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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Media Broadcasting Corporation ) File No. EB-02-NF-019
)
Owner of Antenna Structure ) NAL/Acct. No. 200232640005
Registration # 1011741 )
Winston-Salem, North Carolina ) FRN 0006-7563-73
FORFEITURE ORDER
Adopted: December 3, 2002 Released: December 5,
2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand
dollars ($6,000) to Media Broadcasting Corporation
(``Media'') for willful and repeated violation of
Sections 17.4(g) and 17.51(a) of the Commission's Rules
(``Rules'').1 The noted violations involve Media's
failure to post its antenna structure registration
(``ASR'') number and its failure to exhibit red
obstruction lighting on its antenna structure between
sunset and sunrise.
2. On June 13, 2002, the Commission's Norfolk, Virginia,
Resident Agent Office (``Norfolk Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to
Media for a forfeiture in the amount of twelve thousand
dollars ($12,000).2 Media filed its response to the NAL
on July 16, 2002.
II. BACKGROUND
3. Media is the licensee of broadcast station WAAA (AM) in
Winson-Salem, North Carolina, and owns that station's
antenna structure (ASR number 1011741). The ASR for
that tower indicates that red obstruction lighting is
required between sunset and sunrise. On January 22 and
23, 2002, an FCC agent from the Norfolk Office inspected
the WAAA tower after sunset. On both occasions the
agent observed that there was no red obstruction
lighting and that the tower's ASR number was not posted.
On January 24, 2002, the agent 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 WAAA tower.
4. On February 1, 2002, the Norfolk Office issued a Notice
of Violation (``NOV'') to Media for violations which
included Sections 17.4(g) and 17.51(a) of the Rules. In
its response to the NOV, filed on February 20, 2002,
Media stated: that it had notified the FAA of the
lighting outage prior to July 2001, when WAAA
temporarily went silent; that it made several attempts
to get the bulbs replaced, but ``various certified tower
companies'' refused because of the age of the tower and
the danger involved in climbing it; and that it believed
the close proximity of a tower with lighting minimized
the risk of an accident. Media's response did not
indicate whether it had posted the station's ASR number.
5. On June 13, 2002, the Norfolk Office issued a NAL for a
forfeiture in the amount of $12,000 to Media for failure
to post the ASR number, in violation of Section 17.4(g)
of the Rules, and for failure to exhibit red obstruction
lighting on the antenna structure between sunset and
sunrise, in violation of Section 17.51(a) of the Rules.
In its response, filed July 16, 2002, Media did not
dispute the violations. Media argued, however, that the
proposed monetary forfeiture should be cancelled or
``greatly reduced'' because of its inability to pay and
because of the steps taken to correct the violations.4
Media asserted that station WAAA went off the air on
July 9, 2001, because of a dispute with the station's
landlord and did not resume operation until July 6,
2002. Media further asserted that it did not correct
the lighting outage immediately because it had no income
while the station was off the air and, therefore, could
not afford the expense of hiring an out-of-state
contractor to correct the outage; and that the deaths of
its president's mother, aunt and best friend also
delayed correction of the outage. Finally, Media
asserted that it would correct the outage ``in just a
few days now.''
6. Media, however, did not correct the outage within a few
days. In a letter to the Commission postmarked August
16, 2002, Media indicates that it did not correct the
outage because of the poor physical condition of the
tower and the potential risk of serious harm to a
climber. Media asserts that it now plans to replace the
tower but does not indicate when it will do so. At the
request of the Norfolk Office, a local police officer
observed the WAAA tower at about 1:00 a.m. on October
17, 2002. The police officer reported to the Norfolk
Office that the WAAA tower still had no obstruction
lighting.
III. DISCUSSION
7. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act
of 1934, as amended (``Act''),5 Section 1.80 of the
Rules,6 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 Media'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 may
require.7
8. Section 17.4(g) of the Rules requires posting the ASR
number in a conspicuous place so that it is readily
visible near the base of the tower. Media does not
dispute this violation. Thus, Media willfully and
repeatedly violated Section 17.4(g) of the Rules.
9. 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. Media
does not dispute this violation. Thus, Media willfully
and repeatedly violated Section 17.51(a) of the Rules.
10. Media has not yet corrected either violation. Even if
Media had corrected both violations, no mitigation of
the proposed forfeiture would be warranted on the basis
of correcting the violations. As the Commission stated
in Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994),
``corrective action taken to come into compliance with
Commission rules or policy is expected, and does not
nullify or mitigate any prior forfeitures or
violations.''8
11. However, based on the financial documentation provided
by Media, we conclude that payment of more than $6,000
would be a financial hardship for Media. Therefore, we
will reduce the proposed forfeiture from $12,000 to
$6,000.
12. We have examined Media'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 Media willfully and repeatedly
violated Sections 17.4(g) and 17.51(a) of the Rules, but
we reduce the forfeiture amount from $12,000 to $6,000.
13. The Commission's antenna structure rules are intended
to promote air traffic safety. Accordingly, the
Commission takes compliance with these rules seriously.
We are concerned that Media's tower remains in violation
of these rules even after issuance of the NAL. The
record indicates that Media has made no meaningful
efforts to come into compliance (even after saying that
it would do so) and there is no evidence that Media will
actually come into compliance within the imminent
future. Accordingly, we will require, pursuant to
Section 308(b) of the Act,9 that Media report to the
Enforcement Bureau within thirty (30) days of the
release of this Order the status of the antenna
structure in question. Specifically, Media must report
whether the antenna structure has been dismantled as it
claims it plans to do in its response to the NAL. If
the antenna structure has not been dismantled, Media
must report whether it has corrected the violations that
are the subject of this Order. Media's report must be
submitted in the form of an affidavit signed by an
officer or director of the licensee. If Media fails to
submit such a report or we find that Media has not come
into compliance with our antenna structure rules, we
will consider issuing an Order to Show Cause commencing
a hearing proceeding to revoke Media's licenses.
IV. ORDERING CLAUSES
14. 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,10 Media IS LIABLE FOR A
MONETARY FORFEITURE in the amount of six thousand
dollars ($6,000) for failure to exhibit red obstruction
lighting on its antenna structure between sunset and
sunrise in repeated and willful violation of Sections
17.4(g) and 17.51(a) of the Rules.
15. IT IS ALSO ORDERED that, pursuant Section 308(b) of the
Act, Media must submit the report described in Paragraph
13, above, within 30 days from the release of this
Order, to Federal Communications Commission, Enforcement
Bureau, Technical and Public Safety Division, 445 12th
Street, S.W., Room 7A 820, Washington, D.C. 20554.
16. 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.11 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. 200232640005 and FRN 0006-7563-
73. 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. 20554.12
17. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class Mail and Certified Mail Return
Receipt Requested to Media Broadcasting Corporation,
P.O. Box 11197, Winston-Salem, North Carolina 27116-
1197.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 17.4(g) and 17.51(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232640005 (Enf. Bur., Norfolk Office, released June 13, 2002).
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 Media stated that the number ``FRN 006-5587-53'' is now
posted at the tower site. This is not the number required to be
posted. The number required to be posted is the ASR number,
1011741.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 See also Radio Station KGVL, Inc., 42 FCC 2d 258, 259
(1973); and Executive Broadcasting Corp., 3 FCC 2d 699, 700
(1966).
9 47 U.S.C. § 308(b)
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.