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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Western Slope Communications, LLC ) File Number: EB-07-DV-196
Antenna Structure Registrant ) NAL/Acct. No.: 200832800001
Rifle, CO ) FRN: 0004259552
ASR # 1023390 )
)
FORFEITURE ORDER
Adopted: May 28, 2008 Released: May 30, 2008
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 thirteen thousand dollars ($13,000) to Western Slope
Communications, LLC, ("Western Slope") owner of antenna structure
number 1023390, near Rifle, Colorado, for repeated violation of
Section 303(q) of the Communications Act of 1934, as amended, ("Act"),
and Sections 17.51(a), 17.47(a), 17.48, and 17.57 of the Commission's
Rules ("Rules"). On December 7, 2007, the Enforcement Bureau's Denver
Office issued a Notice of Apparent Liability for Forfeiture ("NAL") to
Western Slope in the amount of $13,000 after determining that Western
Slope apparently repeatedly failed to comply with the antenna
structure registration ("ASR") lighting, monitoring, record keeping,
and notification requirements specified for antenna structure number
1023390. In this Order, we consider Western Slope's arguments that the
proposed forfeiture would pose an undue hardship, that it made a good
faith effort to meet its regulatory obligations, that it corrected the
violation once notified of it, and that it has a history of compliance
with the Commission's Rules.
II. BACKGROUND
2. Antenna structure number 1023390 is an antenna tower of 84.0 meters
(275.6 feet) in height above ground. According to the antenna
structure registration ("ASR") for antenna structure number 1023390,
the structure is required to be painted and lit in accordance with
specific Chapters of the FAA Advisory Circular for Obstruction Marking
and Lighting. 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 a level at approximately one-half the overall
height of the tower. The lights on antenna structure number 1023390
are required to burn continuously or be controlled by a light
sensitive device.
3. On April 23, 2007, at 6:39 p.m., an email was received by the
Enforcement Bureau's Denver office from a police officer with the city
of Rifle, Colorado. The email stated that there was a concerned
citizen in Rifle, Colorado, who had observed a 400 foot tower near the
citizen's home with the top beacon "out for the last two weeks." A
Denver agent determined the antenna structure to have registration
number 1023390, registered to David L. Johnson ("Johnson").
4. On April 24, 2007, the Denver agent contacted the Federal Aviation
Administration ("FAA") Flight Service Station to determine if the
tower light outage had been reported. The FAA reported that they had
not received any information concerning a tower light outage and
advised that a Notice to Airmen ("NOTAM") would be issued concerning
the reported tower light outage for antenna structure number 1023390.
The FAA Flight Service Station then issued NOTAM number RIL 04/011.
5. On May 9, 2007 the FCC agent contacted the Rifle Police Department
about their observations of the tower lights associated with antenna
registration number 1023390. An officer contacted the Denver agent and
reported that he had received information indicating that the "top
beacon was still out." The Denver agent later confirmed that the
outage was observed, by a Rifle officer, during the night of May 5,
2007.
6. On May 9, 2007, at approximately 8:25 a.m., MDT, the Denver agent
again reported the tower outage to the FAA. The FAA promptly issued a
NOTAM for antenna structure number 1023390, assigning it reference
number RIL 05/004. No other NOTAM had been issued since the Denver
agent first called to report the tower light outage on April 24, 2007.
7. On May 15, 2007, Denver agents made several observations of the tower
structure with registration number 1023390. At approximately 9:00
p.m., MDT, they observed that all of the tower's obstruction lighting,
top beacon and side lights, had failed.
8. On May 16, 2007, Denver agents went to the main studio of KRGS, an AM
station broadcasting from antenna structure number 1023390, at 751
Horizon Court, Suite 200, Grand Junction, Colorado, to examine any
records concerning tower light outages. Agents conducted a review of
KRGS(AM)'s station records with the general manager and contract
engineer. The general manager provided the KRGS(AM) tower light logs
for inspection. The last entry was from November 20, 2006. The agents
found no entries in the logs concerning any tower outages for the
month of April 2007 up to the day of their visit on May 16, 2007. The
general manager said that he was not aware of any lighting problems at
the tower site prior to the agents' inspection.
