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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Eure Family Limited Partnership ) File No. EB-01-NF-201
Owner of Antenna Structure ) NAL/Acct. No. 200132640006
Registration # 1018162 )
Mathews County, Virginia ) FRN 0005-0271-72
Adopted: December 3, 2001 Released: December 5,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000) to Eure Family Limited Partnership (``Eure'') for
willful violation of Section 17.51(a) of the Commission's
Rules (``Rules'').1 The noted violation involves Eure's
failure to exhibit red obstruction lighting on its Mathews
County, Virginia antenna structure between sunset and sunrise.
2. On August 16, 2001, the Commission's Norfolk, Virginia,
Resident Agent Office (``Norfolk Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Eure for a
forfeiture in the amount of eight thousand dollars ($8,000).2
Eure filed a response to the NAL on September 17, 2001.
3. Eure owns an antenna structure in Mathews County,
Virginia, with antenna structure registration (``ASR'') number
1018162. The ASR for the Mathews County tower indicates that
red obstruction lighting is required between sunset and
sunrise. On June 8, 2001, a resident of Harfield, Virginia
contacted the FCC and reported that he had observed the
Mathews County tower without its top beacon lit at night. On
June 9, 2001, after sunset, an FCC agent inspected the
structure and observed that the top beacon was not lit.
Another FCC agent then contacted the Federal Aviation
Administration's (``FAA'') Leesburg, Virginia Flight Service
Station, which advised the agent that there was no Notice to
Airmen (``NOTAM'')3 in effect for the Mathews County tower.
At the FCC agent's request, the FAA issued a NOTAM for the
Mathews County tower.
4. On July 2, 2001, the Norfolk Office issued a Notice of
Violation (``NOV'') to Eure4 for failing to exhibit red
obstruction lighting on the Mathews County tower between
sunset and sunrise in violation of Section 17.51(a) of the
Rules. Eure filed a response to the NOV on July 20, 2001. In
this response, Eure stated that it had operated the tower as
an antenna site for WXEZ-FM, Yorktown, Virginia, and that it
had monitored the tower lights using a telephone dial-up
device that was programmed to notify WXEZ's engineer of any
lighting outages until it sold WXEZ in October 2000. Eure
further stated that by lease agreement dated January 5, 1999,
it leased space on the Mathews County tower to Bullseye
Broadcasting, LLC (``Bullseye''), licensee of WSRV,
Deltaville, Virginia, and that the terms of the lease
agreement required Bullseye to monitor the tower lights and
notify Eure of any lighting failures. Eure provided a letter
from a principal of Bullseye, who stated that Bullseye failed
to notify Eure of the malfunctioning beacon because he was
unaware that the lease agreement obligated Bullseye to monitor
the tower lights. Bullseye's principal also stated that the
dial-up device used to monitor the tower lighting was never
reprogrammed to notify Bullseye's engineer of any lighting
outages after Eure sold WXEZ in October 2000. Finally, Eure
indicated that the malfunctioning beacon had been repaired and
that the dial-up device had recently been reprogrammed to
notify Bullseye's engineer of any lighting outages.
5. On August 16, 2001, the Norfolk Office issued an NAL
for a forfeiture in the amount of $8,000 to Eure for failure
to exhibit red obstruction lighting on the Mathews County
tower between sunset and sunrise in violation of Section
17.51(a) of the Rules. The NAL noted that the base forfeiture
amount for tower lighting violations is $10,000,5 but reduced
the forfeiture amount to $8,000 based on Eure's history of
compliance with the Commission's rules. Eure filed a response
to the NAL on September 17, 2001. In this response, Eure does
not dispute that the violation occurred. However, Eure argues
that the NAL should be vacated because the Norfolk Office
failed to consider Eure's explanation for the violation set
forth in its response to the NOV. In addition, Eure argues
that the NAL should be vacated because it is not supported by
probative evidence of a ``willful or repeated'' violation.
Eure asserts that the violation was not willful because it had
a contract with a third party who was responsible for
monitoring the tower lights and the third party failed to
notify it of the extinguished beacon. Eure asserts that the
violation was not repeated because the FCC agent observed the
violation on only one day, June 9, 2001.
6. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended (``Act''),6 Section 1.80 of the Rules,7 and
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Eure's
response, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent
and gravity of the violation and, with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice
7. Section 17.51(a) of the Rules provides that all red
obstruction lighting must be exhibited from sunset to sunrise
unless otherwise specified in the ASR. Eure does not dispute
that the red obstruction lighting on the Mathews County tower
was not lit after sunset on June 9, 2001. Thus, Eure violated
Section 17.51(a) of the Rules.
