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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Baybridge Communications, L.LC. File Number: EB-09-SF-0010
)
Antenna Structure Registrant NAL/Acct. No.: 200932960003
)
Vallejo, California FRN: 0006133953
)
ASR No. 1023097
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 9, 2009
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 Baybridge Communications, L.L.C. ("Baybridge"), registrant of
antenna structure #1023097 near Vallejo, 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 monitor the antenna
structure's lights, using a properly maintained indicator to register
any failure of such lights, a violation of Section 17.47(a) of the
Rules. Baybridge'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 Baybridge Communications, L.L.C. is apparently
liable for forfeiture in the amount of eight thousand dollars
($8,000).
II. BACKGROUND
2. Antenna structure #1023097 is an antenna tower of 70.4 meters
(approximately 231 feet) in height above ground. It is a tower used by
KDYA to serve Vallejo, California. According to the antenna structure
registration ("ASR") for antenna structure #1023097, 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 steady burning red side obstruction lights at the mid-point of
its overall height.
3. On February 17, 2009, the Enforcement Bureau's San Francisco Office
received a complaint that antenna structure #1023097 located near
Vallejo, California was not lighted. An agent of the San Francisco
Office contacted the Federal Aviation Administration ("FAA") Flight
Service Station to determine if the tower light outage had been
reported. The FAA informed the San Francisco agent that no prior light
outage report had been made for antenna structure #1023097, and issued
a 15 day Notice to Airmen ("NOTAM"). The San Francisco agent then
contacted the Vallejo Police Department, Vallejo, California, and
asked that they dispatch an officer, after 5:30 p.m., to observe
antenna structure #1023097 at 3267 Sonoma Blvd., Vallejo, California.
At about 6:00 p.m. the Vallejo Police Department left a message for
the San Francisco agent stating that they observed the tower sometime
after 5:30 p.m. and the light was not "blinking."
4. On February 18, 2009, the San Francisco agent contacted the Vallejo
Police Department and confirmed that the previous evening an officer
observed the antenna structure sometime between 5:30 p.m. and 6:00
p.m. and reported that the nighttime red obstruction lights were not
functioning. That evening the San Francisco agent drove to Vallejo,
California. The agent observed, at approximately 5:35 p.m. and until
about 6:30 p.m., that the nighttime red obstruction top beacon light
for antenna structure #1023097 was not functioning.
5. On February 19, 2009, the San Francisco agent went to the studio
location for KDYA in Richmond, California, and interviewed the
station's Managing Director concerning the light outage on antenna
structure #1023097. The Managing Director told the San Francisco agent
that he was unaware of any lighting problems on antenna structure
#1023097. An inspection at the tower structure site revealed that the
remote control unit appeared to be indicating that the tower lights
had remained off for several days but this information was not being
conveyed or reviewed by appropriate personnel and was not being
interpreted properly. The remote control system was not set to alert
the Managing Director or other station personnel that there was a
tower light outage, thus, for antenna structure #1023097, the
monitoring system did not indicate there was a light outage. The
Managing Director also acknowledged that station personnel did not
make daily observations of the lights on antenna structure #1023097.
The San Francisco agent then examined the records for KDYA and the
antenna structure and found no log entries concerning any light
outages for antenna structure #1023097.
6. On February 21, 2009, the KDYA Managing Director telephoned the San
Francisco agent and advised that the top beacon on antenna structure
#1023097 had been replaced on February 20, 2009, and was functioning
properly. The Managing Director also informed the agent that he had
contacted the FAA to cancel the NOTAM for antenna structure #1023097.
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 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 states that all red
obstruction lighting shall be exhibited from sunset to sunrise unless
otherwise specified. The FAA Advisory Circular chapters for antenna
structure #1023097 require that the structure be painted and have, at
its top, a flashing beacon equipped with two lamps and red filters,
along with mid-point steady burning red side obstruction lights.
Section 17.47(a) of the Rules 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 that
registered antenna structures that have been assigned lighting
specifications shall report immediately by telephone or telegraph to
the FSS or FAA any observed or otherwise known extinguishment of any
flashing obstruction light not corrected within 30 minutes.
