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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                   )   File Number EB-02-AT-398
                                                            )
CB Radio, Inc.                     )  NAL/Acct. No.200332480016
                                  )
Elizabethton, Tennessee            )           FRN 0007-8859-81



                   MEMORANDUM OPINION & ORDER

Adopted:  October 21, 2005                   Released:  October 
25, 2005

By the Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.In this Memorandum Opinion and Order (``Order''), we deny 
the Petition for Reconsideration filed by CB Radio, Inc. 
(``CB''), licensee of AM radio station WBEJ in Elizabethton, 
Tennessee.  CB seeks reconsideration of the Forfeiture Order1 
issued by the Enforcement Bureau (``Bureau'') on August 6, 2004.  
In that Forfeiture Order, the Bureau found CB liable for a 
monetary forfeiture in the amount of two thousand four hundred 
dollars ($2,400) for willful and repeated violation of Section 
17.4(a) of the Commission's Rules (``Rules'')2 for failing to 
register its antenna structure.

II.  BACKGROUND

     2.CB Radio, Inc. is the licensee of AM radio station WBEJ 
and the owner of an antenna structure (tower) located in 
Elizabethton, Tennessee.  On September 25, 2001, an agent from 
the Commission's Atlanta, Georgia, Field Office (``Atlanta 
Office'') inspected radio station WBEJ and found that CB had not 
registered WBEJ's 305 foot tower with the Commission.

     3.On October 4, 2001, the Atlanta Office issued a Notice of 
Violation (``NOV'') against CB for failure to register the WBEJ 
tower with the Commission.  On October 29, 2002, the Atlanta 
Office inspected radio station WBEJ a second time and found that 
CB still had not registered WBEJ's tower with the Commission.  On 
January 23, 2003, the Atlanta Office issued a Notice of Apparent 
Liability for Forfeiture (``NAL'') in the amount of three 
thousand dollars ($3,000),3 for apparent willful and repeated 
violation of Section 17.4(a) of the Rules.  In its response to 
the NAL, filed February 24, 2003, CB admitted its tower was not 
registered until February 14, 2003.4  CB gave an account of its 
attempts to register the tower, and sought cancellation of the 
proposed monetary forfeiture.5  On August 6, 2004, the Bureau 
issued a Forfeiture Order finding that CB willfully and 
repeatedly violated Section 17.4(a) of the Rules but reducing the 
forfeiture from $3,000 to $2,400 based upon its ``good faith'' 
attempts to register the tower prior to the second inspection on 
October 29, 2002.  The Bureau, however, found that CB's failure 
to check the status of its filing with the FAA until after the 
second inspection constituted a lack of due diligence.  The time 
period focused on for the NAL and the Forfeiture Order was from 
the Atlanta Office's initial inspection of the antenna structure 
on September 25, 2001, until the NAL was issued on January 23, 
2003.  In its Petition for Reconsideration (``Petition''), filed 
September 7, 2004, CB argues that the Forfeiture Order should be 
vacated, the forfeiture amount cancelled, and the reconsideration 
granted because the Commission acted in an arbitrary and 
capricious manner against CB. 

III. DISCUSSION

     A.   Violation of Section 17.4(a) of the Rules

       1.  Background

     4.          Section 17.4(a) of the Commission's Rules sets 
out requirements to tower owners regarding registration with the 
Commission.  CB's tower required registration with the FAA,6 and 
registration with the FCC by July, 1998.7  Forfeitures for 
violation of this rule have been imposed in numerous cases8 
primarily because the Commission needs to be able to contact the 
tower owner, who is ultimately responsible for compliance with 
the Commission's rules concerning the construction, marking and 
lighting requirements of towers.9 

          2.  Discussion

      5.  CB does not claim that it followed the Commission's 
registration rules.  Rather, CB claims that it tried to follow 
the rules, but could not because the Commission did not respond 
to its inquiries and the registration process was within the 
control of the Commission, and not with CB.  In detail, CB argues 
that the Commission acted in an arbitrary and capricious manner 
when it charged that CB's failure to register its tower was 
``willful and repeated,'' and that the Commission did not 
consider CB's efforts to register its antenna structure before 
the Commission's first inspection on September 25, 2001.  CB also 
asserts that the Bureau did not explain why the cases that CB 
cited in its response to the NAL were apposite.  CB averred that 
it made several attempts to register its tower by filing a ``FCC 
Application for Antenna Structure Registration'' (``ASR 
application'')10 for the antenna in September 1998, and refiled 
another one shortly after an October, 1998, reply from the 
Commission which stated that CB's first application could not be 
granted due to an inconsistency in its registration application.  
CB claims then to have written a letter to the Commission on July 
12, 1999, inquiring about its application, and that it received 
no reply.  After the Atlanta Office's inspection in September, 
2001, and its NOV issued in October, 2001, WBEJ asserts that its 
station manager called the Commission to inquire about the NOV, 
but found no one who could answer her questions.  According to 
CB, the station manager then contacted the Federal Aviation 
Administration (``FAA''), and after a second attempt at filing a 
Form 7460-111 with the FAA, the FAA issued a clearance for the 
tower.  After the FAA clearance was granted in January, 2003, CB 
filed its registration again with the Commission, which the 
Commission granted on February 14, 2003.  Because of these 
attempts to register the tower, CB claimed in its response that 
its violation was not willful, and cited several cases where the 
Commission had reduced or cancelled a forfeiture under similar 
circumstances.

