17, 2007. Even
       assuming that Mr. Houston notified the FAA on January 17, 2007, such
       notification did not comply with the requirement in Section 17.48(a)
       that the FAA be notified immediately of any light outage that is not
       corrected within thirty minutes. The electrical power to the site had
       been terminated around January 4, 2007, so almost two weeks had
       elapsed between the time the power was terminated and the time Mr.
       Houston claims to have contacted the FAA. Because Mr. Houston knew the
       lights were out beginning on or around January 4, 2007, and did not
       notify the FAA until January 17, 2007, if ever, we find that the
       violation was willful. The violation occurred for more than one day,
       therefore, it was repeated. Based on the evidence before us, we find
       that Metro apparently willfully and repeatedly violated Section
       17.48(a) of the Rules.

    9. Section 17.57 of the Rules requires that the owner of an antenna
       structure for which an Antenna Structure Registration Number has been
       obtained must immediately notify the Commission upon any change in
       structure height or change in ownership information. The rule also
       requires that a tower owner must notify the FCC within 24 hours of the
       dismantlement of a tower. Metro acknowledged that it obtained antenna
       structure # 1018735 on January 2, 2004. As soon as Metro acquired the
       tower, it was required to notify the FCC of the change in ownership.
       Further, as of the release date of this Notice of Apparent Liability
       for Forfeiture, the ASR database still lists the tower owner as "WTKF
       Inc. - d/b/a/ WKCW." Further, Metro was required to notify the FCC
       within 24 hours of the tower's dismantlement, which according to Metro
       occurred on January 24, 2007. We find that Metro apparently willfully
       and repeatedly failed to comply with Section 17.57 of the Rules.

   10. Based on the evidence before us, we find that Metro apparently
       willfully and repeatedly violated Sections 17.51(a), 17.48(a), and
       17.57 of the Rules by failing to comply with the antenna structure
       lighting, notification, and registration requirements for antenna
       structure # 1018735.

   11. 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 failure to comply with prescribed lighting
       and/or painting is $10,000 and for failure to file required forms or
       information with the Commission 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)(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 Metro
       is apparently liable for a $13,000 forfeiture.

   IV. ORDERING CLAUSES

   12. 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, Metro Radio, Inc. is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       thirteen thousand dollars ($13,000) for violations of Sections
       17.51(a) and 17.57 of the Rules.

   13. 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, Metro SHALL PAY the full
       amount of the proposed forfeiture or SHALL FILE a written statement
       seeking reduction or cancellation of the proposed forfeiture.

   14. 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.

   15. The response, if any, must be mailed to Federal Communications
       Commission, Enforcement Bureau, Northeast Region, Columbia Office,
       9200 Farm House Lane, Columbia, Maryland 21046 and must include the
       NAL/Acct. No. referenced in the caption.

   16. 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.

   17. 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

   18. 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 Metro Radio, Inc., 2251 Hunter Mill
       Road , Vienna, VA 22181 and to counsel to Metro Radio, Inc., Mark
       Lipp, Wiley, Rein, LP, 1776 K Street, NW, Washington, DC 20006.

   FEDERAL COMMUNICATIONS COMMISSION

   James T. Higgins

   District Director

   Columbia Office

   Northeast Region

   Enforcement Bureau

   47 U.S.C. S: 303(q).

   47 C.F.R. S: 17.51(a), S: 17.57

   47 U.S.C. S: 503(b).

   The agent attempted to contact the WKCW studio because when the initial
   tower light outage complaint was sent to the Columbia Field Office from
   the FCC's Communications and Crisis Management Center ("CCMC"), CCMC staff
   indicated that they had determined that the contact telephone number
   listed in the ASR database was incorrect. Because "WKCW" was part of the
   name of the tower owner listed in the ASR database and because the site
   was known to be the former transmitter site for station WKCW, the agent
   called the number for the WKCW main studio.

   We note that there is an inconsistency with regard to the date on which
   the tower was dismantled. When the agent spoke to Mr. Houston on January
   24, 2007, Mr. Houston stated that the tower would be dismantled the next
   day. In response to the LOI, however, Metro reported that the tower was
   dismantled on January 24, 2007. Whether the tower was dismantled on
   January 24 or January 25, 2007 is irrelevant to our findings here.

   47 U.S.C. S: 303(q).

   47 C.F.R. S: 17.51(a).

   47 C.F.R. S: 17.48(a).

   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)(D).

   47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, Section
   17.51(a).

   8See 47 C.F.R. S: 1.1914.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

                                       4

   Federal Communications Commission