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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
The King's Musician Educational
Foundation, Inc. ) File Number EB-09-HU-0046
Owner of Antenna Structure ) NAL/Acct. No. 200932540004
ASR # 1249922 ) FRN 0013945555
Fannett, Texas )
)
Corrected Copy
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 3, 2009
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that The King's Musician Educational Foundation, Inc. ("Foundation,
Inc."), owner of antenna structure number 1249922, in Fannett, Texas,
apparently willfully and repeatedly violated Sections 17.4(g) and
17.51(b) of the Commission's Rules ("Rules") by failing to display
the Antenna Structure Registration ("ASR") number in a conspicuous
place so that it is readily visible near the base of the antenna
structure and failing to exhibit all medium intensity obstruction
lighting as specified. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Foundation, Inc.
is apparently liable for a forfeiture in the amount of twelve
thousand dollars ($12,000).
II. BACKGROUND
2. On May 13, 2009, an agent from the Commission's Houston Office of the
Enforcement Bureau ("Houston Office") inspected antenna structure
number 1249922. The top daytime medium intensity obstruction lighting
was not working at the time of the inspection. Additionally, the ASR
number was not displayed anywhere near the antenna structure base. The
agent confirmed on May 16, 2009 that the Federal Aviation
Administration ("FAA") had not been informed of the outage.
3. On May 18, 2009, an agent with the Houston Office contacted the
President of Foundation, Inc., who stated that the top daytime medium
intensity obstruction light had been out for two months, that they had
not notified the FAA of the outage, and that the FAA had not issued a
Notice to Airmen ("NOTAM") regarding the antenna structure. He also
confirmed that the ASR number was not posted for the antenna
structure. The FAA issued a NOTAM regarding the antenna structure on
May 18, 2009.
III. DISCUSSION
4. 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) of the Act 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.
5. Section 17.4(g) of the Rules requires that the ASR number be displayed
in a conspicuous place so that it is readily visible near the base of
the antenna structure. On May 10, 2009, an agent from the Houston
Office observed that the ASR number for antenna structure number
1249922 was not posted anywhere near the base of the structure. On May
18, 2009, the President of Foundation, Inc. admitted that the ASR
number was not posted for antenna structure number 1249922. Based on
the evidence before us, we find that Foundation, Inc. apparently
willfully and repeatedly violated Section 17.4(g) of the Rules by
failing to post the ASR number near the base of antenna structure
number 1249922 on May 10 and 18, 2009.
6. Section 17.51(b) of the Rules requires that all medium intensity
obstruction lighting be exhibited as specified. Antenna structure
number 1249922 is required to have a dual lighting system exhibiting
red obstruction lights at nighttime and medium intensity obstruction
lighting during the daytime. On May 10, 2009, an agent from the
Houston Office observed the top medium intensity obstruction light on
antenna structure number 1249922 was not functioning during the day.
On May 16, 2008, the agent confirmed that the FAA had not issued a
NOTAM regarding the antenna structure. On May 18, 2009, the President
of Foundation, Inc. stated the daytime top medium intensity
obstruction light on antenna structure number 1249922 had been out for
two months and that they had not notified the FAA regarding the
outage. Based on the evidence before us, we find that Foundation, Inc.
apparently willfully and repeatedly violated Section 17.51(b) of the
Rules by failing to exhibit all medium intensity obstruction lighting
as specified, between May 10 and 18, 2009.
7. 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 marking is $10,000. Section 1.80 of the Rules does not
establish a base forfeiture amount for failure to post the ASR number.
The commission has determined, however, that an appropriate base
forfeiture amount for failure to post the ASR number is $2,000 per
violation. 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 of the Rules,
and the statutory factors to the instant case, we conclude that
Foundation, Inc. is apparently liable for a $12,000 forfeiture.
IV. ORDERING CLAUSES
8. 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, The King's Musician
Educational Foundation, Inc. is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of twelve thousand dollars
($12,000) for violations of Sections 17.4(g) 17.51(b) of the Rules.
9. 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, The King's Musician
Educational Foundation, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, Foundation, Inc. will send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Houston Office,
9597 Jones Road #362, Houston, Texas, 77065 and must include the
NAL/Acct. No. referenced in the caption.
12. 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.
13. 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 The King's Musician Educational
Foundation, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Lee R. Browning
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 17.4(g) and 17.51(b).
47 U.S.C. S: 503(b).
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."
American Towers Corporation, Notice of Apparent Liability, 16 FCC Rcd 1282
(2001).
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, 17.4(g) and
17.51(b).
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission