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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-02-LA-225
)
Capstar Radio Operating Company ) NAL/Acct. No. 200332900001
License of station KIXW-AM )
Registered Owner of ASR Number ) FRN 0005-7937-16
1018351 )
Apple Valley, California
FORFEITURE ORDER
Adopted: August 10, 2004 Released: August 12,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of four thousand,
six hundred dollars ($4,600) to Capstar Radio
Operating Company (``Capstar''), licensee of station
KIXW-AM, for willful and repeated violation of
Sections 17.4(g) and 17.57 of the Commission's Rules
(``Rules'').1 The noted violations involve Capstar's
failure to display the antenna structure registration
(``ASR'') number near the base of its antenna
structure and failure to notify the Commission of a
change in ownership information, respectively.
2. On December 30, 2002, the Commission's Los Angeles
Field Office (``Los Angeles Office'') issued a Notice
of Apparent Liability for Forfeiture (``NAL'') in the
amount of $5,000 to Capstar.2 Capstar responded to
the NAL through counsel on January 30, 2003. In its
response, Capstar requested either cancellation or
substantial reduction of the forfeiture.
II. BACKGROUND
3. On June 5, 2002, as part of a field-wide targeted
tower safety compliance program, agents from the Los
Angeles Office inspected the tower, antenna structure
number 1018351, used by Capstar for station KIXW-AM
in Apple Valley, California. At the time of
inspection, however, the FCC's ASR database listed
Ruby Broadcasting, Inc., as the registered owner of
the antenna structure number 1018351, not Capstar.
When the agents arrived at the tower for inspection,
they also observed that no ASR number was displayed
at or near the base of the tower.
4. On December 30, 2002, the Los Angeles Office issued
an NAL to Capstar finding that Capstar willfully and
repeatedly violated Sections 17.4(g) and 17.57 of the
Rules by failing to display the ASR number near the
antenna structure's base and failing to notify the
Commission of a change in ownership information for
the tower. Capstar responded to the NAL on January
30, 2003 requesting cancellation or reduction of the
forfeiture, alleging that the agents' inspection of
the antenna structure site was improper, and stating
that it instituted prompt remedial action to correct
the noted violations.
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) (``Policy Statement''). In
examining Capstar'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.5
6. Section 17.4(g) of the Rules requires, in pertinent
part, that, ``the Antenna Structure Registration
Number must be displayed in a conspicuous place so
that it is readily visible near the base of the
antenna structure.''6 At the time of the Commission
inspection on June 5, 2002, Capstar failed to post
the ASR number for the tower, as required by Section
17.4(g). Section 17.57 of the Rules requires antenna
structure owners to immediately notify the
Commission, using FCC Form 854, upon any change in
ownership information.7 When agents from the Los
Angeles Office inspected the antenna structure on
June 5, 2002, ASR number 1018351 was registered to
Ruby Broadcasting, Inc. Capstar, which acquired
ownership of the tower in September of 2000, failed
to timely notify the Commission of the ownership
change pursuant to Section 17.57. Not until October
11, 2002, after an inquiry from a Los Angeles Office
agent, did Capstar file the required updated
ownership information with the Commission.
7. Capstar disputed neither its failure to post the ASR
number, nor its outdated ownership information on
file with the Commission. Instead, Capstar contended
that an Alternative Broadcast Inspection Program
(``ABIP'') agreement shielded it from random
inspections by Los Angeles Office agents, and, as a
result, the proposed forfeiture should be reduced or
cancelled. 8 Capstar argued that the agents'
``drive-by'' inspection of the antenna structure
violated the terms of the ABIP agreement.
Specifically, Capstar claimed that, under the ABIP
agreement, the Commission agreed to abort any routine
inspection if the station demonstrated that it
requested and paid for an alternative inspection by
the California Broadcasters Association (``CBA''). In
support of this claim, Clear Channel Communications
Inc., (``Clear Channel''), owner of Capstar, provided
a copy of its request for an alternative CBA
inspection of Capstar's broadcast station.
