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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                               )                                
                                                                
     In the Matter of          )                                
                                                                
     Ely Radio, LLC            )   File Number: EB-08-SF-0039   
                                                                
     Antenna Structure Owner   )   NAL/Acct. No.: 200932960001  
                                                                
     Winnemucca, NV            )   FRN: 0014848899              
                                                                
     ASR # 1005854             )                                
                                                                
                               )                                


                          Memorandum opinion and order

   Adopted: July 10, 2012 Released: July 11, 2012

   By the Chief, Enforcement Bureau:

   I. Introduction

    1. In this Memorandum Opinion and Order (MO&O), we deny the petition for
       reconsideration (Petition) filed by Ely Radio, LLC (Ely), of the
       Forfeiture Order issued by the Enforcement Bureau's Western Region on
       October 30, 2009. Ely is the licensee of Station KWNA(AM) and-based on
       our decision herein-is the owner of antenna structure number 1005854
       in Winnemucca, Nevada. The Forfeiture Order imposed a monetary
       forfeiture against Ely in the amount of $11,000 for repeated violation
       of Section 303(q) of the Communications Act of 1934, as amended (Act),
       and certain provisions under Part 17 of the Commission's Rules (Rules)
       concerning antenna lighting and other requirements. As discussed
       below, we affirm the Forfeiture Order, and also require Ely to submit
       a sworn statement under penalty of perjury, within thirty (30)
       calendar days of release of this MO&O, confirming compliance.

   II. Background

    2. On October 31, 2008, the FCC Enforcement Bureau's San Francisco Office
       issued an NAL in the amount of $13,000 to Ely. In the NAL, the San
       Francisco Office found that Ely apparently repeatedly violated Section
       303(q) of Act and Section 17.51(a)  of the Rules, by failing to
       exhibit the structure's red obstruction lighting from sunset to
       sunrise; and violated Section 17.47(a) of the Rules, by failing to
       make observations of the antenna structure's lights at least once each
       24 hours. The San Francisco Office found that Ely'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 significant public safety concern and a
       violation of Section 17.48 of the Rules. The San Francisco Office also
       found that Ely apparently repeatedly failed to immediately notify the
       Commission of a change in ownership information for antenna structure
       number 1005854, a violation of Section 17.57.

    3. Although Ely denied ownership of, and responsibility for, the antenna
       during the investigation, the preponderance of the evidence
       established that Ely was the owner of the antenna. As part of the
       record evidence, the San Francisco Office sent a Letter of Inquiry
       (LOI) not only to Ely, but also to Sheen Broadcasting Company (Sheen),
       the former licensee of Station KWNA(AM). Sheen responded to the LOI,
       and confirmed that it was no longer a Commission licensee; that,
       pursuant to the Asset Purchase Agreement executed in August 2006, it
       assigned the Station and sold all the equipment used to operate the
       Station, including the antenna, to Ely; and that the only relationship
       it continues to have with Ely concerns the lease of a building and
       land on which the Station and antenna are located.

    4. On December 31, 2008, Ely filed a response to the NAL, contending
       that, based on its interpretation of the Asset Purchase Agreement, it
       was not the owner of antenna structure 1005854 and, therefore, could
       not have committed any of violations. The Enforcement Bureau's Western
       Region fully considered Ely's response and held, in the Forfeiture
       Order, that the NAL properly concluded, based on the preponderance of
       the evidence, that Ely was the owner of the antenna structure. In
       addition, the Forfeiture Order held that, independent of the Asset
       Purchase Agreement, Ely was nevertheless responsible for ensuring that
       the structure complied with the antenna lighting and other
       requirements based on undisputed record evidence that Ely was the only
       licensee using the antenna; that Ely had access to and control over
       the lighting on the antenna; and that it was Ely's personnel (by their
       own admission) that improperly extinguished the antenna lights that
       resulted in the violation of the Act and Rules. The Forfeiture Order
       also determined that the initially proposed $13,000 forfeiture in the
       NAL warranted some reduction based on Ely's history of compliance with
       the Rules. As such, the proposed forfeiture was reduced to $11,000.

    5. On November 30, 2009, Ely Radio filed a petition for reconsideration
       (Petition) of the Forfeiture Order, urging the Bureau to reverse the
       finding therein that Ely is the owner of the subject antenna
       structure. In its Petition, Ely Radio's sole argument is that the
       Western Region's interpretation of Section 2 of the Asset Purchase
       Agreement is incorrect because it is contrary to Nevada law.

