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Before the
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
MEMORANDUM OPINION AND ORDER
Adopted: April 15, 2002 Released: April 17, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
deny a petition for reconsideration filed on January 4, 2002,
by Eure Family Limited Partnership (``Eure''). Eure seeks
reconsideration of a Forfeiture Order1 which issued a monetary
forfeiture against Eure in the amount of $8,000 for failure to
exhibit red obstruction lighting on its Mathews County,
Virginia antenna structure between sunset and sunrise in
willful violation of Section 17.51(a) of the Commission's
Rules (``Rules'').2
II. BACKGROUND
2. 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.
3. On July 2, 2001, the Commission's Norfolk, Virginia
Resident Agent Office (``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.
4. On August 16, 2001, the Norfolk Office issued a Notice
of Apparent Liability for Forfeiture (``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.5 The NAL noted that the base forfeiture amount for
tower lighting violations is $10,000,6 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 did
not dispute that the violation occurred, but argued that that
the violation was not willful because its contractor,
Bullseye, failed to notify it of the extinguished beacon. In
the Forfeiture Order, we rejected this argument, noting that
the Commission has long held licensees and other Commission
regulatees responsible for the acts and omissions of their
employees and independent contractors.
III. DISCUSSION
5. In its petition for reconsideration, Eure argues that
the Forfeiture Order should be vacated because the Bureau did
not consider its explanation of the matter and because the
Forfeiture Order is not supported by probative evidence of a
``willful or repeated'' violation. Specifically, Eure
maintains that the Bureau failed to consider its explanation
that the violation was inadvertent, not willful. Eure asserts
that its conduct was not willful because it did not know that
the beacon was extinguished. In this regard, Eure states that
it had an agreement with a party whose duty it was to monitor
the lights and the party failed to live up to the agreement.
Eure further asserts that if it had known that the beacon was
extinguished, it would have promptly repaired it, and that it
did in fact repair the beacon when it learned of the outage.
6. We reject Eure's assertion that we failed to consider
its explanation for the violation. The Forfeiture Order
discussed Eure's explanation at great length. The fact that
we disagreed with and rejected its explanation does not mean,
as Eure contends, that we ignored its arguments and
``mechanistically'' issued the Forfeiture Order.
7. Moreover, we reject Eure's assertion that the violation
was not willful because its contractor, Bullseye, failed to
inform it that the beacon was extinguished. Eure does not
deny that Bullseye's failure to maintain the lighting on the
antenna structure was willful. Rather, Eure argues that
nothing in the record demonstrates that Eure knew or should
have known about the extinguished beacon and that it cannot be
sanctioned for the actions of its contractor. We find Eure's
argument wholly unpersuasive. That Bullseye may have failed
to live up to its agreement with Eure is a private contractual
matter between Eure and Bullseye and does not negate the
violation in this case. As we explained in the Forfeiture
Order, the Commission has consistently held that licensees and
other Commission regulatees are responsible for the acts and
omissions of their employees and independent contractors under
the doctrine of respondeat superior. See MTD, Inc., 6 FCC Rcd
34, 35 (1991); Wagenvoord Broadcasting Co., 35 FCC 2d 361
(1972); SpectraSite Communications, Inc., 16 FCC Rcd 17668,
17669 (Enf. Bur. 2001); Netcom Technologies, Inc., 16 FCC Rcd
9524, 9526 (Enf. Bur. 2001). Indeed, it is a basic tenet of
agency law that the actions of an employee or contractor are
imputed to the employer and ``the Commission has consistently
refused to excuse licensees from forfeiture penalties where
actions of employees or independent contractors have resulted
in violations.'' See American Paging, Inc. of Virginia, 12
FCC Rcd 10417, 10420 (Wireless Bur., Enf. and Cons. Inf. Div.,
1997) (quoting Triad Broadcasting Company, Inc., 96 FCC 2d
1235, 1244 (1984) (``Triad'')). Thus, it is irrelevant that
the violation is attributable to Eure's contractor because
Eure is liable for the willful acts and omissions of its
contractor.7
8. Eure argues that Southern California Broadcasting Co.,
6 FCC Rcd 4387 (1991) (``Southern California''), a case cited
in the Forfeiture Order, is ten years old and easily
distinguishable from the instant case. However, it is clear
from a plain reading of the Forfeiture Order that we cited
Southern California in support of the proposition that the
definition of the term ``willful'' in Section 312(f)(1) of the
Communications Act of 1934,8 as amended, (``Act'') also
applies to the term ``willful'' as used in Section 503(b) of
the Act.9 Eure does not dispute this proposition. Therefore,
it is immaterial that Southern California is ten years old or
that it is factually dissimilar to the instant case.
9. Eure also attempts to distinguish three other cases
which we cited in the Forfeiture Order. In each of these
cases, the Commission reaffirms that a violation resulting
from an inadvertent mistake is considered a willful violation.
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088
(1992) (``PJB''); Standard Communications Corp., 1 FCC Rcd 358
(1986) (``Standard''); and Triad, 96 FCC 2d at 1242. Eure
asserts that PJB is distinguishable because the licensee in
that case ``knew it was doing the act in question,'' whereas
Eure did not know that the beacon on its tower was
extinguished, and because the violation in that case was
repeated. In addition, Eure asserts that Standard and Triad
are inapposite because the violations in those cases were
repeated. We cited these three cases in the Forfeiture Order
in support of our finding that Bullseye's failure to maintain
the lighting on the antenna structure was willful. Eure does
not dispute this finding. Eure's assertions concerning these
cases appear to be premised on its belief that it is not
responsible for the acts and omissions of its contractor,
which, as discussed above, is erroneous.
10. Finally, Eure argues that the instant case is similar
to Vernon Broadcasting, Inc., 60 RR 2d 1275 (1986)
(``Vernon''), where the Commission cancelled a forfeiture
issued for failure to maintain adequate fencing around an AM
tower in violation of Section 73.49 of the Rules10 after
concluding that the violation was not willful. We disagree.
In Vernon, the Commission determined that the violation was
not willful because the evidence indicated that the licensee
regularly monitored the antenna site. Id. By contrast, in
the instant case, the record clearly shows that neither Eure
nor its contractor monitored the antenna structure. In this
regard, the record indicates that neither Eure nor Bullseye
reprogrammed the telephone dial-up device used to monitor the
tower lighting after Eure sold its FM station in October 2000
and Bullseye did not inspect the device even once between
October 2000 and June 9, 2001 to ensure that it was
functioning properly. It is also apparent from the record
that Eure did nothing to supervise or monitor the activities
of its contractor.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act,11 and Section 1.106 of the Rules,12 Eure
Family Limited Partnership's petition for reconsideration of
the December 5, 2001, Forfeiture Order IS DENIED and the
issuance of the $8,000 forfeiture IS AFFIRMED.
12. 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
13. 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 Eure Family Limited Partnership, 16 FCC Rcd 21302 (Enf. Bur.
2001).
2 47 C.F.R. § 17.51(a).
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
County tower.
5 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132640006 (Enf. Bur., Norfolk Office, released August 16,
2001).
6 See 47 C.F.R. § 1.80(b)(4).
7 Because we conclude that Eure's violation is willful, we
need not address its argument that the violation is not repeated.
8 47 U.S.C. § 312(f)(1).
9 47 U.S.C. § 503(b).
10 47 C.F.R. § 73.49.
11 47 U.S.C. § 405.
12 47 C.F.R. § 1.106.
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.