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
)
Entravision Communications
Corporation ) File Number: EB-06-SD-047
Antenna Structure Registrant ) NAL/Acct. No.: 200632940006
ASR No. 1015656 ) FRN: 0001529627
Imperial, California )
)
FORFEITURE ORDER
Adopted: March 28, 2007 Released: March 30, 2007
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand dollars ($10,000) to Entravision
Communications Corporation ("Entravision"), registrant of antenna
structure #1015656 near Imperial, California, for repeated violation
of Section 303(q) of the Commissions Act of 1934, as amended ("Act"),
and Section 17.23 of the Commission's Rules ("Rules"). On June 22,
2006, the Enforcement Bureau's San Diego Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $10,000 to
Entravision for failing to comply with painting and lighting
requirements specified for antenna structure #1015656, and for failing
to ensure that the structure was repainted as often as necessary to
maintain good visibility. In this Order, we consider Entravision's
arguments that the antenna structure was not required to be painted,
and that the lighting extinguishment on the antenna structure was not
for the duration stated in the NAL.
II. BACKGROUND
2. Antenna structure #1015656 is an antenna tower of 114 meters (374
feet) in height above ground. Also, antennas for two FM Broadcast
stations, KMXX(FM), licensed to Imperial, California, and KSEH(FM),
licensed to Brawley, California, are located on the tower. According
to antenna structure #1015656's registration, the structure is
required to have "Obstruction Marking and Lighting" in accordance with
the applicable chapters of Federal Aviation Administration ("FAA")
Advisory Circular Number 70/7460-1H. Specifically, the structure is
required to be painted and have obstruction lighting consisting of at
least one flashing red beacon on top and two or more steady-burning
red sidelights on opposite sides at the midpoint.
3. On March 17, 2006, an agent from the Enforcement Bureau's San Diego
Office observed that antenna structure #1015656 was not painted, but
had installed a daytime white strobe light system. During the day of
March 17, 2006, the San Diego agent observed that the top white strobe
light was not functioning. During the evening of March 17, 2006, the
nighttime red obstruction lights for the antenna structure were also
observed by the agent and found to be functioning properly.
4. The agent advised the staff of the San Diego Office, which in turn
contacted the FAA's Riverside Flight Service Station ("FSS"). The FSS
issued a 15 day Notice to Airmen ("NOTAM") and informed the San Diego
Office that no prior light outage report had been made for antenna
structure #1015656.
5. On March 20, 2006, the agent returned to the Imperial, California,
area and again inspected antenna structure #1015656. The agent
observed that the structure was not painted and that the top white
strobe light was not operational. The agent went to the studio
location for KMXX(FM) and KSEH(FM) in El Centro, California, and
discussed the tower lighting problem with the engineering staff of
Entravision. The agent examined the records for antenna structure
#1015656. A review of these records indicated that the top white
strobe on antenna structure #1015656 may have been experiencing
malfunctions since August, 2005.
6. On June 22, 2006, the San Diego Office issued a NAL in the amount of
$10,000 to Entravision, finding that Entravision apparently repeatedly
failed to comply with painting and lighting requirements specified for
antenna structure #1015656, and failed to ensure that the structure
was repainted as often as necessary to maintain good visibility.
Entravision filed a response ("Response") on July 4, 2006, arguing
that the antenna structure is not required to be painted, and that
that the top white strobe light on the structure had not been
experiencing malfunctions since August 2005.
III. DISCUSSION
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
Entravision'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.
8. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Section 17.23 of the rules requires that registered
antenna structures conform to the mandatory FAA painting and lighting
recommendations set forth on the FAA Notice issued to the structure
owner. The antenna structure registrant must submit the FAA Notice for
the structure to the Commission, as part of the antenna structure
registration process, and the required FCC Form 854, and the
Commission will prescribe antenna structure painting and/or lighting
for the antenna structure. The FAA requires that its review and
concurrence is required for alternatives to the marking requirements,
and that Commission approval be obtained for antenna structures under
Commission jurisdiction. The FAA Notice that was sent to the
Commission by Entravision for antenna structure #1015656 requires that
the structure be painted and have obstruction lighting consisting of
at least one flashing red beacon on top and two steady-burning side
lights at the midpoint. Section 17.50 of the Commission's Rules states
that antenna structures requiring painting shall be cleaned or
repainted as often as necessary to maintain good visibility. On March
17, 2006, and March 20, 2006, a San Diego agent observed that antenna
structure #1015656 was not painted and that the antenna structure's
top strobe white light was not functioning.
9. Entravision argues that painting is not required on antenna structure
#1015656 and includes in its Response a 2002 aeronautical study by the
FAA requiring "dual red and medium intensity" lighting on the
structure. Entravision states that it confirmed the absence of a
painting requirement with an FAA employee on June 30, 2006, when that
FAA employee indicated that the 2002 aeronautical study does not
require painting for antenna structure #1015656. While we acknowledge
that Entravision produced the referenced study in support of its
Response, we still find that Entravision violated Section 17.23 of the
Rules in March of 2006. As the San Diego Office stated in the NAL,
alternatives to the painting requirement are anticipated by the
Commission, "in the form of high or medium intensity white lighting
systems, provided the proposed alternative has received FAA review and
concurrence. Once the FAA has approved of the proposed change, the
antenna structure registrant must seek approval from the Commission
before implementing the change." As of the date of this Order, the
antenna structure registration for antenna structure #1015656
continues to state that the structure must comply with Chapters 3, 4,
5 and 13 of FAA Advisory Circular Number 70/7460-1H, meaning that the
structure is required to be painted and have obstruction lighting
consisting of at least one flashing red beacon on top and two or more
steady-burning red sidelights on opposite sides at the midpoint. Were
Entravision's failure to update its antenna structure registration
with the 2002 FAA study its only failing, we would reduce the proposed
forfeiture amount.