   III. Discussion

    6. Reconsideration is appropriate only where the petitioner either
       demonstrates a material error or omission in the underlying order or
       raises additional facts not known or not existing until after the
       petitioner's last opportunity to present such matters. A petition for
       reconsideration that reiterates arguments that were previously
       considered and rejected will be denied. As discussed below, we find
       that Ely has not provided any basis to warrant reconsideration of the
       Forfeiture Order. We therefore affirm the Western Region's findings.

    7. In its Petition, Ely Radio does not dispute the facts concerning the
       Bureau's investigation, and nor does it dispute that registration for
       antenna structure number 1005854 has not been updated to show Ely as
       the registrant. Ely refuses to register the antenna because-it
       maintains-it is not the owner of the subject antenna structure;
       rather, Ely states, it is merely a "tenant" pursuant to a lease
       arrangement with Sheen for use of a building and land on which the AM
       transmitter and antenna are located. In its Petition, Ely specifically
       contends that reconsideration of the Forfeiture Order is appropriate
       because the Western Region's reading of the Asset Purchase Agreement
       (Agreement) is contrary to Nevada Law. The specific provision at issue
       is Section 2 of the Agreement stating: "Seller will sell, assign,
       transfer, convey and delivery to buyer . . . [a]ll tangible property
       and fixtures owned by Seller used or useful in the operation of the
       station." The Western Region found this and other related provisions
       in the Agreement as further support for its conclusion that Ely was
       the owner. In support of its request for reconsideration, Ely submits
       information that it contends is sufficient to counter the Western
       Region's understanding of the Agreement. As part of its Petition, Ely
       attached a legal opinion letter it solicited from a Nevada attorney,
       Bob Dolan. Mr. Dolan, in a letter addressed to Ely's counsel, states
       that he reviewed the Agreement and that, "based on Nevada statutes and
       case law," Sheen, not Ely, is the legal owner of the land on which the
       antenna tower is located. Mr. Dolan, in his letter, further opines
       that because the antenna is part of the land, Sheen is presumed to be
       its owner.

    8. We find that the opinion letter from Mr. Dolan is insufficient to
       warrant reconsideration. We are unable to evaluate the legal
       sufficiency of the letter because the letter does not provide the
       language or citations to the specific statutes and case law that
       counsel claims to have relied upon in rendering his legal opinion. In
       any event, with respect to the proper interpretation of the Asset
       Purchase Agreement, the Bureau will not adjudicate its proper
       interpretation under Nevada law. The interpretation of the referenced
       provision is most appropriately addressed by a court of competent
       jurisdiction, which Ely has not presented. At best, it appears that
       Ely and Sheen may have a continuing disagreement with respect to the
       contract and their respective understandings since its execution in
       August 2006. However, any resolution concerning a failure to perform
       pursuant to a private contractual arrangement, including appropriate
       remedies or damages, are matters to be resolved in a local forum.
       Here, the Bureau must render its decision based on the available
       record.

    9. Based on the overall record in this case, we find that the
       preponderance of the evidence supports the Forfeiture Order's
       conclusion that that Ely was (and is) the owner of the subject antenna
       structure for purposes of the relevant Part 17 Rules and, therefore,
       remains liable for the violations. The record evidence adduced-and
       even without consideration of the Asset Purchase Agreement-is
       sufficient to conclude that Ely is the owner. As the record reflects,
       Sheen was adamant in confirming that the sale of the Station to Ely
       included the antenna. In its LOI Response to the Bureau, Sheen stated:
       "Sheen Broadcasting co. sold all of its business assets and equipment
       to operate KWNA-AM and KWNA-FM to Ely Radio L.L.C. [since] 2006," and
       that "[t]he fault here lies with the ownership/ management of Ely
       Radio L.L.C. for not re-applying for a change in the records of the
       antenna structure." There is also a statement in the record from Ely's
       owner about his future plans to move the antenna structure to a
       different location. This statement, in our view, appears to concede
       ownership. In addition, Ely still has not proffered any new evidence,
       separate from the Asset Purchase Agreement, to support its position
       that Sheen retained title to the antenna structure or that Sheen would
       be responsible for the maintenance of the antenna. In this regard, Ely
       could have submitted an amendment (executed by both parties) to the
       Asset Purchase Agreement or its current lease arrangement that
       unequivocally confirms that Sheen was and is the owner of the antenna;
       and this begs asking why Ely has not (to this day) sought to amend the
       Asset Purchase Agreement with Sheen to clarify ownership of, and
       responsibility for, antenna structure number 1005854.

