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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
CB Radio, Inc.
) File Number EB-02-AT-398
Owner of Unregistered Antenna
Structure located at 36DEG 20' 07" ) NAL/Acct. No.200332480016
North Latitude by 82DEG 13' 03" West
Longitude in Elizabethton, Tennessee ) FRN 0007-8859-81
Elizabethton, Tennessee )
)
)
MEMORANDUM OPINION AND ORDER
Adopted: May 2, 2007 Released: May 4, 2007
By the Commission:
I. introduction
1. In this Memorandum Opinion and Order ("Order"), we deny the Application
for Review filed by CB Radio, Inc. ("CB"), licensee of AM radio station
WBEJ in Elizabethton, Tennessee, of the Enforcement Bureau's ("Bureau")
Memorandum Opinion and Order released on October 25, 2005. In that
Memorandum Opinion and Order, the Bureau denied CB's petition for
reconsideration of 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") for failing to
register its antenna structure.
II. BACKGROUND
2. CB Radio, Inc. is the licensee of AM radio station WBEJ, which is
licensed to Elizabethton, Tennessee, and is the owner of that station's
antenna structure ("the tower"). 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. 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. CB's response indicated that it planned to
register its tower.
3. 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 released a Notice
of Apparent Liability for Forfeiture ("NAL") in the amount of three
thousand dollars ($3,000), 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 that it did not register the tower until February
14, 2003, described its attempts to register the tower, and sought
cancellation of the proposed monetary forfeiture. On August 6, 2004, the
Bureau issued a Forfeiture Order finding CB liable for a $2,400 forfeiture
for willful and repeated violation of Section 17.4(a) of the Rules. The
Bureau found that CB's filing of Federal Aviation Administration ("FAA")
Form 7460-1 in October 2001, prior to the October 29, 2002 inspection but
subsequent to the September 25, 2001 inspection, warranted a "good faith"
reduction of the forfeiture amount from $3,000 to $2,400, but did not
warrant cancellation of the forfeiture because CB's failure to check the
status of its filing with the FAA until after the October 29, 2002
inspection constituted a lack of diligence. On September 7, 2004, CB filed
a petition for reconsideration arguing that the Forfeiture Order should be
vacated, the forfeiture amount cancelled, and the reconsideration granted
because the Bureau's actions were "arbitrary and capricious." On October
25, 2005, the Bureau issued a Memorandum Opinion and Order rejecting CB's
arguments and denying its petition for reconsideration. In its application
for review, filed November 23, 2005, CB reiterates arguments previously
made in its petition for reconsideration and in its response to the NAL.
III. DISCUSSION
Violation of Section 17.4(a) of the Rules
4. Background. To help insure air safety, the Commission has rules
regarding the registration, construction, marking and lighting of antenna
structures. Section 17.4(a) of the Rules required the owners of existing
antenna structures that were assigned painting or lighting requirements
before July 1, 1996 to register those antenna structures with the
Commission prior to July 1, 1998. Consistent with the public safety
objective of ensuring that towers do not pose a hazard to air navigation,
the staff adopted on January 13, 1999 a no-tolerance policy with respect
to towers not registered by the prescribed deadline, and the Commission
has imposed forfeitures for violations of this rule and other tower
requirements. Violations of the registration requirement are significant
because the registration process provides a means by which the Commission
can assure, prior to construction, that towers do not pose a risk to air
safety and a means by which the Commission can assure air safety after
construction by enabling the Commission to contact tower owners concerning
tower marking and lighting violations.
5. Discussion. CB does not dispute that the tower should have been
registered by July 1, 1998, but remained unregistered until February 14,
2003. However, CB argues that the Bureau's Memorandum Opinion and Order
was "arbitrary and capricious" and must, therefore, be vacated. In
particular, CB claims that the Bureau's Memorandum Opinion and Order was
"arbitrary and capricious" because it disregarded CB's efforts to register
its tower prior to the September 25, 2001 inspection, and because it found
CB had willfully and repeatedly violated Section 17.4 of the Rules despite
CB's efforts to register the tower.
