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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
International Church of the Foursquare Gospel ) File Number:
DBA Radio Station KFSG FM EB-09-LA-0118
)
Antenna Structure Registrant NAL/Acct. No.:
) 201032900004
Los Angeles, California
) FRN: 0005822622
ASR No. 1012525
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 28, 2010
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that International Church of the Foursquare Gospel DBA Radio Station
KFSG FM ("Foursquare Gospel"), registrant of antenna structure
#1012525 in Los Angeles, 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; by failing to maintain the antenna structure painting and
lighting in accordance with their Antenna Structure Registration
("ASR"), a violation of Section 17.6(a) of the Rules; and by failing
to monitor the antenna structure's lights, using a properly maintained
indicator and/or automatic alarm system designed to register or detect
any failure of such lights, a violation of Section 17.47(a) of the
Rules. Foursquare Gospel'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
light, a violation of Section 17.48 of the Rules. Foursquare Gospel's
failure to maintain required lighting on the antenna structure and
comply with the FCC's rules created a hazard to air navigation. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Foursquare Gospel is apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1012525 is an antenna tower of 67.8 meters
(approximately 222 feet) in height above ground. The registered owner
is Foursquare Gospel. According to the antenna structure registration
("ASR") for antenna structure #1012525, the structure is required to
be painted and lit in accordance with FCC Paragraphs for Obstruction
Marking and Lighting. Specifically, the structure is required to be
painted and have, at its top, a flashing red obstruction beacon, along
with steady burning red side obstruction lights at approximately
two-thirds and one-third of the over-all height of the tower.
3. On August 28, 2009, the Enforcement Bureau's Los Angeles Office
received complaints concerning an antenna tower light outage in regard
to antenna structure #1012525, located at 1050 Montecito Dr. (Tower
2), Los Angeles, California. The complaint stated that the antenna
tower had been unlit for approximately two months and there was
concern as the structure is located on a ridge in a heavily traveled
helicopter flight path. The complaint also stated that there was an
attempt to contact the tower owner via the telephone number listed on
the antenna structure registration form but the number listed had been
disconnected and was no longer a working telephone number. An agent of
the Los Angeles Office performed a search of the Commission's ASR
database, obtained the listed antenna registration information for ASR
#1012525, and attempted to contact the registered tower owner,
International Church of the Foursquare Gospel DBA Radio Station KFSG
FM. The agent confirmed that the telephone number listed on the
structure's ASR had been disconnected and was not a working telephone
number. The Los Angeles agent contacted the Federal Aviation
Administration's ("FAA") Flight Service Station ("FSS") to determine
if the tower light outage had been reported. The FAA informed the Los
Angeles agent that no prior light outage report had been made for
antenna structure #1012525. The Los Angeles agent requested the FSS
issue a NOTAM for tower #1012525. Subsequently, a few minutes later,
the FSS called back confirming that the NOTAM had been issued and
providing the agent with a NOTAM number.
4. On August 28, 2009 and August 31, 2009, the Los Angeles agent was on
scene at 1050 Montecito Dr. and on both occasions confirmed that the
antenna tower lights on tower #1012525 were out and the tower was
completely dark.
5. On September 2, 2009, the Los Angeles agent made contact with the
registered antenna tower owner, Foursquare Gospel, and spoke with a
Facilities Manager who stated that the antenna tower in question,
#1012525, was owned by Spanish Broadcasting System ("SBS"), not
Foursquare Gospel. He stated that the antenna tower had been sold
years earlier. He acknowledged that he was aware of the antenna tower
light outage but went on to state that it was the responsibility of
Spanish Broadcasting System to maintain the tower. Subsequently, the
Los Angeles agent contacted Spanish Broadcasting System and spoke with
management there who acknowledged that they were a Commission licensee
operating a transmitter on the antenna structure, but not the antenna
structure owner. The management at Spanish Broadcasting System stated
that they were unaware of the antenna tower light outage but in the
interests of safety would take immediate steps to get the tower lit
and properly monitored as soon as possible. An official at Spanish
Broadcasting System did offer that they were not monitoring the
antenna tower lights and went on to state that if it turned out to be
their responsibility, visual monitoring would be impractical and they
would elect to automate the process. The Los Angeles agent also spoke
with officials at Clear Channel, the owner of the remaining two
antenna towers in the array, # 1051221 and # 1051222. In subsequent
correspondence, a Clear Channel Engineering Supervisor stated that
Clear Channel personnel first noticed the antenna tower light outage
on August 30, 2009. He went on to state that although the Clear
Channel towers do not have painting and lighting requirements, the
lights on antenna tower #1051221 were turned on to give some marking
to the area once Clear Channel discovered the antenna tower light
outage on the tower owned by Foursquare Gospel, tower #1012525.
6. On September 3, 2009, the Los Angeles agent visited the offices of the
International Church of the Foursquare Gospel and interviewed the
Department Manager, Properties and Credentials. The manager
acknowledged that the church owns antenna structure #1012525 but
leases it to Spanish Broadcasting System. When asked for copies of the
antenna structure light logs, the manager stated that no tower light
logs were maintained by the church as their lease agreement requires
Spanish Broadcasting System to fully maintain the tower.
7. On September 8, 2009, the Los Angeles agent received an e-mail from an
engineer at Spanish Broadcasting System advising that the company will
be adding an Automatic Tower Light alarm to their remote control since
it is their intention to make certain any tower light outages in the
future are met with a speedy response from SBS regardless of who owns
the tower.
