Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-DL-191
Access.1 Communications Corp.-NY)
) NAL/Acct. No. 200232500009
Owner of Antenna Supporting Structure )
No. 1051379 ) FRN: 0006-1618-55
)
New York, New York )
FORFEITURE ORDER
Adopted: October 28, 2003 Released:
October 30, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand dollars
($2,000) to Access.1 Communications Corp.-NY (``Access.1''),
owner of Antenna Supporting Structure No. 1051379 (``KCUL-FM
Tower''), for willful violation of Section 17.50 of the
Commission's Rules (``Rules'').1 The noted violation involves
Access.1's failure to clean or repaint its antenna structure as
often as necessary to maintain good visibility.
2. On September 30, 2002, the District Director of the
Commission's Dallas, Texas Field Office (``Dallas Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'') to
Access.1 in the amount of ten thousand dollars ($10,000).2
Access.1 filed a response to the NAL on October 30, 2002.
II. BACKGROUND
3. On July 24, 2000, Access.1 notified the Commission that
it consummated the purchase of radio stations KCUL(AM) and KCUL-
FM, Marshall, Texas, on July 21, 2000. In the purchase, Access.1
acquired the KCUL-FM Tower located at 32º 32' 26''N / 094º 24'
4''W in Marshall. Both the Rules and Federal Aviation
Administration specifications require that the KCUL-FM Tower be
painted.
4. On April 17, 2002, an agent from the Dallas Office
inspected the KCUL-FM Tower and determined that the structure's
required obstruction marking appeared to be deteriorating, making
it difficult to distinguish the orange and white bands.
5. On May 5, 2002, the agent returned to the KCUL-FM Tower
and concluded that the required paint bands could not be
distinguished at approximately one fourth of a mile, resulting in
poor visibility of the structure in violation of Section 17.50 of
the Rules.
6. On September 30, 2002, the Dallas Office issued a NAL
to Access.1 in the amount of ten thousand dollars ($10,000) for
willful violation of Section 17.50 of the Rules. Access.1 filed
a response on October 30, 2002, seeking reduction or cancellation
of the proposed forfeiture. Declarations, signed under penalty
of perjury, from Cary Camp, the General Manager of KCUL(AM) and
KCUL-FM, and Jerry Wimberly, President of Mid South Antenna
Specialists, accompanied the response.
7. In response to the NAL, Access.1 argues that the
proposed forfeiture should be canceled because the KCUL-FM Tower
complied with Section 17.50 of the Rules. Mr. Camp explains that
he has been employed in the broadcast industry for over 18 years,
12 of those as owner and general manager of eight radio stations.
Mr. Camp states that, during his years in the industry, he
supervised the maintenance and scheduled the painting of numerous
broadcast towers and that he believed the KCUL-FM Tower complied
with Section 17.50 of the Rules.
8. Mr. Camp notes that in October 2001 he budgeted to have
the KCUL-FM Tower repainted in mid-2002. Mr. Camp states that he
chose this timetable, because, based on his personal inspection
and experience, the paint on the tower had not deteriorated to a
point where it currently violated Section 17.50 of the Rules.
9. In early 2002, Mr. Camp contacted Mr. Wimberly to
schedule repainting of the KCUL-FM Tower around June of 2002.
Mr. Wimberly states in his declaration, that he has painted and
supervised the painting of broadcast towers for 24 years, and
that during that time he has painted or repainted approximately
200 towers. Mr. Wimberly further states that he is familiar with
the Commission's tower painting rule, and believes he can tell
when a tower is not in compliance. Mr. Wimberly asserts that
when Mr. Camp first contacted him, in early 2002, he examined the
KCUL-FM Tower and determined that it complied with the
Commission's painting requirements. He states that he agreed
with Mr. Camp that June of 2002 would be an appropriate time to
repaint the tower.
10. Mr. Wimberly repainted the KCUL-FM Tower on June 15,
2002. Mr. Wimberly declares that even on this date, which was
more than one month after the agent's May 5, 2002 inspection, he
believed the KCUL-FM Tower complied with the Commission's
painting requirements.
