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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Renaissance Radio, Inc. ) File No. EB-02-DL-672
Licensee of AM Broadcast )
Station KCAF ) NAL/Acct. No. 200332500005
in Farmersville, Texas )
and Owner of Antenna Structure ) FRN 0003-7277-73
# 1222577 )
in Cado Mills, Texas
Dallas Texas
MEMORANDUM OPINION AND ORDER
Adopted: June 14, 2004
Released: June 16, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''),
we cancel the proposed monetary forfeiture in the amount of
twenty-five thousand dollars ($25,000) issued to Renaissance
Radio, Inc. (``Renaissance Radio''), the licensee of Station
KCAF(AM), Farmersville, Texas and owner of antenna structure
#1222577 in Caddo Mills, Texas. We find that Renaissance
Radio failed to maintain operational Emergency Alert System
(``EAS'') equipment, failed to exhibit all red obstruction
lighting on the antenna structure from sunset to sunrise,
and failed to maintain an effective locked fence around the
base of its AM antenna tower in apparent willful and
repeated violation of Sections 11.35(a), 17.51(a), and 73.49
of the Commission's Rules (``Rules'').1 While we cancel the
forfeiture for a demonstrated inability to pay, we admonish
Renaissance Radio for its willful and repeated violation of
Sections 11.35(a), 17.51(a), and 73.49 of the Rules.
II. BACKGROUND
2. On November 13, 2002, an agent of the Commission's
Dallas, Texas Office (``Dallas Office'') conducted an on-
site inspection of Station KCAF(AM). The inspection
revealed that the electrical system of the station's
centermost antenna structure (#1222577) would not support
operation of the required obstruction lighting when the
station was transmitting. An employee of Station KCAF(AM)
stated that the antenna structure had not been lighted since
the station first began transmitting from that location
around the end of June 2002. In addition, the agent
observed that Renaissance Radio had not installed any
fencing around the base of KCAF's centermost antenna
structure, even though the tower had RF potential at its
base. On November 21, 2001, the agent returned to the KCAF
tower site and found the tower partially enclosed with
temporary plastic construction webbing. A portion of the
webbing, however, sagged almost to the ground, allowing
unrestricted access to the base of the tower. On November
22, 2002, Renaissance Radio informed the Dallas Office that
it had stopped broadcasting to install equipment to allow
operation of the lights on KCAF's centermost tower.
3. On January 28, 2003, in response to a complaint of
overpower operation, the agent again inspected Station
KCAF(AM). The inspection revealed that the station could
not monitor EAS functions during station operation because
it did not have any EAS receiving equipment installed.
Moreover, the station did not have any records of receiving
any EAS tests or activations or of removing EAS equipment
for repair and could not explain why it was missing such
records. An employee of Renaissance Radio stated that EAS
receivers had been installed at one time but they had not
worked since at least August 2002.
4. On April 21, 2003, the Dallas Office issued a
Notice of Apparent Liability for Forfeiture to Renaissance
Radio in the amount of twenty-five thousand dollars
($25,000) for the apparent willful and repeated violation of
Sections 11.35(a), 17.51(a), and 73.49 of the Rules.2 On
May 22, 2003, Renaissance Radio filed a response to the NAL
seeking a cancellation or reduction of the proposed
forfeiture. Renaissance Radio asserts that it promptly
corrected all of the violations after the agent brought such
matters to its attention but before the NAL was issued.
Moreover, it asserts that in October 2002, the EAS equipment
for Station KCAF(AM) was being monitored and tested from its
Dallas studio. Finally, Renaissance Radio states that it is
unable to pay the proposed forfeiture, as it is a debtor in
possession.
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),3 Section
1.80 of the Rules,4 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) (``Forfeiture
Policy Statement''). In examining Renaissance Radio'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.5
6. Renaissance Radio does not dispute that its
centermost antenna structure remained unlit from about June
27 (the date the station began transmitting at that
location) through November 21, 2002 or that the antenna
structure was not enclosed by an effective locked fence
until sometime after November 21, 2002 in apparent violation
of Sections 17.51(a)6 and 73.497 of the Rules. We find that
Renaissance Radio's violations of Section 17.51(a) and 73.49
of the Rules were willful 8 and repeated.9
7. Section 11.35(a) states that: Broadcast stations
... are responsible for ensuring that EAS Encoders, EAS
Decoders and Attention Signal generating and receiving
equipment used as part of the EAS are installed so that the
monitoring and transmitting functions are available during
the times the stations and systems are in operation.10
Renaissance Radio admits that the EAS receivers at the
KCAF(AM) studio were not functioning for a period of time
prior to February 2003. It asserts, however, that during
October 2002 KCAF(AM)'s EAS systems were being ``monitored
and tested'' from its Dallas studio. Renaissance Radio,
however, did not produce EAS logs or records for the Dallas
studio or the KCAF(AM) studio. Nevertheless, assuming its
assertions are true, Renaissance Radio still cannot
demonstrate that EAS equipment was installed and operational
from August 2002, the timeframe its employee states the EAS
receivers became inoperable, to September 2002 and from
November 2002 until February 2003. We find that Renaissance
Radio's violation of Section 11.35(a) of the Rules was
willful11 and repeated.12
8. Renaissance Radio asserts that the proposed
forfeiture should be cancelled because it was a ``first-time
station owner'' that ``moved as promptly as possible to cure
any violations'' as soon as the agent brought the violations
to its attention.13 Although Renaissance Radio became the
licensee of Station KCAF(AM) on September 30, 2002, a month
before the agent's inspection, the principals involved with
Renaissance Radio had operated the station for several
years.14 Moreover, promptly correcting violations after
they have been identified by an agent, while commendable, is
expected and does not warrant a reduction in the forfeiture
amount.15
9. Finally, Renaissance Radio asserts the forfeiture
should be cancelled or reduced because it does not have the
``current financial wherewithal to pay any fine.''16 The
Commission has determined that, in general, a licensee's
gross revenues are the best indicator of its ability to pay
a forfeiture.17 After reviewing its bankruptcy filings and
financial statements, we agree with Renaissance Radio and
are canceling the proposed forfeiture. Nevertheless, we
find that it is appropriate to admonish Renaissance Radio18
for its willful and repeated violation of Sections 11.35(a),
17.51(a), and 73.49 of the Rules.
