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 )
)
Fun Media Group, Inc. ) File Number EB-02-AT-379
Owner of Antenna Structure )
#1043249 in ) NAL/Acct. No. 200332480012
Scant City, Alabama )
Arab, Alabama ) FRN: 0007-3298-65
)
)
FORFEITURE ORDER
Adopted: June 4, 2004 Released: June 8, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000), to Fun Media Group, Inc. (``Fun Media Group''), owner
of antenna structure # 1043249 in Scant City, Alabama, for
willful violation of Section 17.50 of the Commission's Rules
(``Rules'').1 The noted violation involves Fun Media Group's
failure to maintain good visibility of the required antenna
structure obstruction marking.
2. On December 6, 2002, the District Director of the
Commission's Atlanta, Georgia Field Office (``Atlanta Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'')2
in the amount of ten thousand dollars ($10,000) to Fun Media
Group for willful and repeated violation of Section 17.50. Fun
Media Group filed a response to the NAL on January 13, 2003,
which it supplemented on January 21, 2003 and April 23, 2003.
II. BACKGROUND
3. Fun Media Group is the registered owner of a 500-foot
tall antenna structure located in Scant City, Alabama. This
structure is assigned antenna structure registration (``ASR'') #
1043249. The structure is assigned obstruction lighting and
marking requirements that include alternate painted bands of
aviation orange and white.
4. On October 29, 2002, the Atlanta Office received a
complaint from the pilot of a private airplane that the instant
tower was severely rusted causing it to blend in with the area
terrain. On October 30, 2002, an agent from the Atlanta Office
inspected antenna structure registration # 1043249 from
distances of 100 feet to one-quarter mile and observed that the
severely chipped and faded paint of the structure precluded good
visibility of the antenna structure in violation of Section 17.50
of the Commission's Rules.
5. On December 6, 2002, the District Director of the
Atlanta Office issued a NAL for a $10,000 forfeiture to Fun Media
Group for failure to maintain good antenna visibility in willful
and repeated violation of Section 17.50 of the Rules. Fun Media
Group filed a response to the NAL on January 13, 2003. In its
response Fun Media Group disagreed that the tower structure was
either chipped or rusted and asserted that prior to the NAL
receipt, it reviewed the structure multiple times during 2002,
and saw no chipping or rust. It further stated it had
considered painting the tower structure that summer, but chose
not to do so. The response further alleged that the agent
observed the tower from a distance, making observation of any
chipped paint or rust difficult.
6. Fun Media Group submitted a letter of intent3 from a
painting company to demonstrate that it had committed to have the
tower painted prior to receipt of the NAL. Fun Media also
claimed that the FCC agent erred in failing to offer it the
opportunity to correct the alleged violation before issuing the
NAL. Additionally, the licensee submitted statements from two
parties commenting on the good visibility and condition of the
tower.
7. Further, Fun Media Group claimed it has no prior record
of violation with the Commission. Finally, the licensee claimed
it is a small station and submitted tax returns for the years
1999-2002, in support of its inability to pay claim.
III. DISCUSSION
8. The proposed forfeiture amount in this case was
assessed 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 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). In examining Fun Media Group'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 such other matters
as justice may require.6
9. Section 17.50 of the Rules provides that antenna
structures requiring painting under the rules shall be cleaned or
repainted as often as necessary to maintain good visibility.
Antenna structure # 1043249, owned by Fun Media Group, has
specified lighting and painting requirements that include
painting the structure with alternating bands of aviation orange
and white. An agent from the Atlanta Office observed the antenna
structure from distances of 100 feet to one-quarter of a mile and
noted that the antenna structure had chipped and faded orange and
white paint, causing the structure to have an overall dark
appearance. Fun Media Group asserted that it periodically
checked the tower paint and concluded that repainting was not
required. It therefore chose not to repaint the tower prior to
inspection. Based on the agent's conclusions and the licensee's
failure to meet the requirements of Section 17.50, we conclude
that Fun Media Group willfully7 violated this section of the
Rules. See William Needham and Lucille Needham Owners of Antenna
Structure No. 1064409, 18 FCC Rcd 5521, 5522 (Enf. Bur. 2003),
recon. granted on other grounds, DA 04-1272 (Enf. Bur. Released
May 7, 2004).
10. In its response to the NAL, Fun Media Group
presented multiple arguments in support of its position that the
forfeiture should be cancelled. First, Fun Media Group asserted
that the agent observed the tower from a distance, thus, making
observation of whether the tower's paint was chipped or faded
difficult. The agent observed the tower at distances from 100
feet to one-quarter mile, consistent with established procedure
and determined based on his observations and experience the tower
structure paint was clearly and obviously chipped and the paint
faded. The statements by third parties regarding the lack of
rust or good visibility of the tower do not supercede the agent's
determination.