11. Access.1 next argues that even if the KCUL-FM Tower did
not comply with Section 17.50 of the Rules, the proposed
forfeiture should still be canceled or reduced because Access.1
acted in good faith to comply with the Commission's Rules. In
his declaration, Mr. Camp states that Access.1 painted the KCUL-
FM Tower on June 15, 2002, as part of regularly scheduled
maintenance, without any knowledge of the agent's inspections,
and prior to the issuance of the NAL.
12. In a similar vein, Access.1 asserts that the forfeiture
should be canceled or reduced because Access.1's conduct is
``precisely that which the Commission has always sought to
obtain--compliance with the Commission's rules in the ordinary
course of business, in the exercise of the licensee's own good
faith judgment, and without Commission intervention.''3
13. Access.1 further argues that the forfeiture amount
should be canceled or reduced because the Commission issued the
NAL without first contacting Access.1 and directing it to remedy
the violation within a certain period of time. Access.1 states
that prior to the issuance of an NAL, the Commission ``usually''
informs a licensee that an inspection is being conducted, advises
the licensee of any failure to comply with the Rules, and gives
the licensee a set time to comply with the Rules. Access.1
concludes that assessing a $10,000 forfeiture, without the
aforementioned process, is arbitrary, capricious, and an abuse of
discretion.
14. Finally, Access.1 argues that the proposed forfeiture
should be reduced based on its history of overall compliance.
III. DISCUSSION
15. The District Director assessed the proposed forfeiture
amount in this case in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),4 Section 1.80
of the Rules,5 and The Commission's Forfeiture Policy Statement
and Amendments of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Forfeiture Policy Statement'').6 In
examining Access.1's response to the NAL, Section 503(b) of the
Act requires the Commission to 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 such other matters as
justice may require.7
16. First, we disagree with Access.1 that the KCUL-FM Tower
complied with Section 17.50 of the Rules. Section 17.50 of the
Rules provides that antenna structures requiring painting shall
be cleaned or repainted as often as necessary to maintain good
visibility. Based on the field agent's observations, that the
tower's painted bands could not be distinguished at approximately
one fourth of a mile, we determine that the KCUL-FM Tower did not
comply with the requirements of Section 17.50 of the Rules. We
find nothing in Access.1's response that warrants overturning the
agent's determination.8
17. Furthermore, we find that Access.1 willfully violated
Section 17.50 of the Rules. The term ``willful'' as used in
Section 503(b) of the Act, does not require a finding that the
rule violation was intentional or that the violator was aware
that it was committing a rule violation.9 The term ``willful''
simply requires that the violator knew it was taking the action
in question, irrespective of any intent to violate the Rules.10
We conclude that Access.1 willfully violated Section 17.50 of the
Rules because Access.1 made a conscious and deliberate decision
not to repaint the KCUL-FM Tower until June 15, 2002.11
18. Access.1 points to the painting schedule, established
by Mr. Camp in October 2001, and the actual painting of the KCUL-
FM Tower, prior to any notice of the inspections or issuance of
the NAL, as evidence of Access.1's good faith efforts to comply
with the Rules. Access.1 argues that these efforts warrant
canceling or reducing the proposed forfeiture. In light of our
finding that Access.1 willfully violated Section 17.50 of the
Rules, we disagree that the forfeiture should be canceled.
However, we agree with Access.1 that identifying the need to
repaint the tower, scheduling the tower for repainting, and
repainting the KCUL-FM Tower prior to any notice of the
inspections or issuance of the NAL merits a reduction of the
proposed forfeiture. We therefore reduce the forfeiture amount
from ten thousand dollars ($10,000) to four thousand dollars
($4,000) based on Access.1's good faith efforts to comply with
Section 17.50 prior to being informed of the violation.12
19. Access.1 also argues that the forfeiture should be
canceled or reduced because its conduct is precisely what the
Commission seeks to obtain.13 However, the Commission has
consistently stressed that it expects full compliance with the
antenna structure rules because of the potential danger to air
navigation;14 in light of our determination that Access.1
violated Section 17.50 of the Rules we do not further reduce the
forfeiture amount based on this argument.
20. Turning to Access.1's argument that the proposed
forfeiture should be reduced based on its history of overall
compliance, we agree and further reduce the forfeiture from four
thousand dollars ($4,000) to two thousand dollars ($2,000).