9. On February 17, 2009, a complainant alerted the Commission that a
light on a tower structure in Vallejo, California had been out for
several weeks. When the San Francisco agent contacted the FAA Flight
Service Station and found that Baybridge had not reported the outage,
the San Francisco agent made the report requesting the NOTAM. Sometime
between 5:30 p.m. and 6:00 p.m., a Vallejo Police Officer observed
that the top flashing beacon red obstruction light on antenna
structure #1023097 was not functioning. On February 18, 2009, at
approximately 5:35 p.m., and until approximately 6:30 p.m., a San
Francisco agent observed that the red obstruction light on antenna
structure #1023097 was not functioning. When the San Francisco agent
inspected the KDYA main studio and transmitter site on February 19,
2009, he could find no logs concerning the light outage on antenna
structure #1023097, and the KDYA Managing Director acknowledged that
he was unaware of the light outage. The Managing Director reviewed the
monitoring equipment for antenna structure #1023097 and found that the
system did not alert him of any failure of the lights on the
structure. The Managing Director also acknowledged that KDYA personnel
did not make daily observations of antenna structure #1023097.
Baybridge's failure to properly observe and maintain an indicator
designed to register any lighting failure resulted in Baybridge's
failure to monitor the lights on antenna structure #1023097. This
failure to monitor resulted in Baybridge's failure to notify the FAA
Flight Service Station of the outage of the flashing obstruction
light, which is required to be exhibited from sunset to sunrise. Based
on the evidence before us, we find that Baybridge 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 #1023097; by failing to
monitor the antenna structure's lights, using a properly maintained
indicator designed to register any lighting failure; and by failing to
report the extinguishment of the flashing obstruction lighting on
antenna structure #1023097.
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 comply with the prescribed
lighting and/or marking for 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. In post-inspection correspondence
with the San Francisco District Office, Baybridge asserts that the
proximity of the tower to a prominent hill and the fact that the
mid-level lights were operating mitigated the safety issue, and noted
Baybridge's history of compliance with the Commission's Rules. We do
not concur that the external factors Baybridge noted mitigate the
violation as the FAA had determined that antenna structure #1023097
was required to maintain, at its top, a flashing beacon equipped with
two lamps and red filters. Based on a review of the Commission's
records, however, we concur that Baybridge does have a history of
compliance with the Commission's rules. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, including a reduction of the $10,000 base forfeiture for
Baybridge's history of compliance, we conclude that Baybridge is
apparently liable for an $8,000 forfeiture.
IV. ORDERING CLAUSE
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 and
1.80 of the Commission's Rules, Baybridge Communications, L.L.C. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for violations of Section
303(q) of the Act, and Sections 17.47(a), 17.48 and 17.51(a) 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, Baybridge Communications,
L.L.C., 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. Baybridge Communications,
L.L.C., shall also send electronic notification on the date said
payment is made to WR-Response@fcc.gov.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Francisco Office,
5653 Stoneridge Drive, Suite 105, Pleasanton, California 94588 and
must include the NAL/Acct. No. referenced in the caption. An
electronic copy shall be sent to WR-Response@fcc.gov.
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. 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 Baybridge Communications, L.L.C., 3260
Blume Drive, Suite 520, Plaza II, Richmond, California 94806.
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. VanStavern
District Director
San Francisco 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).
Baybridge is also the licensee of KDYA.
See FAA Circular Number 70/7460-1J, Chapters 3, 4, 5 and 13.
FAA Circular Number 70/7460-1J, Appendix 1, Figure 11.
According to the U.S. Naval Observatory, sunset in the Vallejo,
California, area occurred at 5:50 p.m., PST, on February 17, 2009.
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 3, 4, 5 and 13, Appendix 1,
Figure 11.
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 12 FCC Rcd 17087(1997), recon. denied 15 FCC Rcd 303 (1999).
13 47 U.S.C. S: 503(b)(2)(E).
14 47 U.S.C. S:S: 303(q), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80,
17.47(a), 17.48, 17.51(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
4
Federal Communications Commission