   10. Notwithstanding private contractual arrangements, Ely, as licensee, in
       any event, was and is responsible for complying with the relevant Part
       17 rules. Under Part 17 of the Commission's Rules, both antenna
       structure owners and licensees are responsible for maintaining the
       prescribed structure painting and/or lighting of antenna structures.
       This shared responsibility is intended to ensure that prescribed
       structure painting and/or lighting is maintained at all times, and
       that lighting outages will be promptly rectified, given compelling
       public safety concerns. As the Commission has stated, "if the owner
       cannot be reached or reliance on the owner to maintain prescribed
       structure painting and/or lighting proves to be ineffective, we [will]
       then turn to the individual tenant licensees as the entities to bear
       secondary responsibility for the structure's proper maintenance." So
       even assuming that a local court ultimately finds that Sheen, and not
       Ely, is the owner of the antenna under the Agreement, Ely knew or
       should have known that, as licensee, it had to assume responsibility
       for compliance with the applicable antenna structure rules since
       acquiring the Station in 2006, given that Sheen has consistently
       declined ownership and responsibility for the antenna or otherwise
       could not be relied upon to assume responsibility.

   11. We remain convinced nevertheless that Ely knew that it was responsible
       for the antenna structure, but failed to fully comply with the
       relevant rules. At the time of the violations, Ely was the only
       licensee using the antenna, and the record evidence suggests that Ely
       ceded to taking responsibility for the antenna, whether it believed it
       was the antenna owner or not, since it previously took steps to notify
       the FAA about past antenna light outages. In addition, as the record
       shows, it was Ely's employees that purposely turned off the flashing
       obstruction lights on the antenna because they believed that the
       lights were responsible for generating noise into the Station's audio
       feed; and they kept the lights off until they could confirm that the
       lights were not the source of the problem, and then turned the lights
       back on again. This level of control over the antenna lights, and
       without Sheen's involvement, further supports our belief that Ely knew
       it had responsibility for the antenna structure based on actual
       ownership, which it denies, or an understanding with Sheen, which it
       refuses to acknowledge. Even if Ely believed that Sheen had the
       requisite responsibility as owner, it should have immediately notified
       Sheen before turning off the flashing obstruction lights so that Sheen
       could have notified the FAA and averted any problems. The record is
       undisputed that, based on statements from Station management, Ely did
       not notify Sheen when they turned the lights off on the antenna. As
       such, Ely could hardly fault Sheen for the violations, which presented
       a significant public safety concern to the FAA.

   12. We therefore find that the overall evidence supports holding Ely as
       the responsible party for the violations, whether Ely is the legal
       owner of antenna structure number 1005854 or not, rendering any
       disputes about the proper interpretation of Section 2 of the Asset
       Purchase Agreement inconsequential. Because Ely's Petition does not
       demonstrate a material error or omission in the underlying orders or
       raise any additional facts that justify reconsideration, we see no
       reason to disturb the determinations reached in the Forfeiture Order.
       Accordingly, we affirm the Forfeiture Order and find Ely liable for a
       monetary forfeiture in the amount of $11,000 for repeatedly violating
       Section 303(q) of the Act and Sections 17.47(a), 17.48, 17.51(a), and
       17.57  of the Rules. In addition, we order Ely to submit a written
       statement signed under penalty of perjury by an officer or director of
       the company stating how the company has complied with the
       aforementioned provisions. This statement must be provided to the
       Enforcement Bureau at the address listed in paragraph 15, below,
       within thirty (30) calendar days of the release date of this
       Memorandum Opinion and Order. Ely Radio may be subject to additional
       enforcement action, including larger forfeitures, for any additional
       or ongoing violations.

   IV. ordering clauses

   13. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
       Communications Act of 1934, as amended, and Section 1.106 of the
       Commission's Rules, the Petition for Reconsideration filed by Ely
       Radio, LLC, IS DENIED and the Forfeiture Order IS AFFIRMED.