8. Capstar's claims notwithstanding, the Los Angeles
Office's inspection of the antenna structure in use
by Capstar was not precluded by the above referenced
ABIP agreement. Initially, we note that, at the time
of the inspection, Capstar held no valid certificate
of compliance. Therefore, the ABIP agreement failed
to afford Capstar a two year protection from
inspection by Los Angeles Office agents.9 Further,
assuming that Capstar obtained a certificate of
compliance prior to the date of inspection, the
specific terms of the ABIP agreement entitled the Los
Angeles Office to inspect any station during the
protected two year period so long as the inspection
was undertaken as part of a targeted compliance
program.10 The inspection by Los Angeles Office
agents on June 5, 2002 was part of a targeted
compliance program, a field-wide targeted tower
safety compliance program, and therefore was not
barred by the terms of the ABIP agreement.11
Specifically, as part of a targeted compliance
program, the inspection was not routine, and the Los
Angeles Office was therefore not obligated to abort
its proceedings with regard to the observed
violations.12
9. In its response, Capstar represented that it took
corrective actions, specifically including posting
the tower's ASR number near the tower's base, prior
to being notified in October, 2002, of the violations
discovered by the Los Angeles Office agents during
their June 5, 2002, inspection. This remedial action
constitutes good faith, and merits a reduction of the
forfeiture assessed for Capstar's violation of
Section 17.4(g) to $1,600.13 We note, however, that
Capstar took no remedial action with respect to its
inaccurate tower ownership information on file with
the Commission until October 11, 2002, after
receiving notification of its violation of Section
17.57 of the Rules from a Los Angeles Office agent.
Therefore, Capstar's subsequent remedial action with
respect to its violation of Section 17.57, while
commendable, fails to mitigate its violation of that
Section, and thus presents no basis for the
Commission to reduce or cancel the assessed $3,000
forfeiture for its violation of Section 17.57.14
Accordingly, we find that Capstar willfully15 and
repeatedly16 violated Sections 17.4(g) and 17.57 of
the Commission's Rules and reduce the total
forfeiture amount to $4,600.
10. We have examined Capstar'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 Capstar willfully and
repeatedly violated Sections 17.4(g) and 17.57 of the
Commission's Rules, and, although we find no basis
for canceling the proposed forfeiture, we reduce the
total forfeiture amount to $4,600 based on Capstar's
good faith effort to comply with Section 17.4(g) of
the Commission's Rules.
IV. ORDERING CLAUSES
11. 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,17 Capstar Radio Operating
Company IS LIABLE FOR A MONETARY FORFEITURE in the
amount of four thousand, six hundred dollars ($4,600)
for failure to provide an ASR number at the base of
its tower structure and failure to notify the
Commission of a change in ownership information in
violation of Sections 17.4(g) and 17.57 of the Rules,
respectively.
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.18
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. 200332900001 and FRN 0005-7937-16.
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.
20554.19
13. IT IS FURTHER ORDERED that copies of this Order shall
be sent by Certified Mail, Return Receipt Requested,
and by First Class Mail to Capstar Radio Operating
Company, 2625 S. Memorial Drive, Suite A, Tulsa,
Oklahoma 74129, and its counsel, Dorann Bunkin, Esq.,
Wiley Rein & Fielding, 1776 K Street N.W.,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 17.4(g), 17.57.
2 Notice of Apparent Liability for Forfeiture, File No. EB-02-LA-
225, NAL/Acct. No. 200332900001 (Enf. Bur., Los Angeles Office,
released December 30, 2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 C.F.R. § 17.4(g).
7 47 C.F.R. § 17.57.
