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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Multicultural Radio Broadcasting,
Inc. ) File Number: EB-06-SF-276
Antenna Structure Registrant ) NAL/Acct. No.: 200732960001
ASR No. 1013937 ) FRN: 0005086368
Cutler, California )
)
FORFEITURE ORDER
Adopted: June 11, 2007 Released: June 13, 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 Multicultural Radio
Broadcasting, Inc. ("Multicultural"), owner of antenna structure
#1013937 near Cutler, California, for repeatedly violating Section
303(q) of the Communications Act of 1934, as amended, ("Act"), and
Section 17.51 of the Commission's Rules ("Rules"). On December 22,
2006, the Enforcement Bureau's San Francisco Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $10,000 to
Multicultural for failing to exhibit the structure's red obstruction
lighting from sunset to sunrise. In this Order, we consider
Multicultural's argument that the forfeiture amount be reduced because
of Multicultural's good faith efforts to comply with the Commission's
Rules.
II. BACKGROUND
2. Antenna structure #1013937 is an antenna tower of 90.6 meters (297
feet) in height above ground. It is tower four in a four-tower array
used by KWRU(AM) to serve Fresno, California. According to the antenna
structure registration ("ASR") for antenna structure #1013937, the
structure is required to have painting and lighting in accordance with
specific paragraphs of the Commission's "Obstruction Marking and
Lighting Specifications for Antenna Structures - FCC Form 715" ("FCC
Form 715"). Specifically, the structure is required to be painted, and
have, at its top, a flashing beacon equipped with two lamps and red
filters, along with at least two lamps enclosed in red obstruction
light globes located on levels at approximately two-thirds and
one-third of the overall height of the tower. The lights on antenna
structure #1013937 are required to burn continuously or be controlled
by a light sensitive device.
3. On October 4, 2006, the Enforcement Bureau's San Francisco Office
received a complaint that antenna structure #1013937, located near
Cutler, California was not lighted. An agent from the San Francisco
Office contacted the Federal Aviation Administration's ("FAA's")
Rancho Murrieta Flight Service Station ("FSS") in Rancho Cordova,
California. The FSS issued a 15 day Notice to Airmen ("NOTAM") and
informed the San Francisco agent that no prior light outage report had
been made for antenna structure #1013937. The San Francisco agent then
contacted the Tulare County, California, Sheriff's Department and
requested that a deputy drive by antenna structure #1013937 that
evening to determine if the antenna array lights were extinguished.
The Sheriff's Department dispatcher contacted the San Francisco agent
at approximately 7:30 p.m. PDT on October 4, 2006, and reported that
the lights on antenna structure #1013937 were extinguished.
4. On October 5, 2006, the San Francisco agent drove to the Cutler,
California, area and inspected antenna structure #1013937. During the
evening of October 5, 2006, the agent observed that the nighttime red
obstruction lights for the antenna structure were not functioning.
5. On October 6, 2006 the agent went to the studio location for KWRU(AM)
in Fresno, California, and discussed the tower lighting problem with
the staff of Multicultural. The agent examined the records and found
no prior log entries concerning any lighting outages on antenna
structure #1013937. The KWRU(AM) engineer indicated to the agent that
the outage may have been caused by a transformer failure.
6. On December 22, 2006, the San Francisco Office issued a NAL in the
amount of $10,000 to Multicultural, finding that Multicultural
apparently repeatedly failed to exhibit antenna structure #1013937's
red obstruction lighting from sunset to sunrise. Multicultural filed a
response ("Response") on January 23, 2007, arguing that the forfeiture
amount should be reduced based on Multicultural's good faith efforts
to comply with the Rules.
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 ("Forfeiture
Policy Statement"). In examining Multicultural'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 17.51 of the Rules states that all red
obstruction lighting shall be exhibited from sunset to sunrise unless
otherwise specified. According to its ASR, antenna structure #1013937
is required to have, at its top, a flashing beacon equipped with two
lamps and red filters, along with at least two lamps enclosed in red
obstruction light globes located on levels at approximately two-thirds
and one-third of the overall height of the tower. On October 4, 2006,
the Tulare County, California, Sheriff's Department observed that the
red obstruction lighting on antenna structure #1013937 was not
functioning. The next evening, on October 5, 2006, a San Francisco
agent also observed that the red obstruction lighting on antenna
structure #1013937 was not functioning.