6. First, we need not decide whether the Bureau's failure to address CB's
efforts to register its tower prior to the September 25, 2001 inspection
in its Memorandum Opinion and Order was "arbitrary and capricious." CB
Radio's unsuccessful efforts to register the tower before that date could
not, under the circumstances, warrant cancellation or mitigation of the
forfeiture. In Sutro Broadcasting Corporation,19 FCC Rcd at 15277, P 10,
where a forfeiture was assessed for repeated violation of Section 17.4(a),
the Commission acknowledged that it will generally reduce the assessed
forfeiture amount "based on the good faith corrective efforts of a
violator when those actions were taken prior to Commission notification of
the violation." In the circumstances presented in that case, the
Commission reduced the forfeiture amount based on the licensee's overall
history of compliance. But it rejected the licensee's request for further
reduction of the forfeiture amount based on the tower owner's periodic
unsuccessful attempts to register its tower where those efforts were
characterized by lengthy delays in filings. Based on the lack of diligence
evinced by such delays the Commission concluded that those registration
attempts "d[id] not rise to the level of good faith efforts to comply that
would entitle [the licensee] to further mitigation of the assessed
forfeiture amount."
7. As in Sutro, CB's unsuccessful efforts to register its tower before the
September 25, 2001, inspection -- and even its efforts thereafter -- do
not rise to the level of good faith, diligent efforts and, therefore, do
not have any mitigating effect. CB had the responsibility to register its
tower by July 1, 1998. CB, however, does not claim to have filed an ASR
application by the deadline, to have checked on the status of its October
8, 1998 application until July 12, 1999, or to have filed a further ASR
application with the Commission or clearance application with the FAA
until after the initial September 25, 2001 inspection. Moreover, CB admits
that it did not check on the status of its October 2001 submission to the
FAA until after the October 29, 2002 inspection. Indeed, it was CB's lack
of diligence which resulted in its tower's remaining unregistered until
February 14, 2003, more than four and one-half years after the
registration deadline. CB's efforts to register the tower, in other words,
evince a lack of diligence comparable to that present in Sutro.
8. The Bureau's finding that CB had willfully and repeatedly violated
Section 17.4 of the Rules despite CB's efforts to register the tower was
not arbitrary and capricious. Licensees have the responsibility to be
aware of, and comply with, all applicable provisions of the Communications
Act and the Commission's rules. That responsibility is not discharged by a
licensee's having attempted, but failed, to comply. Additionally, the
Commission's holding in Sutro that unsuccessful tower registration efforts
accompanied by a lack of diligence do not mitigate a violation of Section
17.4(a) establishes that such efforts also do not discharge a licensee's
responsibility to comply with that rule. We agree with the Bureau that
CB's continuing failure to register the tower and continued use of the
tower that it knew was not registered made its violation of Section
17.4(a) "willful and repeated."
9. Furthermore, we conclude that CB's efforts to register the tower
following the September 25, 2001 inspection did not warrant a reduction in
the forfeiture. It is well established that post-investigational efforts
to correct a violation do not mitigate the forfeiture or warrant a
reduction in the assessed forfeiture amount. Notwithstanding this error,
we conclude in the exercise of our discretion to determine forfeiture
amounts in individual cases that the forfeiture amount will remain at
$2,400. To avoid the appearance of penalizing CB for having sought
Commission review of the forfeiture, and in light of the small amount of
the unwarranted reduction of the forfeiture, we will not return the
forfeiture to its original amount based on errors discovered during our
consideration of its application for review.
10. Finally, CB again claims that the following cases support cancellation
of the forfeiture: Jamie Patrick Broadcasting, Ltd. ("Jamie Patrick"), 17
FCC Rcd 26277 (Enf. Bur. 2002); Truth Broadcasting Corporation ("Truth"),
17 FCC Rcd 24376 (Enf. Bur. 2002); and C.W.H. Broadcasting, Inc
("C.W.H."), 17 FCC Rcd 14324 (Enf. Bur. 2002). We agree with the Bureau's
determination that those cases are factually dissimilar to this case and
contain nothing which supports canceling the forfeiture. In Jamie Patrick,
the proposed forfeiture was based on violations of rules other than
Section 17.4(a), and its cancellation was based on a finding that the
licensee did not violate Section 73.3526(a)(2) of the Rules (requiring
maintenance of a public inspection file) and on the licensee's inability
to pay the forfeiture amount. In Truth, the licensee did not claim to have
made any unsuccessful attempts to register its tower and, in fact,
contended that its tower was not required to be registered. After
considering Truth Broadcasting's response to the NAL, the Bureau
cancelled the $2,400 proposed forfeiture for violation of Section 17.4(a).
CB, in contrast to Truth Broadcasting, acknowledges the registration
requirement for the WBEY tower. In C.W.H., after reviewing the particular
circumstances in that case and in accord with the discretion provided by
Section 503(b), the Bureau further reduced, but did not cancel, the
proposed forfeiture for, inter alia, a willful Section 17.4(a) violation.