8. On September 11, 2009, the Los Angeles agent received a separate
e-mail from the engineer at Spanish Broadcasting System advising that
it determined that a contactor in the photocell switching circuit had
blown up, interrupting the power to the lights. The engineer stated
that the power was restored but when measuring the current draw of the
lights, it was apparent that one of the beacons was still out so
therefore the plan to replace all the tower lamps was still scheduled
for September 14, 2009.
9. On September 17, 2009, the Los Angeles agent received a final e-mail
from the engineer at Spanish Broadcasting System advising that the
tower crew had been on site on September 14, 2009, and replaced all
the tower lights. The engineer stated that two new beacon bulbs were
installed at the top of the tower as well as four new side markers.
The engineer also requested that the agent provide him with the
appropriate FAA telephone number for reporting NOTAMs, to be kept in
his file for future reference in case of an antenna tower light
outage.
10. On September 23, 2009, the Los Angeles agent received an e-mail from a
Clear Channel engineering supervisor, stating that Clear Channel, in
conjunction with SBS, hired a tower company to re-lamp the tower. The
engineer from Clear Channel confirmed that a tower re-lamp was
accomplished on September 14 , 2009.
III. DISCUSSION
11. 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.
12. 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. The Commission's antenna structure construction,
marking and lighting requirements operate in concert with FAA
regulations to ensure that antenna structures do not present hazards
to air navigation. Generally, the Rules require that antenna
structures located close to airports or that are greater than 200 feet
in height comply with painting and lighting specifications designed to
ensure air safety. Section 17.51(a) of the Rules states that all red
obstruction lighting shall be exhibited from sunset to sunrise unless
otherwise specified. The FCC Paragraphs for antenna structure 1012525,
require that the structure be painted and have, at its top, a flashing
red beacon, along with steady burning red side obstruction lights at
approximately two-thirds and one-third of the overall height of the
tower. Section 17.6(a) of the Rules requires that the antenna
structure owner maintain the painting and lighting in accordance with
the specifications set forth in the ASR. 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.
13. On August 28, 2009, the Enforcement Bureau's Los Angeles Office
received a complaint that antenna structure #1012525 located at 1050
Montecito Dr., Los Angeles, California, had been unlit for
approximately a two month period. An agent in the Los Angeles Office
contacted the FAA's Flight Service Station and discovered that the
antenna tower owner, Foursquare Gospel, had not reported the light
outage. Foursquare Gospel acknowledged that the antenna tower lights
for tower #1012525 were not being monitored. Additionally, Foursquare
Gospel was unable to produce any logs concerning the light outage on
antenna structure #1012525, and acknowledged that there was no
automatic alarm system installed to detect the failure of the lights
and to provide indication of such failure to the owner.
14. Foursquare Gospel's failure to properly observe and maintain an
indicator and/or automatic alarm system designed to register or detect
any lighting failure resulted in Foursquare Gospel's failure to
monitor the lights on antenna structure #1012525. This failure to
monitor resulted in Foursquare Gospel'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 Foursquare Gospel apparently
repeatedly violated Section 303(q) of the Act, and Sections 17.51(a),
17.47(a), 17.6(a), and 17.48 of the Rules, by failing to maintain the
required red obstruction lighting on antenna structure #1012525; by
failing to monitor the antenna structure's lights, using a properly
maintained indicator and/or automatic alarm system designed to
register or detect any lighting failure; by failing to maintain the
structure lighting in accordance with the ASR specifications, and by
failing to report the extinguishment of the top flashing red beacon on
antenna structure #1012525.
15. 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. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Foursquare Gospel is apparently liable for a
$10,000 forfeiture. In addition, we direct Foursquare Gospel to update
its antenna structure registration with a valid telephone contact
number.
IV. ORDERING CLAUSE
16. 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, International Church of the Foursquare
Gospel DBA Radio Station KFSG FM is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for violations of Section 303(q) of the Act, and Sections
17.6(a), 17.47(a), 17.48, and 17.51(a) of the Rules.
17. 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, International Church of
the Foursquare Gospel DBA Radio Station KFSG FM, SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
18. 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. International Church of the
Foursquare Gospel DBA Radio Station KFSG FM shall also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
19. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles District
Office, 18000 Studebaker Rd., Suite 660, Cerritos, CA. 90703 and must
include the NAL/Acct. No. referenced in the caption. An electronic
copy shall be sent to WR-Response@fcc.gov.
20. 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.
21. 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 International Church of the Foursquare
Gospel DBA Radio Station KFSG FM, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director
Los Angeles 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: 17.6(a).
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
47 U.S.C. S: 503(b).
See FCC Forms 715/715A, paragraphs 1, 3, 12 and 21.
FCC Forms 715/715A, paragraphs 3, 12 and 21.
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).
AT&T Wireless Services, Inc., 17 FCC Rcd 7891, 7892 (2002).
47 C.F.R. S: 17.21.
47 C.F.R. S: 17.51(a).
FCC Forms 715/715A, paragraphs 3, 12 and 21.
47 C.F.R. S: 17.6(a).
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
19 12 FCC Rcd 17087(1997), recon. denied 15 FCC Rcd 303 (1999).
20 47 U.S.C. S: 503(b)(2)(E).
21 47 U.S.C. S:S: 303(q), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80, 17.6,
17.47(a), 17.48, 17.51(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
6
Federal Communications Commission