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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-07-NY-247
WGBB-AM, Inc. )
NAL/Acct. No.
Owner of Antenna Structure ) 200832380004
ASR # 1064894 ) FRN 0003 7760 02
Freeport, New York )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 25, 2008
By the District Director, New York Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that WGBB-AM, Inc. ("WGBB"), owner of antenna structure 1064894
located in Freeport, New York, apparently willfully and repeatedly
violated Sections 17.48(a) and 17.57 of the Commission's Rules
("Rules") by failing to report immediately to the nearest Flight
Service Station or office of the Federal Aviation Administration an
observed and known extinguishment of the tower's top red flashing
obstruction light and by failing to immediately notify the Commission
of a change of ownership of its antenna structure. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that WGBB is apparently liable for a forfeiture in
the amount of six thousand dollars ($6,000).
II. BACKGROUND
2. On July 16, 2007, the FCC's Crisis and Communications Management
Center (CCMC) received a report from the Freeport, New York Police
Department of a tower light outage on antenna structure 1064894. The
report was subsequently forwarded to the FCC's New York Office for
appropriate action. Immediately after receiving the report, an agent
in the New York Office checked the FCC's Antenna Structure
Registration ("ASR") database for antenna structure 1064894, which
listed Cox Radio, Inc. ("Cox") as the registered owner of the 86.5
meter tower located in Freeport, New York. ASR 1064894 requires that
the tower be painted and lighted in accordance with Chapters 3, 4, 5,
and 13 of FAA Circular Number 70/7460-1J. Specifically, Chapter 5
requires a top-mounted red flashing obstruction light and steady
burning red side lights at the tower's midpoint for nighttime
visibility.
3. Immediately following the check of the ASR database, the agent checked
the FAA's DINS (Defense Internet NOTAM Service) database and called
the FAA's nearest Flight Service Station in Ronkonkoma, New York and
determined that there was no open NOTAM (Notice to Airmen) for antenna
structure 1064894, indicating that the FAA was not notified of the
light outage. The agent then spoke to Cox's station manager, who
stated that Cox sold the tower and radio station to WGBB-AM, Inc.
several years ago, possibly in 1999. The agent checked the FCC
database for AM radio station WGBB, and found that the current
licensee of WGBB was WGBB-AM, Inc. ("WGBB").
4. On that same day, July 16, 2007, the agent spoke by telephone to
WGBB's station manager, who stated that WGBB was the current owner of
the tower and that WGBB purchased the station and tower from Cox a
number of years ago. The agent informed the station manager of the
reported light outage, and the violations for failure to immediately
report the outage to the FAA and for failure to change the ownership
information on the ASR. The station manager stated that on July 10 or
11, 2007, the local police called the radio station to report a light
outage on the Freeport tower and that he drove to the tower site that
night and visually confirmed that the top red obstruction light was
extinguished. He further stated that he notified the station's
engineer, but that neither he nor the station's engineer reported the
outage to the FAA because they were not aware of the requirement to do
so. The agent advised the station manager to immediately report the
light outage to the FAA's nearest Flight Service Station, that the
light should be repaired as soon as possible, and that the ownership
information on the ASR must be changed. The station manager stated
that he did not know how to contact the FAA and did not know the
tower's ASR number. After the agent gave him this information, the
station manager reported the outage to the FAA.
5. On July 17, 2007, the agent checked the FAA's DINS NOTAM database,
which showed that on July 16, 2007, a NOTAM was issued for the light
outage on ASR 1064894. Also on July 17, the agent spoke by telephone
to WGBB's station manager, who stated that WGBB had made arrangements
with a tower contractor to repair the light. The station manager
called the agent on July 25, 2007 and stated that the tower light on
ASR 1064894 was repaired and has been functioning since 4:00 p.m. that
day.
6. On July 30, 2007, the agent checked the FCC's ASR database for antenna
structure 1064894, which correctly showed WGBB-AM, Inc. as the tower
owner. According to the ASR database, the notification was submitted
on July 27, 2007.
