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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Western Slope Communications, LLC ) File Number: EB-07-DV-196
Antenna Structure Registrant ) NAL/Acct. No.: 200832800001
Rifle, CO ) FRN: 0004259552
ASR # 1023390 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 7, 2007
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Western Slope Communications, LLC ("Western Slope"), owner of
antenna structure number 1023390, near Rifle, Colorado, 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 observations
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. Western Slope'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. Finally, Western Slope apparently repeatedly failed to
immediately notify the Commission of a change in ownership information
for antenna structure number 1023390, a violation of section 17.57 of
the Commission's Rules ("Rules"). We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Western Slope is apparently liable for a forfeiture in the amount of
thirteen thousand dollars ($13,000).
II. BACKGROUND
2. Antenna structure number 1023390 is an antenna tower of 84.0 meters
(275.6 feet) in height above ground. According to the antenna
structure registration ("ASR") for antenna structure 1023390, the
structure is required to be painted and lit 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 number 1023390
are required to burn continuously or be controlled by a light
sensitive device.
3. On April 23, 2007, at 6:39 p.m., an email was received by the
Enforcement Bureau's Denver office from a police officer with the city
of Rifle, Colorado. The email stated that there was a concerned
citizen in Rifle, Colorado, who had observed a 400 foot tower near the
citizen's home with the top beacon "out for the last two weeks." A
Denver agent determined the antenna structure to have registration
number 1023390, registered to David L. Johnson ("Johnson").
4. On April 24, 2007, the Denver 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 issued concerning
the reported tower light outage for antenna structure number 1023390.
The FAA Flight Service Station then issued NOTAM number RIL 04/011.
5. On May 9, 2007 the FCC agent contacted the Rifle Police Department
about their observations of the tower lights associated with antenna
registration number 1023390. An officer contacted the Denver agent and
reported that he had received information indicating that the "top
beacon was still out." The Denver agent later confirmed that the
outage was observed, by a Rifle officer, during the night of May 5,
2007.
6. On May 9, 2007, at approximately 8:25 a.m., MDT, the Denver agent
again reported the tower outage to the FAA. The FAA promptly issued a
NOTAM for antenna structure number 1023390, assigning it reference
number RIL 05/004. No other NOTAM had been issued since the Denver
agent first called to report the tower light outage on April 24, 2007.
7. On May 15, 2007, Denver agents made several observations of the tower
structure with registration number 1023390. At approximately 9:00
p.m., MDT, they observed that all of the tower's obstruction lighting,
top beacon and side lights, had failed.
8. On May 16, 2007, Denver agents went to the main studio of KRGS, an AM
station broadcasting from antenna structure number 1023390, at 751
Horizon Court, Suite 200, Grand Junction, Colorado, to examine any
records concerning tower light outages. Agents conducted a review of
KRGS's station records with the general manager and contract engineer.
The general manager provided the KRGS tower light logs for inspection.
The last entry was from November 20, 2006. The agents found no entries
in the logs concerning any tower outages for the month of April 2007
up to the day of their visit on May 16, 2007. The general manager said
that he was not aware of any lighting problems at the tower site prior
to the agents' inspection.
9. Still on the afternoon of May 16, 2007, Denver agents drove to the
tower site in Rifle, Colorado, and met with the KRGS general manager
and contract engineer. When the remote automatic tower light indicator
system was checked, it reported no current for the tower light system
while at the transmitter site. Apparently, this remote system,
designed to register any tower lighting failures, had not been
notifying Western Slope. The contract engineer determined the
comprehensive lighting outage to be a result of a faulty A/C neutral
wire. While agents were on-site, the contract engineer repaired the
damaged wire. When the contract engineer covered the photocell, all of
the lights, top beacon and mid-level side lights, were observed by the
agents to be working properly. Finally, the contract engineer's
maintenance logs, found at the transmitter site, showed the last entry
reflecting an on-scene tower light inspection by him as being
conducted on August 1, 2006.
10. On November 14, 2007, further investigation by the Denver Office
revealed that Johnson was not the current owner of antenna structure
number 1023390, despite the fact that Johnson was listed as the owner
in the Commission's ASR database. Johnson was the former general
manager for KRGS and was no longer associated with the station. A
Denver agent contacted the KRGS general manager to determine the
current tower owner. The general manager was uncertain of the formal
name for the structure's ownership.
11. On November 16, 2007, the regional manager for Western Slope contacted
the Denver agent and informed him that Western Slope Communications
had purchased the land and antenna structure number 1023390 from
Johnson in 1996.
12. On November 20, 2007, the Denver agent queried the FCC's ASR database,
finding that a change in ownership had been completed. The data found
for antenna structure registration number 1023390 reflected the owner
to be Western Slope Communications, LLC. The reference copy of the
"FCC Application for Antenna Structure Registration" (FCC 854 Main
Form), file number A0569481, showed that an application was made on
November 19, 2007, to change the ownership.
III. DISCUSSION
13. 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.
14. 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 record, antenna structure
number 1023390 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. Section 17.57 of the Rules requires the owner of an antenna
structure to immediately notify the Commission, using FCC Form 854,
upon any change in structure height or change in ownership
information.
15. On April 24, 2007, and May 9, 2007, Denver agents, in response to
lighting outages on antenna structure number 1023390 reported by
Rifle, Colorado police officers, contacted the FAA Flight Service
Station and found that Western Slope had not reported the outages,
thus requiring the Denver agents to request the issuance of NOTAMs. On
May 15, 2007, Denver agents made several observations of antenna
structure number 1023390 and found, at approximately 9:00 p.m., MDT,
that the all of the tower's obstruction lighting, top beacon and side
lights, had failed. A review of the tower light observation logs for
antenna structure number 1023390 revealed that the last tower
observation documented in writing occurred on November 20, 2006. No
entries were found in the logs indicating any tower light outages from
April 2007 up to the day of the agents' May 16, 2007, inspection. The
general manager acknowledged to the Denver agents that he was unaware
of any lighting problems at the tower site prior to the agents'
inspection. An inspection of the tower site revealed that the tower's
remote automatic tower light indicator system failed to report any
current for the tower's lighting while at the transmitter site and
that the remote system, designed to register lighting failures, had
failed to notify Western Slope.
16. On November 14, 2007, further investigation by the Denver Office
revealed that Johnson was not the current tower owner despite the fact
that Johnson was listed as the owner in the Commission's ASR database.
On November 16, 2007, the Regional Manager for Western Slope confirmed
to the Denver agent that Western Slope had purchased the land and
antenna structure number 1023390 from Johnson in 1996.
17. Western Slope's failure to monitor the lights on antenna structure
number 1023390 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.
Additionally, Western Slope representatives purchased antenna
structure number 1023390 from its former owner in 1996, yet the
ownership information was not updated until brought to the attention
of Western Slope by the Denver agents nearly eleven years later. All
of these violations occurred on more that one day, therefore, they
were repeated. Based on the evidence before us, we find that Western
Slope apparently repeatedly violated Section 303(q) of the Act, and
Sections 17.51(a), 17.47(a), 17.48 and 17.57 of the Rules, by failing
to maintain the required red obstruction lighting on antenna structure
with registration number 1023390; by failing to monitor, either
visually or through an automatic monitoring system, the antenna
structure's lights; failing to report the extinguishment of the
flashing obstruction lighting; and by failing to immediately notify
the Commission of a change in ownership information on antenna
structure number 1023390.
18. 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, and the base
forfeiture amount for 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, and the statutory factors to the
instant case, we conclude that Western Slope is apparently liable for
a $13,000 forfeiture. We note that Western Slope notified the
Commission of its ownership of antenna structure number 1023390 after
being notified of the violation by the Denver Office. The Commission
has stated in the past that an antenna structure registrant is
expected to correct errors when they are brought to the registrant's
attention and that such correction is not grounds for a downward
adjustment in the forfeiture.
IV. ORDERING CLAUSES
19. 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, Western Slope
Communications, LLC, is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of thirteen thousand dollars ($13,000) for
violations of Section 303(q) of the Act, and Sections 17.47(a), 17.48,
17.51(a), and 17.57 of the Rules.
20. 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, Western Slope SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
21. 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.
22. The response to the NAL, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, Denver
Office, 215 South Wadsworth Boulevard, Suite 303, Lakewood, Colorado,
80226-1544 and must include the NAL/Acct. No. referenced in the
caption.
23. 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.
24. 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.
25. 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 Western Slope Communications, LLC, at
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver 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 C.F.R. S: 17.57.
47 U.S.C. S: 503(b).
FAA Circular Number 70/7460-1J, Chapters 3, 4, 5 and 13.
FAA Circular Number 70/7460-1J, Chapters 3 and 13.
FAA Circular Number 70/7460-1J, Chapters 4, 5 and 13.
FAA Circular Number 70/7460-1J, Appendix 1, Figure 11.
FAA Circular Number 70/7460-1J, Chapters 5 and 13.
According to the U.S. Naval Observatory, sunset in Rifle, Colorado,
occurred at 8:18 p.m., MDT, on May 15, 2007.
Western Slope is the licensee of KRGS.
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 70/7460-1J, Chapters 4 and 5.
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
47 C.F.R. S: 17.57.
The Denver agents' requests to issue NOTAMs were 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).
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
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), 17.57.
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
6
Federal Communications Commission