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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: October 29, 2002 Released: November 1,
2002
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
deny an application for review filed on May 15, 2002, by Eure
Family Limited Partnership (``Eure'') of a Memorandum Opinion
and Order (``MO&O'')1 issued by the Enforcement Bureau on
April 17, 2002. In that MO&O, the Enforcement Bureau denied a
petition for reconsideration of a Forfeiture Order2 which
assessed an $8,000 forfeiture against Eure 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'').3
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'')4 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 Eure5 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(FM),
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.6 The NAL noted that the base forfeiture amount for
tower lighting violations is $10,000,7 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 inadvertent rather than willful because its
contractor, Bullseye, failed to notify it of the extinguished
beacon. In the Forfeiture Order, the Enforcement Bureau
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. Eure filed a petition for reconsideration of the
Forfeiture Order on January 4, 2002. In the April 17, 2002,
MO&O, the Enforcement Bureau denied Eure's petition, again
concluding that Eure is responsible for the willful acts and
omissions of its contractor.
III. DISCUSSION
5. In its application for review, Eure argues that the
forfeiture should be rescinded because the MO&O is not
supported by evidence of a ``willful'' violation. Eure notes
that the term ``willful'' means the ``conscious and
deliberate'' commission or omission of an act8 and asserts
that there is no evidence of ``conscious'' or ``deliberate''
action by Eure. Relying on the Merriam-Webster Collegiate
Dictionary definitions of ``conscious'' and ``deliberate,''
Eure maintains that the ``willful'' standard requires the
Commission to prove ``that Eure's conduct was done after
perceiving, apprehending, or noticing that the tower light was
out with a degree of controlled thought or observation'' or
``that Eure thought about deliberately or had a formal
discussion before deciding not to report the tower light was
out.'' Eure contends that nothing in the record demonstrates
that it should or could have known about the outage. Rather,
Eure states that it had an agreement with a party whose duty
it was to monitor the lights, Bullseye, and Bullseye failed to
live up to that agreement. Eure also argues that there is no
evidence of a willful violation by Bullseye. Finally, Eure
asserts that it disagrees with Commission precedent holding
that Commission licensees and regulatees are responsible for
the willful acts and omissions of their independent
contractors.
6. We reject Eure's contention that the Commission must
show that Eure knew about the light outage on its tower and
made a deliberate decision not to repair the outage or report
the outage to the FAA in order to establish a willful
violation of Section 17.51(a). It is irrelevant whether Eure
knew about the light outage on its tower because, as the
Bureau correctly concluded in the MO&O, Eure is liable for the
willful acts and omissions of Bullseye. We note that when the
Commission revised the antenna structure rules in 1995, it
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.9 Specifically, 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.''10
7. Moreover, as the Bureau stated in the MO&O, the
Commission has long held that licensees and other Commission
regulatees are responsible for the acts and omissions of their
employees and independent contractors,11 and has
``consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent
contractors have resulted in violations.''12 Eure states that
it disagrees with Wagenvoord Broadcasting Co., a case cited in
the MO&O in which the Commission held that licensees are
responsible for the acts and omissions of their independent
contractors, in that this case has never been reviewed by a
court and provides no reasoning for expanding the policy that
licensees are responsible for the acts of their employees to
include independent contractors.13 However, the fact that
this case has never been reviewed by a court does not negate
its holding. Further, the Commission has explained that under
long established principles of common law, statutory duties
are nondelegable and that employers are routinely held liable
for breach of statutory duties by their independent
contractors.14 Therefore, Eure's lease agreement with
Bullseye does not relieve Eure of its primary responsibility
to maintain the lighting on its tower or its liability for any
failure by Bullseye.