               6.         It is well established that a licensee 
is charged with the responsibility of knowing and complying with 
all the requirements of the Act and the Rules.12  That 
responsibility is not excused because the licensee may have 
attempted to comply but failed.  In fact, there have been several 
cases specifically involving a violation of Section 17.4(a) where 
the licensee has described its attempts to file its tower 
registration, and the Commission has consistently found that such 
attempts do not satisfy the requirements of Section 17.4(a).13  
In Sutro Corporation, for example, the Commission found the 
explanation by the owner of a tower, who made two attempts to 
register its tower, to be inadequate.  The lengthy delays in 
Sutro's filings evinced a lack of diligence that did not entitle 
Sutro to a further reduction of the forfeiture amount.14  Also, 
in B&H Broadcasting Systems, B&H claimed it timely sent the 
required tower registration forms to the Commission.  Because the 
Commission, however, had no evidence of any attempts by B&H to 
register its tower until after B&H had been notified by the 
Dallas Field Office, and B&H offered no evidence, the Commission 
found B&H had violated Section 17.4(a) of the Rules.15  

     7.Similarly, CB claims that it made several attempts to 
file its applications with the Commission and the necessary form 
with the FAA but ``nothing happened.''16  As stated in the 
Forfeiture Order, we found that CB made only ``partial effort'' 
to register the tower and displayed a lack of diligence by 
failing to check the status of its FAA filing until after the 
second inspection.17  As given above, the Rules in Section 17.4 
clearly set out the registration requirements for tower owners.  
Further, the Rules provide that final FAA determination of ``no 
hazard'' has to accompany that registration or ``processing of 
the registration may be delayed or disapproved.''18  The fact 
that CB knew that its tower was not registered and continued to 
use the tower, made CB's violation of Section 17.4(a) of the 
Rules ``willful and repeated.''19  Further, a violation resulting 
from an inadvertent mistake or a failure to become familiar with 
the FCC's requirements also is considered a willful violation.20  
We find CB's efforts to shift the burden of its tower 
registration responsibilities to the Commission by stating that 
registration was within the control of the Commission and not CB, 
to be self-serving and unpersuasive.  Neither were the 
Commission's actions arbitrary and capricious, 21 as demonstrated 
by its consistent holdings in the cases cited above.22

     8.Additionally, CB claims that the Commission acted in an 
arbitrary and capricious manner because the Commission did not 
address, either in the NAL or the Forfeiture Order, CB's efforts 
to register its tower prior to its first inspection in 2001.  As 
the Commission explained in the Forfeiture Order,23 neither CB's 
unsuccessful efforts to contact the Commission, nor the 
violations that occurred prior to the first inspection by the 
Atlanta Office, were used as a basis for the NAL, and thus were 
not discussed.  The fact remains that when the Atlanta Office 
made its inspection in 2001, the tower was not registered, and 
remained unregistered until February, 2003.  Despite several 
alleged efforts to register the tower, CB failed to do so through 
its own lack of diligence. The Forfeiture Order did recognize, 
however, that CB's ``partial effort to register WBEJ's tower 
following the September 25, 2001, inspection does not warrant 
cancellation of the proposed forfeiture, but does warrant a 
reduction from $3,000 to $2,400.''24  

     9.Finally, CB claims that the Commission did not address 
the cases that CB cited in its response.  We do not understand 
how CB can reasonably make this argument, due to the fact that 
the Forfeiture Order clearly distinguishes the three Commission 
cases that CB cited.25  It is not necessary to reiterate that 
explanation.  In its Petition, CB has offered no new evidence nor 
cited any relevant case law to support a cancellation of the 
Forfeiture Order.  We have reviewed carefully CB's arguments 
pursuant to the statutory factors prescribed by Section 
503(b)(2)(D) of the Communications Act of 1934 as amended 
(``Act''),26 and in conjunction with The Commission's Forfeiture 
Policy Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines (``Policy Statement''),27 
and Section 1.80 of the Rules.28  We conclude that CB's Petition 
should be denied and the Forfeiture Order affirmed, finding that 
CB willfully and repeatedly violated Section 17.4(a) of the 
Rules.  As the forfeiture amount has already been reduced from 
the original amount set out in the NAL, we determine that no 
further reduction is appropriate and CB Radio is therefore liable 
for a forfeiture of $2,400.  





