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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Westshore Broadcasting, Inc. ) File No. EB-02-TP-331
Licensee of AM Radio Station WOCA in Ocala, )
Florida, and Owner of Antenna Structure #1027385 ) NAL/Acct.
No. 200332700005
St. Petersburg, Florida )
) FRN 0003-7580-00
FORFEITURE ORDER
Adopted: April 1, 2004 Released: April 5, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twelve thousand
dollars ($12,000) to Westshore Broadcasting, Inc.
(``Westshore''), licensee of AM station WOCA for willful
and repeated violation of Sections 17.51, 17.57 and
73.49 of the Commission's Rules (``Rules'').1 The noted
violations involve Westshore's failure to light the
antenna structure for station WOCA, to notify the
Commission of a change in the antenna structure's
ownership information, and to enclose WOCA's antenna
structure within an effective locked fence.
2. On November 1, 2002, the Commission's Tampa, Florida,
Field Office (``Tampa Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Westshore
for a forfeiture in the amount of twenty thousand
dollars ($20,000).2 Westshore responded to the NAL on
December 3, 2002.
II. BACKGROUND
3. On July 1, 2002, the Tampa Office received a complaint
indicating that the lights on WOCA's antenna structure
(#1027385), which Westshore owned, had been dark for at
least six months. After receiving the complaint, an
agent at the Tampa Office phoned the Federal Aviation
Administration (``FAA'') and found that there was no
Notice to Airmen (``NOTAM'') 3 on file for antenna
structure #1027385.4 Later on the same day, agents from
the Tampa Office inspected WOCA's transmitting
facilities. During their inspection, the agents
observed that the gate to the fence surrounding antenna
structure #1027385 was unlocked. When the agents
covered the tower lights' photocell, they observed that
the tower lights did not illuminate.
4. On July 2, 2002, agents from the Tampa Office again
inspected station WOCA's transmitting facilities and
again observed that the gate to the fence surrounding
antenna structure #1027385 was unlocked. The station
manager stated that the antenna structure lighting
failed on or about September 26, 2001, and had not been
repaired because Westshore's service company refused to
climb the tower due to its poor structural integrity.
5. An agent from the Tampa office subsequently checked the
FCC's Antenna Structure Registration (``ASR'') data base
and found that antenna structure #1027385 was still
registered in the name of a previous owner.
6. On November 1, 2002, the Tampa Office issued a NAL for
a forfeiture in the amount of $20,000 to Westshore for
willful and repeated violation of Sections 17.51, 17.57
and 73.49 of the Rules. In its response, filed December
3, 2002, Westshore admits that its tower lights failed
on September 26, 2001; that the gate to the fence around
its tower was unlocked at the time of the FCC inspection
on July 2, 2002; and that its tower registration
information was not current at the time of the
inspection. Westshore, however, seeks reduction or
cancellation of the proposed monetary forfeiture.
Westshore contends that it timely notified the FAA of
the lighting outage, that its tower could not be
relighted because it was unsafe to climb and that it
``has been working in good faith to correct the outage
and bring the facility into compliance.'' Westshore
states that it was unaware of the fencing and
registration violations. Westshore also argues that, if
the proposed forfeiture is imposed, it will place a
serious financial burden on the company and provides
copies of its 2000 and 2001 federal income tax returns
to support this claim.
III. DISCUSSION
7. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),5
Section 1.80 of the Rules,6 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''). Section
503(b) of the Act requires that the Commission, in
examining Westshore's response, 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
8. According to the ASR data base, at the time of the
inspection by the Tampa agents, red obstruction lighting
was required for WOCA's antenna structure. Section
17.51 of the Rules requires that red obstruction
lighting be exhibited between sunset and sunrise. In
its December 3, 2002, response to the NAL, Westshore
concedes that the red obstruction lighting of antenna
structure #1027385 had not functioned since September
26, 2001. We find that, by failing to relight the tower
for over nine months, Westshore willfully8 and
repeatedly9 violated Section 17.51 of the Rules.10
9. Section 17.57 of the Rules requires the owner of an
antenna structure for which an ASR number has been
obtained to notify the Commission of any change in the
ownership information. Westshore concedes that it did
not do so following an ownership change and that it
acted only after being notified of the violation by the
Commission.11 Additionally Westshore claims it was
unaware of this violation. Westshore's lack of
awareness that it was violating the Rules indicates that
it may not have intended to violate the Rules but does
not negate the willfulness of the violation.12
Moreover, licensees are expected to know and comply with
the Commission's Rules.13 We find that Westshore
willfully and repeatedly violated Section 17.57 of the
Rules.
10. Section 73.49 of the Rules requires the owner of an
antenna structure to enclose it within an effective
locked fence. The FCC agents' observations establish
that the gate in the fence around Westshore's antenna
structure was unlocked on July 1 and 2, 2002. Westshore
claims that it was unaware of this violation and states
its belief that grounds personnel or power company
personnel accidentally left the gate open. Because
Westshore has not provided any evidence of an inspection
routine for checking the condition of the gate or to
determine whether grounds personnel or power company
personnel had left it open, we find Westshore
responsible for the gate's being left open on July 1 and
2, 2002.14 We, accordingly, find that Westshore
willfully and repeatedly violated Section 73.49 of the
Rules.