   14. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
       Sections 0.111, 0.311, and 1.80(f)(4) of the Rules, Ely Radio, LLC, IS
       LIABLE FOR A MONETARY FORFEITURE in the amount of eleven thousand
       dollars ($11,000) for violations of Section 303(q) of the Act and
       Sections 17.47(a), 17.48, 17.51(a), and 17.57  of the Rules.

   15. IT IS FURTHER ORDERED that Ely Radio, LLC, SHALL SUBMIT a sworn
       statement as described in paragraph 12, above, within thirty (30)
       calendar days of the release date of this Memorandum Opinion and
       Order, to Federal Communications Commission, Enforcement Bureau,
       Western Region Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood, CO
       80226, and must include the NAL/Acct. No. referenced in the caption.
       An electronic copy shall also be sent to WR-Response@fcc.gov.

   16. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.  Ely Radio, LLC, shall send electronic
       notification of payment to WR-Response@fcc.gov on the date said
       payment is made.

   17. The payment must be made by check or similar instrument, wire
       transfer, or credit card, and must include the NAL/Account number and
       FRN referenced above. Regardless of the form of payment, a completed
       FCC Form 159 (Remittance Advice) must be submitted. When completing
       the FCC Form 159, enter the Account Number in block number 23A (call
       sign/other ID) and enter the letters "FORF" in block number 24A
       (payment type code).   Below are additional instructions you should
       follow based on the form of payment you select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. 

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated. 

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101. 

   18. Any request for full payment under an installment plan should be sent
       to:  Chief Financial Officer-Financial Operations, Federal
       Communications Commission, 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 by
       phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov. 

   19. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
       sent by both First Class Mail and Certified Mail, Return Receipt
       Requested, to Ely Radio, LLC, 5010 Spencer, Las Vegas, Nevada, 89119,
       and to its counsel of record, Peter Gutmann, Womble Carlyle Sandridge
       & Rice, PLLC, 1401 I Street, NW, 7th Floor, Washington, D.C. 20005.

   FEDERAL COMMUNICATIONS COMMISSION

   P. Michele Ellison

   Chief, Enforcement Bureau

   See Ely Radio, LLC, Petition for Reconsideration (Nov. 30, 2009)
   (Petition).

   Ely Radio, LLC, Forfeiture Order, 24 FCC Rcd 13258 (Enf. Bur., Western
   Region 2009) (Forfeiture Order), aff'g, Notice of Apparent Liability for
   Forfeiture, NAL/Acct. No. 200932960001 (Enf. Bur., Western Region, San
   Francisco District Office rel. Oct. 31, 2008) (NAL).

   For purposes of this proceeding, use of the terms "antenna," "antenna
   structure," "radio tower," and "tower" refer to antenna structure number
   1005854 in Winnemucca, Nevada.

   47 U.S.C. S: 303(q).

   47 C.F.R. S:S: 17.47(a), 17.48, 17.51(a), 17.57.

   See NAL, supra note 2.

   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.

   See NAL, NAL/Acct No. 200932960001, at paras. 13-14.

   See Letter from Thomas N. Van Stern, District Director, San Francisco
   Office, to Torrey Sheen, Sheen Broadcasting Company (June 26, 2008) (on
   file in EB-08-SF-038).

   See Letter from Torrey Sheen, Sheen Broadcasting Company, to Thomas N. Van
   Stern, District Director, San Francisco Office (June 30, 2008) (on file in
   EB-08-SF-038) (Sheen LOI Response). See also Asset Purchase Agreement by
   and between Sheen Broadcasting Company, Seller, and Ely Radio, LLC, Buyer,
   dated August 28, 2006 (Asset Purchase Agreement or Agreement).

   See Ely Radio, LLC, Response to NAL (Dec. 1, 2008) (Ely Response to NAL).

   See Forfeiture Order, 24 FCC Rcd at 13262-64, paras. 12-17

   See id.

   See id. at 13254, para. 18.

   Forfeiture Order, 24 FCC Rcd at 13264. The Western Region agreed with Ely
   Radio's claim that it had a history of compliance with the Rules, but
   noted that Ely Radio's violation of Section 17.57 of the Rules (failure to
   update the antenna structure registration for antenna structure number
   1005458) remained ongoing and declined to reduce the $3,000 forfeiture for
   the Section 17.57 violation. The Western Region reduced the $10,000
   forfeiture amount for the other violations listed in the NAL to $8,000,
   nevertheless, because of Ely Radio's prior history of compliance.