IV. ORDERING CLAUSES
10. 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,19 the forfeiture in the amount of
twenty-five thousand dollars ($25,000) proposed in the April
21, 2003 Notice of Apparent Liability issued to Renaissance
Radio, Inc. IS CANCELLED.
11. IT IS FURTHER ORDERED that Renaissance Radio, Inc.
IS ADMONISHED for failure to maintain operational Emergency
Alert System equipment, failure to exhibit all red
obstruction lighting on the antenna structure from sunset to
sunrise, and failure to maintain an effective locked fence
around the base of its AM antenna tower at Station KCAF(AM)
in willful and repeated violation of Sections 11.35(a),
17.51(a), and 73.49 of the Rules.
12. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to David A. Schum, President of
Renaissance Radio, Inc., 3301 Northwest Parkway, Dallas,
Texas 75225 and to E.P. Keiffer, Esq., Hance, Scarborough,
Wright, Ginsberg & Brusilow, 1401 Elm Street, Suite 4750,
Dallas, Texas 75202.
FEDERAL COMMUNICATIONS
COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
147 C.F.R. §§ 11.35(a), 17.51(a), and 73.49.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332500005 (Enf. Bur., Dallas Office, April 21, 2003)
(``NAL'').
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
547 U.S.C. § 503(b)(2)(D).
6Section 17.51(a) of the Rules requires that all red
obstruction lighting on antenna structures exceeding 200
feet be exhibited from sunset to sunrise. 47 C.F.R. §
17.51(a). The Antenna Structure Registration for
Renaissance Radio's antenna structure requires that red
obstruction lighting be exhibited at night.
7Section 73.49 of the Rules requires AM antenna towers
having radio frequency potential at the base (series fed,
folded unipole, and insulated base antennas) to be enclosed
within an effective locked fence or other enclosure. 47
C.F.R. § 73.49.
8Section 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).
9As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one
day. The Conference Report for Section 312(f)(2)
indicates that Congress intended to apply this definition
to Section 503 of the Act as well as Section 312. See H.R.
Rep. 97th Cong. 2d Sess. 51 (1982). See Southern
California Broadcasting Company, 6 FCC Rcd 4387, 4388
(1991) and Western Wireless Corporation, 18 FCC Rcd 10319
at fn. 56 (2003).
1047 C.F.R. § 11.35(a).
11See supra note 8.
12See supra note 9.
13See Renaissance Radio Response at 2.
14Renaissance Radio became the licensee of Station KCAF(AM)
on September 30, 2002 when The Watch, Inc. submitted a
change of name form. In that form, The Watch, Inc. stated
that no transfer of control or ownership had occurred. The
Watch, Inc. acquired the station in 1997.
15See AM Broadcast Station KTNC and C.R. Communications,
Inc., DA 99-2960 ¶ 5 (Enf. Bur. 1999); see also AT&T
Wireless Services, Inc., 17 FCC Rcd 21861, 21864-75 (2002);
Sonderling Broadcasting Corp., 69 FCC 2d 289, 291 (1978);
Odino Joseph, 18 FCC Rcd 16522, 16524 ¶ 8 (Enf. Bur. 2003);
South Central Communications Corp., 18 FCC Rcd 700, 702-03
¶ 9 (Enf. Bur. 2003); Northeast Utilities, 17 FCC Rcd 4115,
4117 ¶ 13 (Enf. Bur. 2002).
16See Renaissance Radio Response at 3.
17See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088
(1992).
18Following the NAL, Renaissance Radio submitted several
short-form applications to transfer or assign Station
KCAF(AM). The Watch Ltd. is the current licensee of the
station. A Short-Form Application is only used when the
transfer does not effect a substantial change in control.
See Grace Missionary Baptist Church, 80 FCC 2d 330, 336
(1980). Accordingly, this admonishment applies to all
common principals associated with Renaissance Radio and The
Watch Ltd.
1947 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).