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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Siga Broadcasting Corporation )
File Number EB-06-HU-091
Licensee of Station KTMR )
NAL/Acct. No. 200732540002
Edna, Texas )
FRN 0003790425
Facility ID # 28191 )
Owner of Antenna Structure #1232021 )
)
FORFEITURE ORDER
Adopted: April 20, 2007 Released: April 24, 2007
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of twenty-one thousand dollars ($21,000) to Siga
Broadcasting Corporation ("Siga Broadcasting"), licensee of station
KTMR, in Edna, Texas and owner of antenna structure #1232021, for
willful and repeated violation of Sections 17.51(a) and 73.1745(a) of
the Commission's Rules ("Rules") and for repeated violation of Section
73.49 of the Rules. The noted violations involve Siga Broadcasting's
failure to exhibit red obstruction lights from sunset to sunrise,
operation of the station after local sunset, and failure to enclose an
antenna tower with radio frequency potential at the base within an
effective locked fence.
II. BACKGROUND
2. On December 11, 2006, in response to a complaint that the station was
remaining on the air after sunset, an agent with the Commission's
Houston Office of the Enforcement Bureau ("Houston Office") inspected
the transmitter site for station KTMR in Edna, Texas. At the
transmitter site, the agent observed a three-tower directional array,
which was of the type that normally has radio frequency potential at
the bases. Each of the three antenna structures was enclosed within a
fence. Although the gate had a padlock, the agent observed that the
gate latching mechanism for one of the fences had separated from the
gate and would not hold the gate closed. The property for the
transmitter site did not have a perimeter fence. After sunset on
December 11, 2006, the agent observed that the red obstruction light
on the top of antenna structure #1232021 was not operating. All three
of station KTMR's structures are greater than 200 feet in height, are
registered with the Commission, and require red obstruction lighting.
The agent telephoned the Federal Aviation Administration ("FAA") and
was told that no Notice to Airmen ("NOTAM") had been issued for
structure #1232021. The agent also monitored the station's
transmissions and observed that it was transmitting, with full daytime
power, when he left the area at 6:15 PM local time. Station KTMR is
only authorized as a daytime station, and for the month of December,
must cease operations at 5:30 PM local time.
3. On December 15, 2006, the agent with the Houston Office returned to
the station KTMR's transmitter site and found the situation unchanged.
The gate on one antenna structure's fence was not secured and could
easily be opened to allow access to the base of the structure. After
dark, a red obstruction light at the top of antenna structure #1232021
was not operating. The agent contacted the FAA, and the FAA still had
no record of a NOTAM issued for this structure. The agent monitored
the station's transmissions and heard the station go off the air at
about 7:00 PM local time. At the time the station went off the air, it
was operating at full daytime power.
4. On December 19, 2006, the agent from the Houston Office once again
returned to the transmitter site of station KTMR. The agent observed
that the gate on the structure fence was in the same condition as on
December 11 and 15. The agent then confirmed using a relative radio
frequency meter that all three antenna structures had radio frequency
potential at their bases. The agent then inspected the main studio for
station KTMR in Victoria, Texas. Personnel present admitted that the
station normally operated from about 6:30 AM to 7:00 PM daily. He
further admitted that no one from the station observed the tower
lights at least once every 24 hours and that the station had not
installed an automatic light monitoring system. Finally, he stated was
not aware that any lights on any of the towers were malfunctioning.
5. On March 21, 2007, the Houston Office issued a Notice of Apparent
Liability for Forfeiture to Siga Broadcasting in the amount of
twenty-one thousand dollars ($21,000), for the apparent willful and
repeated violation of Sections 17.51(a) and 73.1745(a) of the Rules
and for the apparent repeated violation of Section 73.49 of the Rules.
Siga Broadcasting submitted a response to the NALs requesting a
reduction or cancellation of the proposed forfeiture.
III. DISCUSSION
6. The proposed forfeiture amounts in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934, as
amended, 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, 12 FCC Rcd 17087 (1997), recon.
denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement"). In
examining Siga Broadcasting'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.
7. Section 17.51(a) of the Rules requires that red obstruction lighting
shall be exhibited from sunset to sunrise unless otherwise specified.
Section 17.47(a)(1) of the Rules requires the owner of any antenna
structure which is registered with the Commission and has been
assigned lighting specifications to make an observation of the antenna
structure's lights at least once every 24 hours either visually or by
observing an automatic properly maintained indicator designed to
register any failure of such lights. Alternatively, Section
17.47(a)(2) of the Rules requires antenna structure owners to provide
and properly maintain an automatic alarm system designed to detect any
failure of such lights and to provide indication of such failure to
the owner. Siga Broadcasting is the registered owner of antenna
structure #1232021 and the licensee of station KTMR. On December 11
and 15, 2006, a red obstruction light on antenna structure #1232021
was extinguished after sunset, and no NOTAM had been issued. Personnel
present at the main studio admitted that no one from the station
observed the antenna structure on a daily basis and that the station
had not installed an automatic alarm system.
8. Section 73.49 of the Rules requires that antenna towers having radio
frequency potential at the base must be enclosed within effective
locked fences or other enclosures. However, individual tower fences
need not be installed if the towers are contained within a protective
property fence. On December 11, 15, and 19, 2006, the gate of the
fence surrounding one of station KTMR's antenna structures was not
secured and could be easily opened, providing ready access to the base
of the structure. This antenna structure was confirmed to have radio
frequency at the base. There was no perimeter fence around the
property. Therefore, the antenna structure was not enclosed within an
effective locked fence or protective property fence.
9. Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times, or with modes or power, other than those specified
and made a part of the license, unless otherwise provided in this
part. Station KTMR is only authorized to operate from 7:15 AM until
5:30 PM in December. On December 11 and 15, 2006, station KTMR
operated after 5:30 PM. Personnel present at the station confirmed
that the station operated on a daily basis until 7:00 PM.
10. In its response to the NAL, Siga Broadcasting requests reduction or
cancellation of the forfeiture, because it claims its violations were
neither repeated nor willful. Siga Broadcasting states that,
unbeknownst to the personnel present during the inspection, it
contracted with two people and hired an employee to inspect the
station on a daily basis and that these people failed to fulfill their
duties. Accordingly, it asserts it was unaware of the violations prior
to the inspection, and, therefore, disputes that its violations were
willful. Regarding its violation of Section 73.1745(a) of the Rules,
Siga Broadcasting adds that when it cancelled a time brokerage
agreement with an entity at the beginning of December 2006, that
entity cut the telephone lines to the transmitter, unbeknownst to it,
which precluded the transmitter from automatically turning off. Siga
Broadcasting also claims that its violations were not repeated,
because, even if it were aware of the violations, it would have been
unable to correct the fencing and tower light violations between
December 11 and December 19, 2006 due to weather and ground
conditions. Finally, Siga Broadcasting asserts that, upon being
informed of all three of the violations, it took immediate corrective
action.
11. We find no basis upon which to reduce or cancel the forfeitures. Siga
Broadcasting does not deny that between December 11 and 19, 2006: (1)
its antenna structure lights were extinguished and it had not called
in a NOTAM; (2) its antenna structure was not enclosed within an
effective locked fence; and (3) its station operated after authorized
hours. Accordingly, its violations were repeated, as they occurred on
more than one day. It is irrelevant if Siga Broadcasting could have
corrected the violations between December 11 and 19, 2006. Moreover,
we do not find persuasive its arguments that its violations were not
willful. Siga Broadcasting's violation of Section 17.51(a) of the
Rules was willful, because it failed to install an automatic alarm
system or observe visually the antenna structure lights on a daily
basis, and lights were extinguished. Its violation of Section
73.1745(a) of the Rules was willful, because entities, authorized by
it pursuant to a time brokerage agreement, consciously operated the
station after authorized hours. Even assuming Siga Broadcasting hired
contractors and employees to inspect the station, station phone lines,
and tower lights on a daily basis and those people failed to perform
their duties, its violations were willful, because the "Commission has
long held that licensees and other Commission regulatees are
responsible for the acts and omissions of their employees and
independent contractors," and has "consistently refused to excuse
licensees from forfeiture penalties where actions of employees or
independent contractors have resulted in violations." Finally, Siga
Broadcasting's corrective action taken to come into compliance with
the Rules is expected, and does not nullify or mitigate any prior
forfeitures or violations.
12. Based on the evidence before us, we find that Siga Broadcasting
willfully and repeatedly violated Sections 17.51(a) and 73.1745(a) of
the Rules by failing to exhibit red obstruction lighting and operating
after local sunset. We also find that Siga Broadcasting repeatedly
violated Section 73.49 of the Rules by failing to enclose an antenna
tower with radio frequency potential at the base within an effective
locked fence.
13. We have examined Siga Broadcasting's response to the NAL pursuant to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement. As a result of our review, we conclude that no
reduction of the proposed $21,000 forfeiture is warranted.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Siga Broadcasting Corporation IS
LIABLE FOR A MONETARY FORFEITURE in the amount of twenty-one thousand
dollars ($21,000) for violations of Sections 17.51(a), 73.49, and
73.1745(a) of the Rules.
15. 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,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Siga Broadcasting
Corporation at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. SS 17.51(a), 73.1745(a).
47 C.F.R. S 73.49.
The FAA would not initially issue a NOTAM, even though the agent notified
it of the lighting outage, because the agent was not the owner of the
tower.
The FAA issued a NOTAM in response to the agent's call on December 18,
2006.
The staff present had entered into a time brokerage agreement with Siga
Broadcasting to operate the station full-time. No employees of Siga
Broadcasting were present at the main studio.
Station KTMR is only authorized to operate up to 7 PM in April, May, June,
July and August.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732540002
(Enf. Bur., Houston Office, March 21, 2007) ("NAL").
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(E).
47 C.F.R. S 17.51(a).
47 C.F.R. S 17.47(a)(1).
47 C.F.R. S 73.49.
47 C.F.R. S 73.1745(a).
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863,-64, para. 7 (2002); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34 (1991)(holding that a company's reliance on an independent
contractor to construct a tower in compliance of FCC rules does not excuse
that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
for violations of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248 (Enf. Bur. 2004)
(holding a licensee liable for its employee's failure to conduct weekly
EAS tests and to maintain the "issues/programs" list).
American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf. Div.,
Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, 96 FCC 2d
1235, 1244 (1984).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
The term "repeated," when used with reference to the commission or
omission of any act, "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. S 312(f)(2).
47 U.S.C. S 503(b); 47 C.F.R. SSS 0.111, 0.311, 1.80(f)(4), 17.51(a),
73.49, 73.1745(a).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-1788
5
Federal Communications Commission DA 07-1788