IV.          ORDERING CLAUSES

     10.  Accordingly, IT IS ORDERED that, pursuant to Section 
405 of the Act29 and Section 1.106 of the Rules,30 CB Radio, 
Inc.'s Petition for Reconsideration of the August 6, 2004, 
Forfeiture Order IS DENIED.
     11.  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.31  
Payment may be made by credit card to the Commission's Credit and 
Debt Management Center at (202) 418-1995 or by mailing a check or 
similar instrument, payable to the order of the Federal 
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-
8340.  Payment by overnight mail may be sent to Mellon 
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 
15251.   Payment by wire transfer may be made to ABA 
Number 043000261, receiving bank Mellon Bank, and account 
number 911-6106.  Requests for full payment under an installment 
plan should be sent to: Associate Managing Director - Financial 
Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C. 
20554.32 

     12.  IT IS FURTHER ORDERED that a copy of this Order shall 
be sent by First Class and Certified Mail Return Receipt 
Requested to CB Radio, Inc., 626 ½ E. Elk Avenue, Elizabethton, 
TN 37643, and Dennis Kelly, Esq., P.O. Box 41177, Washington DC  
20018-0577.

                              FEDERAL COMMUNICATIONS COMMISSION
                         

                              Kris A. Monteith
                              Chief, Enforcement Bureau


_________________________

1 CB Radio, Inc., 19 FCC Rcd 14869 (Enf. Bur. 2004) (``Forfeiture 
Order'').
2 47 C.F.R. § 17.4(a) requires the owners of existing antenna 
structures that were assigned painting or lighting requirements 
before July 1, 1996, to register those antenna structures no 
later than July 1, 1998.
3 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332480016 (Enf. Bur., Atlanta Office, released January 23, 
2003).  
4 The Commission's records confirm that CB registered WBEJ's 
antenna structure on February 14, 2003.
5 CB Radio, Inc.'s statement in response to Notice of Apparent 
Liability for Forfeiture, (February 24, 2003) (``Response'').
6 CB's antenna structure required notification to the FAA because 
the structure exceeded 200 feet in height.  47 C.F.R. § 17.7(a).  
FAA's approved Form 7460-1 must accompany an FCC registration 
application for an antenna structure. 
7 Also, subsequent to the expiration of the filing period, the 
Commission staff issued a Public Notice warning antenna structure 
owners to register any unregistered antenna structures subject to 
our requirement immediately or face possible monetary forfeitures 
or other enforcement action.  Public Notice, No-Tolerance Policy 
Adopted for Unregistered Antenna Structures,'' 1999 WL 10060 (WTB 
1999).
8 Sutro Corporation, 19 FCC Rcd 15274 (2004); B&H Broadcasting 
Systems, Inc.,19 FCC Rcd 7611(Enf. Bur. 2004); St. Louis Mobile 
Systems Inc., 19 FCC Rcd 17712 (Enf. Bur. 2004); FBS Wireless 
Corporation, 19 FCC Rcd. 19477 (Enf. Bur. 2004), petition for 
reconsideration pending;); NetCom Technologies, Inc., 16 FCC Rcd. 
9524 (Enf. Bur. 2001).
9  See 47 C.F. R. §17.2(c).
10 See FCC Form 854, ``FCC Application for Antenna Structure 
Registration.''
11 CB's antenna structure required notification to the FAA 
because the structure exceeded 200 feet in height.  47 C.F.R. § 
17.7(a).  FAA's approved Form 7460-1 must accompany an FCC 
registration application for an antenna structure. 
12 See Forfeiture Policy Statement, 12 FCC Rcd at 17099; see also 
Sitka Broadcasting Co.,Inc. 70 FCC 2d 2375, 2378 (1979); L.T. 
Simes II and Raymond Simes, 18 FCC Rcd 8977,8980 (Enf. Bur. 
2003); Joy Public Broadcasting Corp., 14 FCC Rcd 11326, 11328 
(CIB 1999). 
13 See cases cited in note 8, supra. 
14 Sutro Corporation, supra at 15277.
15 B&H Broadcasting Systems, Inc., supra at 7613. 
16 Petition, at page 4, referring to its January 23, 2003 
response to the NAL.
17 Forfeiture Order, 18 FCC Rcd at 14870.
18 47 C.F.R. § 17.4(d).
19 Forfeiture Order, at n. 11, citing Southern California 
Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991).
20 See PBJ Communications of Virginia, Inc., 7 FCC Rcd 2088 
(1992); Standard Communications Corp., 1 FCC Rcd 358 (1986); 
Triad Broadcasting Co., Inc., 96 FCC 2d 1235, 1242 (1984).
21 Cf., Press Communications and Emmis Television License 
Corporation of Orlando, 17 FCC Rcd 6739, 6740 (2002) (dismissing 
a claim of ``arbitrary and capricious'').
22  See cases  cited in note  8, supra, and  discussion of  Sutro 
Corporation and B&H Broadcasting Systems, Inc. at ¶ 6, supra.
23  See Forfeiture Order, at note 9.
24 Forfeiture Order, 18 FCC Rcd at 14871.
25 See id.
26 47 U.S.C. § 503(b)(2)(D).
27 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303 
(1999).
28 47 C.F.R. § 1.80.
29 47 U.S.C. § 405. 
30 47 C.F.R. § 1.106.
31 47 U.S.C. § 504(a).
32 See 47 C.F.R. § 1.1914.