In that case, however, the Bureau had initially reduced the forfeiture due
to financial hardship and was persuaded by the licensee's elaboration of
previously provided information that further relief was warranted. There
has been no comparable showing here.
11. We have examined CB's Application for Review pursuant to the statutory
factors prescribed by Section 503(b)(2)(E) of the Communications Act of
1934 as amended ("Act"), 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"), and Section 1.80 of the
Rules. We reverse the Bureau's decision to the extent that it improperly
relied on post-investigational efforts to correct a violation as a basis
to mitigate the forfeiture amount, but otherwise affirm the Bureau's
Memorandum Opinion and Order finding CB Radio, Inc. liable for a
forfeiture in the amount of $2,400.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the
Rules, CB Radio, Inc.'s Application for Review of the October 24, 2005,
Memorandum Opinion and Order IS DENIED and the Memorandum Opinion and
Order IS AFFIRMED.
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, money
order 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
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.
14. 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 . E. Elk Avenue, Elizabethton, TN 37643, and Dennis Kelly, Esq.,
P.O. Box 41177, Washington DC 20018-0577.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
CB Radio, Inc., 20 FCC Rcd 16570 (Enf. Bur. 2005) ("Bureau Memorandum
Opinion and Order").
47 C.F.R. S 17.4(a). This section 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.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200332480016
(Enf. Bur., Atlanta Office, released January 23, 2003).
The Commission's records confirm that CB registered WBEJ's antenna
structure on February 14, 2003.
CB's response to NAL.
CB Radio, Inc., 19 FCC Rcd 14869 (Enf. Bur. 2004) ("Forfeiture Order").
FAA Form 7460-1 is used to request a Determination of No Hazard to Air
Navigation, which must be obtained before an antenna structure
registration application can be filed.
See, e.g., SpectraSite Communications, Inc., 18 FCC Rcd 22799, forfeiture
ordered, 19 FCC Rcd 17673 (2004).
CB's tower for WBEJ was assigned painting and lighting requirements before
July 1, 1996, by FAA study SW-OE-1884.
See Public Notice, No-Tolerance Policy Adopted for Unregistered Antenna
Structures, 1999 WL 10060 (WTB 1999), in which the Wireless
Telecommunications Bureau warned that all existing, unregistered
structures subject to registration under Part 17 of the Commission's Rules
must be registered immediately or their owners may face forfeitures or
other enforcement actions.
See Sutro Broadcasting Corporation, 19 FCC Rcd 15274 (2004); SpectraSite
Communications, Inc., 19 FCC Rcd 17673 (2004); American Tower Corp., 16
FCC Rcd. 1282 (2001).
See, e.g., Maria L. Salazar, 18 FCC Rcd 7960 (2003), petition for
reconsideration granted in part and denied in part, 19 FCC Rcd 5050 (2004)
(forfeiture reduced because of economic hardship), (second) petition for
reconsideration granted in part, 20 FCC Rcd 20598 (2005) (forfeiture
further reduced because of economic hardship) and SpectraSite
Communications, Inc., 19 FCC Rcd 17673 (2004).
Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process, 20 FCC Rcd 1073, 1084 (2004),
aff'd sub nom. CTIA v. FCC, No. 05-1008 (D.C. Cir. Sept. 26, 2006).
Application for Review, at page 4.
Application for Review, at page 4-5. According to CB, it made the
following unsuccessful efforts to register its tower: filed an antenna
structure registration ("ASR'') application (FCC Form 854) on September
23, 1998; filed a second ASR application following dismissal of the first
application (on October 8, 1998, according to Commission records);
submitted a July 12, 1999, letter to the Commission inquiring about its
second ASR application to which there was no response; made a subsequent
telephone inquiry to the Commission during which CB was referred to
persons allegedly unable to answer its inquiry about the status of the
second application; and filed an application for a clearance (FAA Form
7460-1) with the FAA in October 2001 (CB's antenna structure required
notification to the FAA because the structure exceeded 200 feet in height.
47C.F.R. S 17.7(a). FAA's approved Form 7460-1 must accompany an FCC
registration application for an antenna structure.).
Sutro Broadcasting Corporation, 19 FCC Rcd at 15276 P 7; Sutro
Broadcasting Corporation (Forfeiture Order), 18 FCC Rcd 20529, 20532 P 12
(Enf. Bur. 2003).