21. We disagree with Access.1's final argument that the NAL
should be reduced or canceled because Access.1 did not receive
notice of the inspection prior to the issuance of the NAL.15 In
advancing this argument, Access.1 first asserts that the
Commission usually directs licensees to remedy violations within
a set time period prior to issuing a NAL.16 Access.1 concludes
that enforcing this NAL without the ``usual'' prior notice would
be arbitrary, capricious, and an abuse of discretion. We
disagree and note that neither the Commission nor its agents are
obligated to notify a licensee when an inspection occurs or
provide a licensee an opportunity to cure a violation prior to
issuing an NAL.17
22. In summary, we find that Access.1 willfully violated
Section 17.50 of the Rules by failing to clean or repaint the
KCUL-FM Tower as often as necessary to maintain good visibility.
However, based on Access.1's good faith efforts and history of
overall compliance we reduce the forfeiture amount from ten
thousand dollars ($10,000) to two thousand dollars ($2,000).
IV. ORDERING CLAUSES
23. 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,18 Access.1 Communications Corp.-NY IS LIABLE FOR A
MONETARY FORFEITURE in the amount of two thousand dollars
($2,000) for willfully violating Section 17.50 of the Rules.
24. 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 Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment must include the FCC Registration Number
(``FRN'') referenced above, and should also note the NAL/Acct.
No. referenced above. 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
25. IT IS FURTHER ORDERED that a copy of this Order shall
by sent by first class and certified mail, return receipt
requested, to Access.1 Communications Corp., 505 Eight Avenue,
Ninth Floor, New York, New York 10018, and its counsel, .James L.
Winston, Esq., Rubin, Winston, Diercks, Harris & Cooke, L.L.P.,
1155 Connecticut Avenue, N.W. Washington D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.50.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232500009 (Enf. Bur., Dallas Office released September 30,
2002).
3 Access.1's response to the NAL at p. 7, citing the 1998
Biennial Regulatory Review--Streamlining of Mass Media
Applications, Rules, and Processes; Policies and Rules, 13 FCC
Rcd 23056 at para. 23 (1998) (``Biennial Regulatory Review'').
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 U.S.C. § 503(b)(2)(D).
8 See William L. Needham and Lucille Needham, 18 FCC Rcd 5521
(Enf. Bur. 2002) (upholding the field agent's determination that
the tower's painted bands were not clearly visible, despite tower
owner's assertion that it had no difficulty discerning the
painted bands and maintained a painting schedule for the tower).
9 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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).
10 Southern California Broadcasting Co. 6 FCC Rcd at 4388.
11 See Needham, 18 FCC Rcd at 5522 (concluding that the tower
owner acted willfully in failing to repaint a tower when the
tower owner was aware of the condition of the paint, but chose
not to repaint the tower).
12 See Radio One Licenses, Inc., 18 FCC Rcd 15964 (2003).
13 Access.1 cites the Biennial Regulatory Review at paragraph 23
as evidence of the type of conduct the Commission expects from
its licensees. We disagree with Access.1 that the Biennial
Regulatory Review is relevant to determining whether a licensee
complied with Section 17.50 of the Rules. Paragraph 23 of the
Biennial Regulatory Review explains why the Commission recast
certain Mass Media Bureau forms into ``yes'' or ``no''
certification formats, with an ``explanation'' checkbox.
14 See SpectraSite Communications Inc., 17 FCC Rcd. 7884 (2002).
15 Neither 47 U.S.C. § 503(b) nor 47 C.F.R. §§ 1.80 and 1.89
require the Commission to issue a Notice of Violation prior to
the issuance of a NAL.
16 The fact that Access.1 cited five cases where the Commission
gave notice prior to issuing a NAL does not establish that the
Commission is obligated to give such notice.
17 See AT&T Wireless Services Inc., 17 FCC Rcd 21866, 21871 n. 20
(2002) (enforcing a forfeiture issued without a Notice of
Violation). See also Missouri RSA, 18 FCC Rcd 12653, 12654 (Enf.
Bur. 2003) (``Nothing in the Communications Act or the
Commission's Rules entitles a licensee to an opportunity to
correct a violation prior to the issuance of a NAL. Licensees
cannot expect simply to sit back and await Commission findings of
violations before taking appropriate steps to ensure compliance
with Commission rules.'').
18 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
19 47 U.S.C. § 504(a).
20 47 C.F.R. § 1.1914.