9. Still on the afternoon of May 16, 2007, Denver agents drove to the
tower site in Rifle, Colorado, and met with the KRGS(AM) general
manager and contract engineer. When the remote automatic tower light
indicator system was checked, it reported no current for the tower
light system while at the transmitter site. Apparently, this remote
system, designed to register any tower lighting failures, had not been
notifying Western Slope. The contract engineer determined the
comprehensive lighting outage to be a result of a faulty A/C neutral
wire. While agents were on-site, the contract engineer repaired the
damaged wire. When the contract engineer covered the photocell, all of
the lights, top beacon and mid-level side lights, were observed by the
agents to be working properly. Finally, the contract engineer's
maintenance logs, found at the transmitter site, showed the last entry
reflecting an on-scene tower light inspection by him as being
conducted on August 1, 2006.
10. On November 14, 2007, further investigation by the Denver Office
revealed that Johnson was not the current owner of antenna structure
number 1023390, despite the fact that Johnson was listed as the owner
in the Commission's ASR database. Johnson was the former general
manager for KRGS(AM) and was no longer associated with the station. A
Denver agent contacted the KRGS(AM) general manager to determine the
current tower owner. The general manager was uncertain of the formal
name for the structure's ownership.
11. On November 16, 2007, the regional manager for Western Slope contacted
the Denver agent and informed him that Western Slope Communications
had purchased the land and antenna structure number 1023390 from
Johnson in 1996.
12. On November 20, 2007, the Denver agent queried the FCC's ASR database,
finding that a change in ownership had been completed. The data found
for antenna structure registration number 1023390 reflected the owner
to be Western Slope Communications, LLC. The reference copy of the
"FCC Application for Antenna Structure Registration" (FCC 854 Main
Form), file number A0569481, showed that an application was made on
November 19, 2007, to change the ownership.
13. On December 7, 2007, the Denver Office issued a NAL in the amount of
$13,000 to Western Slope. In the NAL, the Denver Office found that
Western Slope apparently repeatedly violated Section 303(q) of the
Communications Act of 1934, as amended, ("Act"), and Section 17.51(a)
of the Rules by failing to exhibit the structure's red obstruction
lighting from sunset to sunrise; and by failing to make observations
of the antenna structure's lights at least once each 24 hours either
visually or by observing an automatic properly maintained indicator
designed to register any failure of such lights, a violation of
Section 17.47(a) of the Rules. The Denver Office found that Western
Slope's failure to make the required observations of the lighting on
the antenna structure resulted in its failure to notify the nearest
Flight Service Station of the Federal Aviation Administration ("FAA")
of the outage of the flashing obstruction lights, a violation of
Section 17.48 of the Rules. The Denver Office also found that Western
Slope apparently repeatedly failed to immediately notify the
Commission of a change in ownership information for antenna structure
number 1023390, a violation of section 17.57. Western Slope filed a
response ("Response") on January 7, 2008, arguing that the proposed
forfeiture would pose an undue hardship, that it made a good faith
effort to meet its regulatory obligations, that it corrected the
violation once notified of it, and that it has a history of compliance
with the Commission's Rules. As to its failure to immediately notify
the Commission of a change in ownership if antenna structure number
1023390, Western Slope argues that its violation resulted in no harm
and that the forfeiture should be cancelled in favor of an
admonishment.
III. DISCUSSION
14. 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
the 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.
15. 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 record, antenna structure
number 1023390 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 a level at
approximately one-half the overall height of the tower. Section
17.47(a) requires that the owner of any antenna structure which is
registered with the Commission and has been assigned lighting
specifications shall make an observation of the antenna structure's
lights at least once each 24 hours either visually or by observing an
automatic properly maintained indicator designed to register any
failure. Section 17.48 of the Rules requires the owner of an antenna
structure to report immediately by telephone or telegraph to the
nearest Flight Service Station or office of the FAA any observed or
otherwise known extinguishment or improper functioning or any top
steady burning light or any flashing obstruction light, regardless of
its position on the antenna structure, not corrected within 30
minutes. Section 17.57 of the Rules requires the owner of an antenna
structure to immediately notify the Commission, using FCC Form 854,
upon any change in structure height or change in ownership
information.
16. On April 24, 2007, and May 9, 2007, Denver agents, in response to
lighting outages on antenna structure number 1023390 reported by
Rifle, Colorado police officers, contacted the FAA Flight Service
Station and found that Western Slope had not reported the outages,
thus requiring the Denver agents to request the issuance of NOTAMs. On
May 15, 2007, Denver agents made several observations of antenna
structure number 1023390 and found, at approximately 9:00 p.m., MDT,
that all of the tower's obstruction lighting, top beacon and side
lights, had failed. A review of the tower light observation logs for
antenna structure number 1023390 revealed that the last tower
observation documented in writing occurred on November 20, 2006. No
entries were found in the logs indicating any tower light outages from
April 2007 up to the day of the agents' May 16, 2007, inspection. The
general manager acknowledged to the Denver agents that he was unaware
of any lighting problems at the tower site prior to the agents'
inspection. An inspection of the tower site revealed that the tower's
remote automatic tower light indicator system failed to report any
current for the tower's lighting while at the transmitter site and
that the remote system, designed to register lighting failures, had
failed to notify Western Slope.