SutroBroadcasting Corporation, 19 FCC Rcd at 15277.
As to CB.s claimed inquiries regarding its October 8, 1998 application,
the Commission has no record of receiving either CB.s letter of July 12,
1999 or subsequent phone call regarding the status of that application.
Our records reflect further that that application was subsequently
dismissed.
CB filed a second FAA application when it discovered that the FAA had no
record of its October 2001 submission. After receiving FAA clearance on
January 13, 2003, CB filed its third ASR application with the Commission
on February 6, 2003.
We note concerning CB's efforts to register its tower that, according to
Commission records, CB's second application, which was filed on October 8,
1998, was subsequently dismissed (our records do not indicate the date of
dismissal). With respect to CB's letter of July 12, 1999, and the
subsequent telephone inquiry, the Commission has no record of receipt of
the letter nor the telephone inquiry. CB admits that it did not check with
the FAA on the status of this application until after the October 29,
2002, inspection when it found that the FAA had no record of the
application. A second filing with the FAA resulted in the grant of an FAA
clearance on January 13, 2003. CB then filed a new ASR application with
the Commission on February 6, 2003. That application was granted by the
Commission on February 14, 2003.
Memorandum Opinion and Order, 20 FCC Rcd at 16572 P 6 & n.12, citing The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules (Report and Order), 12 FCC Rcd 17087, 17099 (1997); Sitka
Broadcasting Co., Inc., 70 FCC 2d 2375, 2378 (1979).
Sutro Corporation, 19 FCC Rcd at 15277.
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 of the
Act, provides that "[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious or deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act . . . ." See Southern California Broadcasting
Co., 6 FCC Rcd 4387-88 (1991). A violation resulting from an inadvertent
mistake or a failure to become familiar with the FCC's requirements is
considered a willful violation. 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), provides that 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. 97^th Cong. 2d Sess. 51 (1982). See Southern
California Broadcasting Co., 6 FCC Rcd at 4388.
See Bureau Memorandum Opinion & Order at P 8.
SpectraSite Communications, Inc., 19 FCC Rcd 17673, 17676 (2004)
(forfeiture reduced for good faith compliance where the licensee had
recognized the Section 17.51(b) violation and had scheduled work to
correct the violation prior to the agent's inspection); Sutro Broadcasting
Corporation, 19 FCC Rcd at 15277 (recognizing that forfeitures are reduced
based on the good faith corrective actions of a violator when such actions
are taken prior to Commission notification of the violation); TCI
Cablevision of Maryland, Inc., 7 FCC Rcd 6013, 6014 P 8 (1992) (noting
that it would be inappropriate to base mitigation or cancellation of a
forfeiture upon corrective action taken after citation because this would
encourage remedial rather than preventive action); Sitka Broadcasting
Company, 70 FCC 2d 2375, 2378 (1979) (noting that the forfeiture
provisions of Section 503 are intended to encourage broadcast licensees to
take appropriate actions to prevent violations).
47 C.F.R. S 503(b)(2)(E) (directing the Commission to take into account
the nature, circumstances, extent, and gravity of the violation and, with
respect to the violator, the degree of culpability, and such other matters
as justice may require). Cf. WFXV-TV, Inc. v. United Cablevision, 18 FCC
Rcd 22,782 n.8 (2003) (recognizing that even where the Commission
determines that a violation has occurred it has the discretion not to
impose a forfeiture).
Forfeiture Order, 17 FCC Rcd at 14871.
Jamie Patrick Broadcasting, Ltd., 17 FCC Rcd, at 26278.
Truth Broadcasting Corporation's July 12, 2004, Response to Notice of
Apparent Liability.
Truth Broadcasting, 17 FCC Rcd at 24378.
C.W.H. Broadcasting, Inc., 17 FCC Rcd at 14324.
C.W.H. Broadcasting, Inc. (Forfeiture Order), 17 FCC Rcd 4548 (Enf. Bur.
2002) ($20,000 proposed forfeiture for violations of Sections 17.4(a)(2),
17.51(a) and 73.49 reduced to $3,500 based on inability to pay), petition
for reconsideration granted in part, 17 FCC Rcd 14324 (Enf. Bur. 2002)
(forfeiture reduced to $500.
47 U.S.C. S 503(b)(2)(E).
12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303 (1999).
47 C.F.R. S 1.80.
47 C.F.R. S 1.115(g).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission FCC 07-75
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Federal Communications Commission FCC 07-75