III. DISCUSSION
7. 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.
8. Section 17.48(a) of the Commission's Rules states that "The owner of
any antenna structure which is registered . . . [s]hall report
immediately by telephone or telegraph to the nearest Flight Service
Station or office of the Federal Aviation Administration any observed
or otherwise known extinguishment or improper functioning of any top
steady burning light or any flashing obstruction light, regardless of
its position on the antenna structure, not corrected within 30
minutes." According to WGBB's station manager, local police reported
the light outage to WGBB personnel on July 10 or 11, 2007, and the
light outage was confirmed the same evening by the station manager.
The station manager admitted that WGBB did not immediately report the
outage to the FAA because he was not aware of the requirement to do
so. The tower light reportedly was still out on July 16, 2007, when
the Freeport Police Department notified the FCC about the unlit tower
light. According to FAA records, WGBB did not notify the FAA of the
outage and no NOTAM was issued for the tower until July 16, 2007, and
such notification to the FAA was made only after the station manager
was instructed to do so by an FCC agent. Accordingly, based on the
evidence before us, we find that WGBB apparently willfully and
repeatedly violated Section 17.48(a) of the Rules by failing to report
to the nearest Flight Service Station or office of the Federal
Aviation Administration an observed and known extinguishment of its
tower's top red flashing obstruction light.
9. Section 17.57 of the Commission's Rules states that "[t]he owner of an
antenna structure for which an Antenna Structure Registration Number
has been obtained must . . . immediately notify the Commission using
FCC Form 854 upon any change in structure height or change in
ownership information." On July 16, 2007, a check of the FCC's ASR
database listed Cox Radio, Inc. as the registered owner of antenna
structure 1064894. Both WGBB and Cox personnel acknowledged to the
agent that WGBB had purchased antenna structure 1064894 from Cox
several years ago, and that WGBB was the current owner of the
structure. According to FCC records, WGBB had purchased AM radio
station WGBB from Cox in 1999, which included the antenna structure.
WGBB did not change the ownership information on the ASR until July
27, 2007, and only after an FCC agent investigating the reported light
outage advised WGBB station management of the incorrect ownership
information on the ASR. Accordingly, based on the evidence before us,
we find that WGBB apparently willfully and repeatedly violated Section
17.57 of the Rules by failing to immediately notify the Commission of
a change of ownership of its antenna structure.
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 file required forms or
information is $3,000. We find that failure to notify the FAA of a
tower light outage and failure to immediately notify the Commission of
a change in antenna structure ownership constitute failures to file
required forms or information. 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 WGBB is
apparently liable for a $6,000 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, WGBB-AM, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
six thousand dollars ($6,000) for violations of Sections 17.48(a) and
17.57 of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, WGBB-AM, Inc. 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, Northeast Region, New York Office, 201
Varick Street, New York, NY 10014, 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.
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 WGBB-AM, Inc. at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 C.F.R. S:S: 17.48(a), 17.57.
47 U.S.C. S: 503(b).
FCC records show that Cox Radio, Inc. sold AM radio station WGBB to
WGBB-AM, Inc. in June, 1999.
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: 17.48(a).
We note that the fact that the station manager allegedly was not aware of
the requirement to notify the FAA of the light outage does not change our
finding here with regard to an apparent violation of our rules. See Profit
Enterprises, Inc., Forfeiture Order, 8 FCC Rcd 2846, 2846 (1993) ("prior
knowledge or understanding of the law is unnecessary to a determination of
whether a violation existed ... ignorance of the law is [not] a mitigating
factor"); Empire Broadcasting, Memorandum Opinion and Order, 25 FCC 2d 68,
69 (1970) (mere oversight or failure to be aware of the Commission's
requirements will not excuse licensee from its obligation to operate in
compliance with the Commission's Rules).
47 C.F.R. S: 17.57
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: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 17.48(a),
17.57.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission