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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Equity Communications LP
) File No.: EB-10-PA-0312
Licensee of Station WMID and
) NAL/Acct. No.: 201232400001
Owner of Antenna Structure Number
1046225 ) FRN: 0003747813
Atlantic City, New Jersey )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 27, 2011 Released: October 31, 2011
By the District Director, Philadelphia Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Equity Communications LP ("Equity"), licensee of AM Station WMID
and owner of antenna structure number 1046225 (the "Antenna
Structure"), in Atlantic City, New Jersey, apparently willfully and
repeatedly violated section 303(q) of the Communications Act of 1934,
as amended ("Act") and sections 17.50(a) and 73.49 of the
Commission's rules ("Rules"), by failing to repaint the Antenna
Structure as often as necessary to maintain good visibility and
failing to enclose the Antenna Structure within an effective locked
fence or enclosure. We conclude that Equity is apparently liable for a
forfeiture in the amount of twenty thousand dollars ($20,000).
2. On March 5, 2010, agents from the Enforcement Bureau's Philadelphia
Office ("Philadelphia Office") inspected the Antenna Structure located
in Atlantic City, New Jersey. According to the Antenna Structure
Registration ("ASR") database, the Antenna Structure was required to
be painted and lit. The agents observed that the paint on the Antenna
Structure was faded and chipped, significantly reducing the Antenna
Structure's visibility. The agents also found that an unlocked gate on
the southeast side of the Antenna Structure allowed unrestricted
access to its base. The agents contacted the Antenna Structure owner
and locked the gate before leaving the site.
3. On April 7, 2010, the Philadelphia Office issued a Notice of Violation
("NOV") to Equity for failing to clean and repaint the Antenna
Structure as required to maintain good visibility, in violation of
section 17.50(a) of the Rules, and for failing to enclose the Antenna
Structure within an effective locked fence, in violation of section
73.49 of the Rules.
4. On May 6, 2010, the Philadelphia Office received Equity's response to
the NOV. In the letter, Equity stated that it inspects the Antenna
Structure several times per year and had been planning to address the
faded and chipped paint issue for some time. Equity further stated
that the Antenna Structure would be brought into compliance with the
Rules by August 15, 2010. Equity also stated that, during its own site
visits, it had never seen the Antenna Structure's gate left unlocked.
Finally, Equity stated that several tenants lease space on the Antenna
Structure and each of them has a key for the locks.
5. On November 16, 2010, agents from the Philadelphia Office re-inspected
the Antenna Structure to verify that the violations from the NOV had
been corrected. The agents found that Equity had neither repainted the
Antenna Structure nor installed strobe lights. The agents also found
the gate on the northeast side of the Antenna Structure was unlocked,
allowing unrestricted access to the Antenna Structure, which had radio
frequency potential at its base. The agents immediately informed
Equity's President and General Manager about the open gate. The next
day, the agents returned to the Antenna Structure site and found that
the gate on the northeast side of the Antenna Structure was still
6. On December 8, 2010, agents from the Philadelphia Office again
inspected the Antenna Structure with Equity's President and General
Manager and Station WMID's Chief Engineer. The Antenna Structure still
had not been repainted nor were strobe lights installed. The agent
used the Federal Aviation Administration's ("FAA") In-Service Aviation
Orange Tolerance Chart ("Tolerance Chart") to compare the paint on the
Antenna Structure with the standard in the Tolerance Chart. The paint
on the Antenna Structure failed the Tolerance Chart test.
7. On January 7, 2011, Station WMID's Chief Engineer notified the agent
via e-mail that Equity had installed strobe lights and that the
Antenna Structure's lighting system was fully operational.
8. Section 503(b) Act, provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines willful as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both section 312 and 503(b) of the Act and the
Commission has so interpreted the term in the section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
A. Failure to Clean or Repaint the Antenna Structure
9. 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 17.50(a) of the Rules requires that antenna
structures requiring painting shall be cleaned or repainted as often
as necessary to maintain good visibility. On March 5, 2010, FCC agents
observed that the paint on the Antenna Structure was severely faded
and chipped and immediately notified Equity of the structure's
condition. In response to the NOV issued on April 7, 2010, Equity
admitted that the Antenna Structure needed to be repainted, but Equity
still had not repainted the Antenna Structure when agents re-inspected
on November 16, 2010 and December 8, 2010. Because Equity failed to
paint the Antenna Structure as required by the rules, we find that the
violation was willful. Because the violation occurred over several
months, we find that the violation was repeated. Accordingly, we find
that Equity apparently willfully and repeatedly violated section 17.50
of the Rules by failing to clean or repaint Antenna Structure in order
to maintain good visibility.
A. Failure to Enclose the Antenna Structure Within an Effective Locked
10. Section 73.49 of the Rules states that "antenna towers having radio
frequency potential at the base must be enclosed with effective locked
fences or other enclosures." On March 5, 2010, agents found that the
gate on the southeast side of the Antenna Structure was left unlocked
and provided access to the Antenna Structure, which had radio
frequency potential at its base. On November 16, 2010, agents found
that the gate on the northeast side of the Antenna Structure was open
and allowed unrestricted access to the base of the Antenna Structure,
resulting in another warning from FCC agents. On November 17, 2010,
agents found that the gate on the northeast side of the Antenna
Structure was still open. Based on the evidence before us, we find
that Equity apparently willfully and repeatedly violated section 73.49
of the Rules by failing to enclose the antenna structure with an
effective locked fence or enclosure.
A. Proposed Forfeiture
11. Pursuant to the Commission's Forfeiture Policy Statement, and section
1.80 of the Rules, the base forfeiture amount for failing to comply
with prescribed lighting and marking is $10,000 and the base
forfeiture amount for failure to maintain an effective AM tower fence
is $7,000. In assessing the monetary forfeiture amount, we must also
take into account the statutory factors set forth in section
503(b)(2)(E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, 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.
Applying the Forfeiture Policy Statement, section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that an
upward adjustment is warranted. Despite repeated warnings regarding
the Antenna Structure's faded paint and the unlocked gates, the
apparent violations continued, demonstrating a deliberate disregard
for the Rules. We therefore conclude that Equity is apparently liable
for a forfeiture in the amount of $20,000.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.311,
0.314 and 1.80 of the Commission's rules, Equity Communications LP is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty thousand dollars ($20,000) for violation of sections
17.50(a) and 73.49 of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Equity Communications LP
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
14. Payment of the forfeiture must be made by credit card through the
Commission's Revenue and Receivables Operations Group at (202)
418-1995, or by check or similar instrument, payable to the order of
the Federal Communications Commission. The payment must include the
Account Number and FRN 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[s] by wire transfer may
be made to ABA Number 021030004, receiving bank Federal Reserve Bank
of New York, and account number 27000001. 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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Equity shall also send
electronic notification on the date said payment is made to
15. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Philadelphia Office, One Oxford Valley Building, Suite 404,
2300 East Lincoln Highway, Langhorne, Pennsylvania 19047 and include
the NAL/Acct. No. referenced in the caption. Equity Communications LP
also shall email the written response to NER-Response@fcc.gov
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(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.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Equity Communications LP at 8025
Black Horse Pike, Suite 100-102, West Atlantic City, New Jersey 08232.
FEDERAL COMMUNICATIONS COMMISSION
47 U.S.C. S: 303(q).
47 U.S.C. S:S: 17.50(a), 73.49.
Pursuant to section 17.21 of the Rules, antenna structures shall be
painted and lit when they exceed 60.96 meters in height above ground. 47
C.F.R. S: 17.21. Antenna structure number 1046625 is 106 meters in height
Section 73.49 of the Rules states that "antenna towers having radio
frequency potential at the base must be enclosed with effective locked
fences or other enclosures." 47 C.F.R. S: 73.49. The fence surrounding the
Antenna Structure has two gates for access. One gate is on the southeast
side and the other gate in on the northeast side. The gate that was found
unlocked on March 5, 2010 was the gate on the southeast side and agents
observed the lock hanging on the fence.
See Equity Communications LP, Notice of Violation, V201032400035 (rel.
April 7, 2010); see also 47 C.F.R. S:S: 17.50, 73.49.
See Letter from Gary Fisher, President, Equity Communications LP, to Gene
Stanbro, District Director, Philadelphia Office, dated May 6, 2010 ("NOV
NOV Response at 1.
Id. at 2.
The Color Tolerance Charts from the FAA provide a method for visually
comparing the paint on the tower against the chart colors, which reflect
the FAA's paint color specifications. These Color Tolerance Charts are
based on the recommendations contained in National Bureau of Standards
Report NBSIR 75-663, COLOR REQUIREMENTS FOR THE MARKING OF OBSTRUCTIONS,
by R.L. Booker.
The agent later confirmed that Equity had obtained a modified FAA No
Hazard Determination allowing it to use white strobe lighting in lieu of
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the [A]ct
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co."), recon. denied, 7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) (proposing a
forfeiture for, inter alia, a cable television operator's repeated signal
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he 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: 303(q).
47 C.F.R. S: 17.50.
47 C.F.R. S: 73.49.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 17.50(a),
See 47 C.F.R. S: 1.1914.
See 47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
Federal Communications Commission DA 11-1802
Federal Communications Commission DA 11-1802