8. In the instant case, Eure had a lease agreement with
Bullseye, which required Bullseye to monitor the tower lights
and notify Eure of any lighting failure.15 There is no
evidence that Bullseye made any attempt to comply with the
tower lighting rule. Neither Eure nor Bullseye reprogrammed
the telephone dial-up device used to monitor the tower
lighting after Eure sold its FM station, WXEZ, in October
2000,16 and Bullseye did not inspect the device even once
between October 2000 and June 9, 2001 to ensure that it was
functioning properly. Thus, Bullseye failed either to monitor
the tower lights daily or to properly maintain an automatic
alarm system as required by the rules,17 which would have led
it to discover the lighting outage. We therefore agree with
the Bureau's finding in the MO&O that Bullseye's conduct was
willful. As explained above, Eure is responsible for
Bullseye's willful conduct. Accordingly, we affirm the
Bureau's conclusion that Eure is liable for an $8,000
forfeiture for failing to exhibit red obstruction lighting on
its antenna structure between sunset and sunrise in willful
violation of Section 17.51(a) of the Rules.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, Section 1.115(g) of
the Rules,18 Eure Family Limited Partnership's application for
review IS DENIED.
10. IT IS FURTHER ORDERED that 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.19 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 Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.20
11. 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
Marlene H. Dortch
Secretary
_________________________
1 Eure Family Limited Partnership, DA 02-878 (released April
17, 2002).
2 Eure Family Limited Partnership, 16 FCC Rcd 21302 (Enf. Bur.
2001).
3 47 C.F.R. § 17.51(a).
4 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.
5 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.
6 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132640006 (Enf. Bur., Norfolk Office, released August 16,
2001).
7 See 47 C.F.R. § 1.80(b)(4).
8 Section 312(f) of the Communications Act of 1934, as
amended, (``Act'') states 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 ....'' 47 U.S.C. §
312(f). The Commission has stated that 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)
(``Southern California'').
9 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); see also 47 C.F.R. §
17.2(c) (``Notwithstanding any agreements made between the owner
and any entity designated by the owner to maintain the antenna
structure, the owner is ultimately responsible for compliance
with the requirements of this part.'').
10 11 FCC Rcd at 4296.
11 See MTD, Inc., 6 FCC Rcd 34, 35 (1991); Wagenvoord
Broadcasting Co., 35 FCC 2d 361 (1972).
12 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)).
13 Eure dismisses the other cases cited in the MO&O in support
of this policy, asserting that they simply reiterate the
Commission's policy that licensees are responsible for the acts
and omissions of their employees and independent contractors.
14 See e.g., Vista Services Corporation, 15 FCC Rcd 20646,
20650 (2000), citing Restatement [Second] of Torts § 409, comment
b at 371 and Alva Steamship Co., Ltd. v. City of New York, 616
F.2d 605, 609 (2d Cir. 1980) (exception to the rule of
nonliability for the negligence of independent contractor is
``the negligence of an independent contractor who performs a duty
imposed by statute on the employer'').
15 Eure asserts that Bullseye misunderstood its legal
obligations under the lease agreement. In support of this
assertion, Eure provided a letter from Jim Campana, one of
Bullseye's principals and manager of Station WSRV, who stated
that he was unaware that the lease agreement required Bullseye to
monitor the tower lights. Mr. Campana further stated that he was
present at the negotiation of the monthly fee under the lease
agreement, but that the other details of the lease agreement were
handled by Bullseye's other principals. In addition, Mr. Campana
stated that after learning of the light outage, he spoke with
Bullseye's engineer, Joe Wetherbee, who told him that there is a
dial-up device to monitor the lights which was programmed to
notify Eure's engineer at WXEZ. Mr. Campana asserted that this
device apparently was never reprogrammed to notify Mr. Wetherbee
when Eure sold WXEZ in October 2000. Thus, while Mr. Campana may
not have been aware of Bullseye's obligations under the lease
agreement, Bullseye's other principals and Bullseye's engineer
were aware that the lease agreement obligated Bullseye to monitor
the tower lights.
16 It is not clear from the record whether Eure informed
Bullseye when it sold the FM station in October 2000 that the
dial-up device had to be reprogrammed.
17 47 C.F.R. § 17.47.
18 47 C.F.R. § 1.115(g).
19 47 U.S.C. § 504(a).
20 See 47 C.F.R. § 1.1914.