   See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and
   Order, 15 FCC Rcd 18257, (Enf. Bur. 2000), citing WWIZ, Inc., 37 FCC 685,
   686 (1964), aff'd sub. nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C.
   Cir. 1965), cert. denied, 383 U.S. 967 (1966).

   EZ Sacramento, Inc., 15 FCC Rcd at 18257.

   A more complete recitation of the facts established in the NAL and
   Forfeiture Order are incorporated herein by reference.

   See Petition at 1-2. See also Asset Purchase Agreement, supra note 14, at
   Section 6.8.

   See id.

   Asset Purchase Agreement, supra note 14, at Section 2.

   The Forfeiture Order noted that Section 3 of the Asset Purchase Agreement
   details the "Excluded Assets," and that antenna structure number 1005854
   was not listed. See Forfeiture Order, 24 FCC Rcd at 13263, para. 15.

   See Petition, Attachment (Letter from Bob Dolan, Dolan Law LLC, to Peter
   Guttmann, Womble, Carlyle, Sandridge & Rice, PLLC, dated Nov. 30, 2009
   (Dolan Letter)).

   Dolan Letter, supra note 27.

   See id.

   We note that Ely's Petition also does not cite to any specific Nevada
   state statute or case law to support its position.

   See Listeners' Guild, Inc. v. FCC, 813 F.2d 465, 469 (D.C. Cir. 1987)
   (noting with approval the Commission's "long-standing policy of refusing
   to adjudicate private contract law questions for which a forum exists in
   the state courts").

   Ely was aware of Sheen's position in this regard since the beginning of
   this investigation. See Ely LOI Response at 2, para. 4 ("I understand that
   Mr. Sheen may have sent a letter to the FCC denying ownership of the tower
   and suggesting that he sold it late last year.")

   See Sheen LOI Response at paras. 1 (emphasis in original) and 3.

   See NAL, NAL/Acct No. 200932960001, at para. 5 ("Ely's owner further
   stated that he wanted to move the antenna structure to a new location.").

   See In the Matter of Streamlining the Commission's Antenna Structure
   Clearance Procedures and Revision of Part 17 of the Commission's Rules
   Concerning Construction, Marking, and Lighting of Antenna Structures, WT
   Docket No. 95-5, Report and Order, 11 FCC Rcd 4272, 4294, paras. 52-53
   (1995) (Antenna Structure Streamlining Report and Order) (emphasis added).
   See also 47 C.F.R. 17.6 (Responsibility of Commission Licensees and
   Permittees); 47 C.F.R. 73.1213(b) ("In the event of default by the owner,
   each licensee or permittee shall be responsible for ensuring that the
   structure complies with applicable painting and lighting requirements.").

   Antenna Structure Streamlining Report and Order, 11 FCC Rcd at 4293, para.
   50.

   As the NAL (at para. 5) reflects, "Ely's owner stated that he spoke to the
   FAA a year ago and notified the FAS over the past two months about the
   outage, but did not make any entries in the station log to memorialize
   this. Ely's owner also stated that he believed that antenna structure
   number 1005854 was less than 200 feet in height and that the airport does
   not have a control tower."

   See id.

   We remain convinced that Ely is the owner of the antenna structure at
   issue and that the Western Region's understanding of the Asset Purchase
   Agreement is correct.

   47 U.S.C. S: 303(q); 47 C.F.R. S:S: 17.47(a), 17.48, 17.51(a), 17.57.

   If Ely continues to challenge the Bureau's decision (while still using
   antenna structure number 1005854) and cannot otherwise convince Sheen to
   assume ownership of, and responsibility for, the antenna during the
   pendency of further administrative or court relief, we are directing Ely
   to properly maintain the structure and ensure compliance with applicable
   Part 17 rules for antenna structure number 1005854 to avert any public
   safety concerns. See 47 C.F.R. 17.6(b) ("In the event of non-compliance by
   the antenna structure owner, the Commission may require each licensee and
   permittee authorized on an antenna structure to maintain the structure,
   for an indefinite period, in accordance with the Antenna Structure
   Registration (FCC Form 854R) and the requirements of this subpart.").

   47 U.S.C. S: 405.

   47 C.F.R. S: 1.106.

   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(a), 17.57.

   47 C.F.R. S: 1.80.

   47 U.S.C. S: 504(a).

   An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   See 47 C.F.R. S: 1.1914.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 12-1097

   8

   Federal Communications Commission DA 12-1097