9. Multicultural does not dispute the facts as described in the NAL, but
does request that we consider a reduction in the proposed forfeiture
amount. Multicultural states that "[a]t the time of the agent's visit,
October 4 - 5, 2006, the present tower light monitoring system was in
the process of being installed but was not yet operational. . . . The
outage in question resulted from an electrical failure at the base of
tower 4 [of the KWRU array]. A transformer that supplies power for
tower lighting had failed and was being replaced . . . which occurred
a few days later." To support its statement, Multicultural includes an
invoice for the replacement work, dated October 31, 2006.
Multicultural also submits an email, dated October 13, 2006, from its
contractor detailing the completed work that was done to replace the
tower light monitoring system. Multicultural also notes that Section
17.56 of the Rules states that replacing or repairing lights shall be
accomplished "as soon as practicable" and that antenna structure
#1013937 is located in a remote area. Multicultural acknowledges,
however, that it failed to notify the FAA of the tower light outage as
required by Section 17.48 of the Rules.
10. Reductions based on good faith efforts to comply generally involve
situations where violators demonstrate that they initiated measures to
correct or remedy violations prior to a Commission inspection or
investigation. While Multicultural has produced evidence that both its
tower light monitoring system and the extinguished light itself have
been repaired, it has produced no evidence that Multicultural
initiated repairs prior to the October 6, 2006, inspection by the San
Francisco agent, who notified the Multicultural staff of the light
outage on antenna structure #1013937. Therefore, we cannot conclude
that Multicultural's efforts to comply occurred prior to a Commission
inspection and, consequently, we decline to reduce the forfeiture
amount on that basis. Additionally, while the language of Section
17.56 of the Rules states that lights must be repaired or replaced "as
soon as practicable," this language does not exempt antenna structure
registrants from monitoring the lights on their antenna structures so
that no public safety hazards are created by extinguished lights nor
does it exempt antenna structure registrants from the obligation to
provide notice to the FAA when required lights are extinguished.
Multicultural acknowledges no notice was given to the FAA FSS by
Multicultural, as required by Section 17.48 of the Rules. Had
Multicultural complied with Section 17.48 of the Rules and timely
notified the FAA FSS of the hazard created by the light outage on
antenna structure #1013937, we would be more inclined to agree that
Section 17.56 of the Rules allowed Multicultural some time to repair
the lights on the structure. Because Multicultural failed to comply
with the important public safety mandate found in Section 17.48 of the
Rules, we find that Section 17.56 of the Rules offers Multicultural no
protection or exemption from a finding that it failed to exhibit
antenna structure #1013937's red obstruction lighting from sunset to
sunrise, in violation of Section 17.51 of the Rules.
11. 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 no reduction of the proposed forfeiture
is warranted.
IV. ORDERING CLAUSES
12. 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, Multicultural Radio
Broadcasting, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount
of $10,000 for repeatedly violating Section 303(q) of the Act and
Section 17.51 of the Rules.
13. 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.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to
Multicultural Radio Broadcasting, Inc., at its address of record, and
Mark Lipp, Esquire, Wiley, Rein and Fielding, its counsel 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 17.51.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732960001
(Enf. Bur., Western Region, San Francisco Office, released December 22,
2006).
Multicultural Radio Broadcasting Licensee LLC, is the licensee of
KWRU(AM).
FCC Form 715, Paragraphs 1, 3, 12, and 21.
FCC Form 715, Paragraph 1.
FCC Form 715, Paragraph 3.
FCC Form 715, Paragraph 12.
FCC Form 715, Paragraph 21.
See 47 C.F.R. S 17.48.
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 17.51.
FCC Form 715, Paragraph 3.
FCC Form 715, Paragraph 12.
47 C.F.R. S 17.56.
See 47 C.F.R. S 17.48.
See Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 (2003), recon.
denied, 18 FCC Rcd 25481 (2003).
See 47 C.F.R. S 17.47.
47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 17.51.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-2442
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Federal Communications Commission DA 07-2442