17. On November 14, 2007, further investigation by the Denver Office
revealed that Johnson was not the current tower owner despite the fact
that Johnson was listed as the owner in the Commission's ASR database.
On November 16, 2007, the Regional Manager for Western Slope confirmed
to the Denver agent that Western Slope had purchased the land and
antenna structure number 1023390 from Johnson in 1996.
18. In its Response, Western Slope does not dispute the facts, as detailed
above. Western Slope first argues that the proposed forfeiture should
be reduced or eliminated because it would pose an undue hardship on
its station KRGS(AM), Rifle, Colorado, which broadcasts from antenna
structure number 1023390, as the forfeiture amount is approximately
equal to KRGS(AM)'s projected annual gross revenue. To support this
assertion, Western Slope included in its Response the "balance sheet"
for KRGS(AM), for the first ten months of 2007. We note that in the
NAL, the Denver Office instructed Western Slope, if it sought
cancellation or reduction of the forfeiture based on inability to pay,
to supply:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted accounting
practices ("GAAP"); or (3) some other reliable and objective documentation
that accurately reflects the petitioner's current financial status. Any
claim of inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted.
Western Slope provided data related only to KRGS(AM) and did not provide
sufficient information related to Western Slope Communications, LLC, the
owner of the antenna structure that is the subject of the NAL. Moreover,
Western Slope provided data that covers only ten months in duration, not
the required three years of data. Consequently, we find Western Slope
provided insufficient documentation, to support its request for
cancellation or reduction of the forfeiture based on its inability to pay.
19. Western Slope also argues that it made good faith efforts to comply
with the Rules, by fitting antenna structure number 1023390 with
"modern remote sensing equipment to notify of lighting outages." As
detailed above, the remote sensing equipment was apparently installed
by Western Slope to comply with its obligations under Section 17.47(a)
of the Rules, which requires that 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 each 24 hours either visually or by observing an
automatic properly maintained indicator designed to register any
failure. Unfortunately, the equipment failed, and Western Slope failed
repeatedly over the course of nearly one month to notice the lighting
failure. Thus, while the installation of the equipment shows an effort
to comply with Section 17.47(a), as required, the equipment's
inoperability, and Western Slope's failure to notice the equipment's
inoperability, resulted in Western Slope's failure to exhibit the
obstruction lighting on structure number 1023390 for over three weeks.
Had Western Slope known of the failure of its monitoring equipment
prior to the inspection by the Denver agents, and had it taken steps
to correct equipment malfunctions prior to that inspection, we would
be willing to consider its good faith argument. Because Western Slope
made no efforts to repair the equipment prior to being notified of its
failure by the Denver Office, it does not qualify for a good faith
reduction.
20. Western Slope also argues that the proposed forfeiture should be
reduced or cancelled because it corrected the violations as soon as it
was notified, and that it cooperated fully with Commission staff.
Reduction is not warranted as the Commission expects antenna structure
registrants to correct errors when they are brought to their
attention. Western Slope further argues that its station KRGS(AM), has
a history of compliance with the Commission's Rules "under the current
licensee." The NAL, in this case was issued to Western Slope, not
KRGS(AM). Western Slope is commonly owned with WS Communications, LLC,
which was assessed a $4,000 forfeiture by the Enforcement Bureau in
2000, for willful and repeated violation of the Commission's public
inspection file requirements found in Section 73.3526 of the Rules.
Because of the relationship between and the common control of Western
Slope and WS Communications, LLC, we find that reduction of the
forfeiture based on a history of compliance is not warranted.