8 See Capstar Response at Exhibit B, ABIP Agreement (``ABIP
Agreement''). The ABIP agreement then in effect between the Los
Angeles Field Office and the California Broadcasters Association
(``CBA'') provided that the CBA would offer contract inspection
services for a fee to CBA member stations. The specific language
of the agreement states, in part, that once the FCC receives
notice of a station's compliance from the CBA ``the Los Angeles
Enforcement Bureau Office will promise not to perform a random
routine inspection of the station for a period of two years,''
and further that ``that the FCC also agrees to abort any
attempted routine inspection upon a showing that an Association
[CBA] inspection has been requested and paid for within the last
60 days....''
9 See ABIP Agreement (``upon receipt of... certification, the
[Los Angeles Office]... will promise not to perform a random
routine inspection of the station for a period of two years from
the date of certification'') (emphasis added); see also State
Broadcasting Corp., 19 FCC Rcd 4668, 4669-4670 (Enf. Bur. 2004)
(concluding that State was not entitled to the protection of the
ABIP agreement during the stipulated period, where State failed
to obtain a valid certificate of compliance prior to Commission
inspection). Nothing in the Agreement provided an exemption from
routine inspections based on a request for an ABIP inspection.
10 See ABIP Agreement (``the FCC will only inspect a station
during this [two year protected] period on the basis of an
external requirement, such as a complaint or targeted compliance
program'').
11 See State Broadcasting, 19 FCC Rcd at 4670 (concluding that
inspection as part of a targeted tower safety compliance program
was valid during an ABIP protected period).
12 See ABIP Agreement (``The FCC agrees to abort any routine
inspection....'') (emphasis added); see also Clear Channel
Broadcasting Licenses, Inc., 19 FCC Rcd 8100, ¶ 8 (concluding
that inspection pursuant to a targeted tower safety compliance
program was not a routine inspection); State Broadcasting, 19 FCC
Rcd at 4670 (concluding that, where the inspection was not
routine, the agents were not required to abort).
13 See Max Media of Montana, L.L.C., 18 FCC Rcd 21375, 21378 ¶ 11
(Enf. Bur. 2003) (reducing a proposed forfeiture from $8,000 to
6,000 for antenna structure lighting violations because the
licensee had undertaken corrective action and had restored the
structure's lighting prior to receiving notice of the Field
Office's inspection and/or action based on such inspection); see
also Barinowski Investment, Co., 18 FCC Rcd 25067, 25069 ¶ 7
(Enf. Bur. 2003) (reducing a proposed forfeiture from $10,000 to
$8,000 for antenna structure painting violations because the
licensee had identified the problem and had pre-paid to repaint
the structure prior to the Field Office's inspection and
subsequent action on the violation).
14 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 7891
(2002), forfeiture ordered, 17 FCC Rcd 21866, 21875-76 ¶¶ 26-28
(2002) (finding that a downward adjustment of an aggregate
forfeiture was not warranted where the carrier lacked an
effective antenna compliance program at the time of the
violations and only corrected such violations after the
Commission brought them to its attention); Odino Joseph, 18 FCC
Rcd 16522, 16524 at ¶ 8 (Enf. Bur. 2003) (finding that a downward
adjustment was not warranted, where a pirate broadcaster
terminated all transmissions after the Commission's
investigation).
15 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, 4388 (1991) (forfeiture to an AM radio station for
willful violation of sponsorship identification, even though the
AM radio station did not know its actions violated any rule or
law), recon. denied, 7 FCC Rcd 3454 (1992).
16 Section 312(f)(2) of the Act provides that ``[t]he term
`repeated,' ... means the commission or omission of such act more
than once or, if such commission or omission is continuous, for
more than one day.'' 47 U.S.C. § 312(f)(2). 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. No. 97-765, 97th Cong. 2d Sess. 51
(1982). See also Calvary Communications, 18 FCC Rcd 18172, 18174
(2003) (finding that a lighting violation that occurred on two
consecutive days was enough to warrant a ``repeated''
distinction).
17 47 C.F.R. §§ 0.111, 0.311, 0.180(f)(4).
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.