10. However, as the San Diego Office also noted in the NAL, even if
Entravision had filed the revised FAA study with the Commission and
amended its antenna structure registration, and received approval from
the Commission to maintain white lighting, instead of painting, on
antenna structure #1015656, "Entravision would still be in violation
of Section 17.23, for failing to conform to the mandatory FAA painting
and lighting recommendations set forth on its FAA Notice, and Section
17.51, . . . , for failing to continuously exhibit obstruction
lighting, because the daytime white lighting system it installed at
the top of the antenna structure was not functioning on either of the
days the structure was observed by the San Diego agent." On the days
observed by the San Diego agent, Entravision failed to ensure the
daytime visibility of antenna structure #1015656 by either painting
the structure, as required by its initial FAA aeronautical study, or
by ensuring that the white top strobe light was functioning, as
required by its current FAA aeronautical study. We therefore find no
merit to Entravision's argument and caution Entravision to update the
antenna structure registration for antenna structure #1015656 with the
most recent aeronautical study.
11. Entravision acknowledges the light outages and its lack of awareness
of the existence of the outages until the outages were brought to its
attention by the San Diego agent. Nevertheless, Entravision also
argues that, contrary to the statements in the NAL, the daytime white
strobe lights on antenna structure #1015656 were not functioning only
for a short time, not since August 2005. Entravision states that while
its remote control system for the antenna structure was reporting the
outage daily, the daily visual observations made of the structure
showed otherwise. Entravision acknowledges that the individuals who
made the visual observations were not available to do the daily
observations when the white strobe light malfunctioned in March 2006.
Consequently, Entravision does not dispute the March 17, and March 20,
2006, observations of the malfunctioning top white strobe light made
by the San Diego agent, but states that it immediately arranged to
have the white strobe light repaired and to repair the remote control
system.
12. Section 17.49 of the Rules requires antenna structure registrants to
"maintain a record of any observed or otherwise known extinguishment
or improper functioning of a structure light . . ." The San Diego
agent was correct in reviewing these records to determine the extent
of the lighting outage. If errors existed in these records, as
Entravision now contends, the errors were caused by Entravision. In
any event, Entravision does not dispute that the daytime white strobe
was not functioning on March 17 and March 20, 2006, as observed by the
San Diego agent. Therefore, we find no merit to this argument.
Additionally, the Commission has stated in the past that a registrant
is expected to correct errors when they are brought to the entity's
attention and that such correction is not grounds for a downward
adjustment in a forfeiture.
13. Finally, we note that Entravision does not dispute the fact that it
failed to notify the FAA's Riverside FSS of the light outage on
antenna structure #1015656, as required by Section 17.48 of the Rules.
This failure on Entravision's part required the San Diego Office to
request the Riverside FSS to issue a 15 day NOTAM. Additionally,
Entravision does not dispute and, in fact acknowledges in its
Response, that for at least the middle part of March 2006, no daily
observations were made by Entravision staff, as required by Section
17.47(a) of the Rules.
14. Based on the information before us, having examined it according to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement, we find that neither reduction nor cancellation of
the proposed $10,000 forfeiture is warranted.
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Entravision
Communications Corporation IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $10,000 for repeatedly violating Section 303(q) of the Act
and Section 17.23 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. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced above. Payment by check or money order may be
mailed to 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, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Entravision
Communications Corporation at its address of record and its counsel of
record, Barry A. Friedman, Esquire, Thompson Hine, at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 C.F.R. S 17.23.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632940006
(Enf. Bur., Western Region, San Diego Office, released June 22, 2006).
Entravision Holding, LCC, a sister company to the antenna structure owner,
is the licensee of KMXX(FM) and KSEH(FM).
As stated on the antenna structure registration for antenna structure
#1015656, these requirements are based on FAA aeronautical study
95-AWP-2089-OE.
See FAA Advisory Circular Number 70/7460-1H, Chapters 3, 4, 5 and 13.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(E).
47 U.S.C. S 303(q).
47 C.F.R. S 17.23.
47 C.F.R. S 1.61(a)(5).
See FAA Advisory Circular Number 70/7460-1H, Chapter 3, Paragraph 37; FAA
Advisory Circular Number 70/7460-1K, Chapter 3, Paragraph 36.
FAA Advisory Circular Number 70/7460-1H, Chapters 3, 4, 5, 13.
47 C.F.R. S 17.50.
FAA aeronautical study 2002-AWP-791-OE.
FAA Advisory Circular Number 70/7460-1H, Chapter 3, Paragraph 37.
FAA Advisory Circular Number 70/7460-1H, Chapter 3, Paragraph 37; NAL at
para. 8.
See FAA Advisory Circular Number 70/7460-1H, Chapters 3, 4, 5 and 13.
47 C.F.R. S 17.51.
NAL at para. 8, n.14.
47 C.F.R. S 17.49.
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76 (2002).
47 C.F.R. S 17.48.
47 C.F.R. S 17.47(a).
47 U.S.C. SS 303(q), 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 17.23.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-1478
1
5
Federal Communications Commission DA 07-1478