11. No mitigation is warranted on the basis of Westshore's
correction of the violations. As the Commission stated
in Seawest Yacht Brokers, 9 FCC Rcd 6099, 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.'' 15
12. Westshore states that it notified the FAA within 30
minutes after discovery of the outage on September 26,
2001, and arranged on September 27, 2001, to have the
lights repaired but did not have them repaired at that
time because the antenna structure was unsafe to climb.
We agree with Westshore that the antenna structure was
not safe to climb. However, the antenna structure was
still unilluminated on the day of the inspection, more
than nine months after the outage began.16 Because
Westshore's unilluminated tower was a hazard to air
navigation, it was essential for Westshore to correct
the violation within a reasonable amount of time.17 We
find that the nine months between the discovery of the
outage and the FCC inspection was not a reasonable
period to leave the lighting violation uncorrected.
Westshore's response to the NAL indicates that, prior to
the FCC investigation, Westshore had ordered and
received a new tower but had not erected because it was
unable to get permission from the City of Ocala,
Florida, to erect it. While these circumstances do not
excuse such a lengthy outage, we find that Westshore's
actions in arranging for a new antenna structure
demonstrate good faith and that the portion of the
proposed forfeiture imposed on Westshore for violation
of Section 17.51 of the Rules should be reduced from
$10,000 to $5,000. We find, thus, that the total
forfeiture amount should be reduced from $20,000 to
$15,000.
13. Finally, Westshore argues that, if the proposed
forfeiture is imposed, it will place a serious financial
burden on the company. In support of its financial
hardship claim, Westshore submits copies of its 2000 and
2001 federal income tax returns. The Commission has
determined that, in general, a licensee's gross revenues
are the best indicator of its ability to pay a
forfeiture.18 After reviewing the financial data
submitted, we find that the proposed monetary forfeiture
should be further reduced to $12,000. 19
14. We have examined Westshore'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 Westshore
willfully and repeatedly violated Sections 17.51, 17.57
and 73.49 of the Rules. We also conclude that, while
cancellation of the proposed $20,000 monetary forfeiture
is not warranted, a reduction to $12,000 is justified.
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,20 Westshore Broadcasting, Inc.,
IS LIABLE FOR A MONETARY FORFEITURE in the amount of
twelve thousand dollars ($12,000) for failure to light
its antenna structure, to notify the Commission of a
change in the antenna structure's ownership information,
and to enclose the antenna structure within an effective
locked fence, in willful and repeated violation of
Sections 17.51, 17.57 and 73.49 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.21 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. 200332700005 and FRN 0003-7580-
00. 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. 20554.22
17. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Westshore Broadcasting, Inc., 311 112th
Avenue, N.E., St. Petersburg, Florida 33716.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 17.21(a), 17.57 and 73.49.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232700005 (Enf. Bur., Tampa Office, released November 1,
2002).
3 Section 17.48(a) of the Rules, 47 C.F.R. § 17.48(a),
requires tower owners to immediately report lighting outages that
cannot be corrected within 30 minutes to the FAA. When the FAA
receives a report of a lighting outage, it issues a ``NOTAM''
concerning the outage.
4 According to records provided by Westshore, the most recent
NOTAM was issued on May 8, 2002.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 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).
9 As 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).
10 See, e.g., Media Broadcasting Corporation, 17 FCC Rcd 24583
(Enf. Bur. 2002).
11 A check of the ASR data base indicates that Westshore
updated the ownership information on March 14, 2003.
12 See Southern California Broadcasting Co., supra.
13 Sitka Broadcasting Co., Inc., 70 FCC 2d 2375, 2378 (1979).
14 See, e.g., Tidewater Communications, Inc., 17 FCC Rcd 8586,
8588 (Enf. Bur. 2002) (failure of automated alarm system
inadequate to overcome finding of willfulness of tower lighting
violation where there is no evidence that tower owner ever
monitored alarm system or tower lighting); recon. granted, 18 FCC
5524 (Enf. Bur. 2003) (forfeiture cancelled where tower owner
produced evidence that it monitored tower lighting two days prior
to the light outage); and AT&T Wireless Services, Inc., 17 FCC
Rcd 21866, 21873 (2002) (forfeiture imposed for willful violation
where there is no evidence of original compliance or of periodic
inspections to learn of noncompliance). Cf. Vernon Broadcasting,
60 RR 2d 1275 (1986) (forfeiture reduced where licensee regularly
inspected tower fencing and found it to be in good condition just
prior to FCC inspection).
15 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
16 Westshore actually did not correct the violation until 19
months after the discovery of the outage. According to the
Commission's ASR data base, antenna structure #1027385 was
dismantled on or about May 20, 2003. The Commission's records
also indicate that station WOCA is now transmitting from a new
190 foot tower that is not required to be registered or
illuminated.
17 See 47 C.F.R § 17.56.
18 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1992).
19 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); 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 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues).
20 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
21 47 U.S.C. § 504(a).
22 See 47 C.F.R. § 1.1914.