21. Western Slope also asserts that its failure to notify the Commission
of the change in ownership of antenna structure number was an
"inadvertent error" that had "no substantive effect" because although
the person listed as the structure's owner was the former general
manager of KRGS(AM), the agents contacted the current general manager
of station, without delay. We find no merit in this argument. The
agents contacted current KRGS(AM) personnel because they had already
investigated Western Slope's other violations of the Commission's
antenna structure rules, and were aware that KRGS(AM) broadcasts from
antenna structure number 1023390. The Commission has emphasized in the
past the importance of correct tower registrations in order to be able
to contact the tower owner in case a problem arises. Although Western
Slope states that the former owner was still the correct contact
person, he was no longer affiliated with Western Slope. Additionally,
we are troubled by the fact that this violation continued for over 11
years, and was not corrected by Western Slope after the inspection by
the Denver agents in May 2007. Six more months passed until the Denver
agents contacted Western Slope to determine the correct owner of the
structure, and only after that inquiry did Western Slope take action
to comply with Section 17.57 of the Rules. Contrary to Western Slope's
assertion, inadvertence for failure to notify the Commission of the
ownership change of the structure does not excuse or mitigate its
violation of the Rules. Additionally, Western Slope's assertion that
its violation of Section 17.57 resulted in no actual or potential harm
is also unavailing, as it is well established that the absence of
public harm is not considered a mitigating factor of a rule
violation."
22. We have examined the 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 Western Slope
repeatedly violated Section 303(q) of the Act, and Sections 17.51(a),
17.47(a), 17.48, and 17.57 of the Rules. Considering the entire
record and the factors listed above, we find that no reduction of the
proposed $13,000 forfeiture is warranted.
IV. ORDERING CLAUSES
23. 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, Western Slope
Communications, LLC, IS LIABLE FOR A MONETARY FORFEITURE in the amount
of $13,000 for repeatedly violating Section 303(q) of the Act, and
Sections 17.51(a), 17.47(a), 17.48, and 17.57 of the Rules.
24. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Western Slope Communications, LLC, shall also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
25. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Western
Slope Communications, LLC, at its address of record, and Frank R.
Jazzo, 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:S: 17.47(a), 17.48, 17.51(a), 17.57.
FAA Circular Number 70/7460-1J, Chapters 3, 4, 5 and 13.
FAA Circular Number 70/7460-1J, Chapters 3 and 13.
FAA Circular Number 70/7460-1J, Chapters 4, 5 and 13.
FAA Circular Number 70/7460-1J, Appendix 1, Figure 11.
FAA Circular Number 70/7460-1J, Chapters 5 and 13.
According to the U.S. Naval Observatory, sunset in Rifle, Colorado,
occurred at 8:18 p.m., MDT, on May 15, 2007.
Western Slope is the licensee of KRGS(AM), Rifle, Colorado.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832800001
(Enf. Bur., Western Region, Denver Office, released December 7, 2007).
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
47 C.F.R. S: 17.57.
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(a).
FAA Circular Number 70/7460-1J, Chapters 4 and 5.
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
47 C.F.R. S: 17.57.
The Denver agents' requests to issue NOTAMs were done to protect the
public safety, given that the FAA-mandated lighting on the structure was
not functioning and the antenna structure was therefore a potential hazard
to air navigation. We caution antenna structure owners, however, that it
is incumbent upon them, and not a third party, to notify the FAA of any
extinguishments or malfunctioning lights.
NAL at para 23.
See SM Radio, Inc., 23 FCC Rcd 2429 (2008) ( if a licensee argues an
inability to pay, it must provide evidence that it cannot pay the
forfeiture as assessed, despite all of the financial resources available
to it).
See Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 (2003), recon.
denied, 18 FCC Rcd 25481 (2003).
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
We note that our records show that KRGS(AM) received several oral warnings
from FCC Denver Office agents during an inspection in 2004.
47 C.F.R. S: 73.3526. See WS Communications, 15 FCC Rcd 10384 (EB 2000).
See Hill Country Real Estate Development, 18 FCC Rcd 21079 (EB 2003).
See American Tower Corporation, 16, FCC Rcd 1282 (2001).
Mercury Broadcasting Company, 19 FCC Rcd 18909, 18911 (EB 2004). As the
Commission has stated, "inadvertence . . . is at best ignorance of the
law," and is not considered a basis for reduction of a forfeiture.
Southern California Broadcasting, 6 FCC Rcd 4387, 4388 (1991).
Pacific Western Broadcasters, Inc., 50 FCC 2d 819 (1975). See also, Auburn
Broadcasters, Inc., 41 FCC 2d 462 (1973); The McLendon Corp., 18 FCC 2d
224 (1969).
47 U.S.C. S:S: 303(q), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4),
17.47(a), 17.48, 17.51.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1225
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Federal Communications Commission DA 08-1225