8. We reject Eure's argument that the NAL should be
vacated because the Norfolk Office did not consider the
explanation for the violation set forth in its response to the
NOV. Although the NAL did not discuss the explanation, the
Norfolk Office fully considered Eure's response to the NOV in
determining that an NAL was appropriate under the
circumstances of this case. Furthermore, as discussed below,
we have also reviewed Eure's explanation for the violation and
find that it does not warrant rescission or mitigation of the
9. Eure states that pursuant to a lease agreement dated
January 5, 1999, a third party, Bullseye, was required to
monitor the lights on the Mathews County tower and notify Eure
of any lighting failures. However, the Commission has long
held that licensees and Commission regulatees are responsible
for the acts and omissions of their employees and independent
contractors. See Netcom Technologies, Inc., 16 FCC Rcd 9524,
9526 (Enf. Bur. 2001); MTD, Inc., 6 FCC Rcd 34, 35 (1991);
Wagenvoord Broadcasting Co., 35 FCC 2d 361 (1972). Moreover,
the Commission has made clear that antenna structure owners
will have primary responsibility for maintaining the
prescribed painting and lighting on their antenna structures
and will not be permitted to circumvent this responsibility by
entering into contractual arrangements. See Streamlining the
Commission's Antenna Structure Clearance Procedure and
Revision of Part 17 of the Commission's Rules Concerning
Construction, Marking and Lighting Antenna Structures, 11 FCC
Rcd 4272, 4294-96 (1995) (``Streamlining``); see also 47
C.F.R. § 17.6(a). In Streamlining, the Commission stated that
``[n]otwithstanding private contractual arrangements ...
structure owners, are and will continue to be, held
responsible for maintaining the prescribed structure painting
and/or lighting. Any resolution concerning a failure to
perform pursuant to a private contractual arrangement,
including appropriate remedies or damages, are matters to be
resolved in a local forum.'' 11 FCC Rcd at 4296. Thus, we
conclude that Eure's lease agreement with Bullseye did not
relieve Eure of its primary responsibility to maintain the
lighting on the Mathews County tower and that Eure is
responsible for any failure by Bullseye to maintain the tower
10. We also conclude that the failure to exhibit red
obstruction lighting on the Mathews County tower after sunset
on June 9, 2001 was a ``willful'' violation of Section
17.51(a) of the Rules. Section 312(f)(1) of the Act provides
that ``the term `willful,' when used with reference to the
commission or omission of any act, means the conscious or
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 ....''9 This definition applies
to the term ``willful'' as used in Section 503(b) of the Act.
See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991). Moreover, a violation resulting from an inadvertent
mistake or a failure to become familiar with the FCC's
requirements is considered a willful violation. See PBJ
Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992);
Standard Communications Corp., 1 FCC Rcd 358 (1986); Triad
Broadcasting Co., Inc., 96 FCC 2d 1235, 1242 (1984). The
violation in this case was willful because Bullseye should
have known about the malfunctioning top beacon. Section
17.47(a) of the Rules requires tower owners to ensure that
tower lights are functioning properly by making daily visual
observation of the lights, by making daily visual observations
of a properly maintained indicator designed to register any
failure of such lights, or by properly maintaining an
automatic alarm system designed to detect any failure of such
lights and provide notification of such failure to the
owner.10 In addition, Section 17.47(b) of the Rules requires
tower owners to inspect at least every three months all
automatic or mechanical control devices, indicators and alarm
systems associated with the tower lighting to ensure that such
apparatus is functioning properly.11 Based on the record
before us, it appears that Bullseye never reprogrammed the
dial-up device used to monitor the Mathews County tower
lighting after Eure sold its FM station in October 2000 and
did not inspect the device even once between October 2000 and
June 9, 2001 to ensure that it was functioning properly. As
noted above, Eure is responsible for the acts and omissions of
its contractor, Bullseye. Therefore, Eure's violation of
Section 17.51(a) was willful. Because we conclude that Eure's
violation was willful, we need not address its argument that
the violation was not repeated.
11. We have examined Eure's response to the NAL pursuant to
the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Eure has failed to provide sufficient
justification for canceling or mitigating the proposed
forfeiture amount. Therefore, we affirm the forfeiture of
eight thousand dollars ($8,000).
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,12 Eure Family Limited Partnership, IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eight thousand dollars
($8,000) for failure to exhibit red obstruction lighting on
its antenna structure between sunset and sunrise in willful
violation of Section 17.51(a) of the Rules.
13. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.13 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200132640006 and FRN
0005-0271-72. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables Group,
445 12th Street, S.W., Washington, D.C. 20554.14
14. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Eure
Family Limited Partnership, 4026 George Washington Hwy.,
Yorktown, Virginia 23692, and to its counsel, Gary S.
Smithwick, Esq., Smithwick & Belendiuk, P.C., 5028 Wisconsin
Avenue, N.W., Suite 301, Washington, D.C. 20016.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.51(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132640006 (Enf. Bur., Norfolk Office, released August 16,
3 Tower owners are required to report any obstruction lighting
outages to the nearest Flight Service Station or FAA office
immediately if the outage is not corrected within 30 minutes.
See 47 C.F.R. § 17.48(a). The FAA then issues a NOTAM, a written
advisory to aircraft pilots regarding a hazard or potential
hazard of which they should be aware. A NOTAM expires
automatically after 15 days, unless the tower owner calls the FAA
to extend the NOTAM.
4 The Norfolk Office issued the NOV to Eure Communications,
Inc. because FCC records incorrectly listed Eure Communications,
Inc. as the owner of the Mathews County tower. The response to
the NOV, which was signed by C. Wesley Eure on behalf of both
Eure Communications, Inc. and Eure Family Limited Partnership,
indicated that ownership of the tower had been transferred to
Eure Family Limited Partnership. On August 8, 2001, the Norfolk
Office confirmed that the FCC records had been updated to list
Eure Family Limited Partnership as the owner of the Mathews
5 See 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 312(f)(1).
10 47 C.F.R. § 17.47(a).
11 47 C.F.R. § 17.47(b).
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.