11. Further, Fun Media Group asserts that it arranged
to have the tower painted following the inspection. It is well
established that remedial efforts to correct the violation, after
the violation was discovered by the Commission are not a
mitigating factor. See Seawest Yacht Brokers, 9 FCC Rcd 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.'' See also, Station
KGVL, Inc., 42 FCC 2d 258, 259 (1973).
12. Fun Media Group complained that it was not
provided information regarding the violation and a chance to
rectify the violation prior to the issuance of an NAL, and thus,
claims the forfeiture should be cancelled. There is no
requirement that the Commission issue a Notice of Violation (NOV)
or provide a violator an opportunity to cure a violation prior to
issuance of a Notice of Apparent Liability (NAL). See 47 C.F.R.
§ 1.89; A.T.& T. Wireless Services, Inc., 17 FCC Rcd 21866, 21871
n.20; and WOYK, Inc. 18 FCC Rcd 15181, 15182, fn.8 (Enf. Bur.
2003). Moreover, precedent holds that a failure to clean or
repaint its antenna structure as often as necessary to maintain
good visibility is a serious violation warranting a forfeiture
assessment. See In the Matter of Midwest Tower Partners, LLC, 18
FCC Rcd 12921 (Enf. Bur. 2003); In the Matter of Gold Coast
Broadcasting Company Santa Monica, California, 18 FCC Rcd. 8576
(Enf. Bur. 2003); and In the Matter of Pinnacle Towers, Inc., 18
FCC Rcd 6419 (Enf. Bur. 2003).
13. Finally, we have reviewed the financial
information provided by the Fun Media Group to support its claim
of inability to pay and we find that this information does not
provide a basis for cancellation of the forfeiture as the
forfeiture amount is a small percentage of Fun Media Group's
gross revenues. It is well established that a licensee's gross
revenues are the best indicator of its ability to pay a
forfeiture. 8 We find that Fun Media Group's gross revenues are
well within Commission precedent for a forfeiture of $10,000. 9
14. We have examined Fun Media Group'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 Fun Media Group, Inc. failed to maintain good
visibility of the required antenna structure obstruction marking
in willful violation of Section 17.50 of the Rules. Since we
have found the violation to be willful, we need not address
whether it is repeated as found in the NAL.10 We have reviewed
the Commission's database regarding prior violations and find
that Fun Media Group has no record with the Commission of a prior
violation. Considering the prior good behavior of Fun Media
Group, we agree that the forfeiture amount should be reduced.
Accordingly, we reduce the $10,000 forfeiture proposed by the
Notice of Violation to $8,000 on the basis of a history of
overall compliance with Commission Rules.
IV. ORDERING CLAUSES
15. 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,11 Fun Media Group, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of eight thousand dollars ($8,000) for
failure to clean and repaint its antenna structure to maintain
good visibility, in willful violation of Section 17.50 of the
Rules.
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.12
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.
200332480012 and FRN 0007-3298-65. 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.
20554.13
17. IT IS FURTHER ORDERED that copies of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to Fun Media Group, Inc. 981 North Brindlee Mountain
Parkway, Arab, Alabama 35016 and its counsel, M. Scott Johnson,
Gardner, Canton & Douglas 1301 K Street, N.W. Suite 900, East
Tower, Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.50.
2 Notice of Apparent Liability Forfeiture, NAL /Acct. No.
200332480012 (Enf. Bur. Atlanta Office, released December 6,
2002).
3 Dated November 26, 2002, promising painting of the tower within
three weeks.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 Section 312(f0(2) 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....'' 47 U.S.C. § 312(f)(1). This
definition also applies to Section 503(b). See Southern
California Broadcasting Co., 6 FCC Rcd 4387 (1991).
8 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
(1992).
9 Id. at 2089 (1991) (Forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues). See also, Hoosier Broadcasting Corporation,15 FCC Rcd
8640, 8641 (Enf. Bur. 2002) (Forfeiture not deemed excessive
where it represented approximately 7.6 percent of the violator's
gross revenues); Afton Communications Corp., 7 FCC Rcd 6741, 6742
(Comm. Carrier Bur. 1992) (Forfeiture not deemed excessive where
it represented approximately 3.9 percent of violator's gross
revenues).
10 47 U.S.C. § 312 (a)(4) provides administrative sanctions ``for
willful or repeated violation of, or willful or repeated failure
to observe any provision of this Act or any rule or regulation of
the Commission authorized by this Act or by a treaty ratified by
the United States.'' (Emphasis added).
11 47 C.F.R. §§ 0.111, 0.311, 0.180(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.