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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Martin Broadcasting, Inc. ) File No.: EB-11-HU-0052
Owner of Antenna Structure No. ) NAL/Acct. No.: 201232540004
1060813
) FRN: 0003768603
Beaumont, Texas
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: June 5, 2012 Released: June 5, 2012
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Martin Broadcasting, Inc. (Martin Broadcasting), owner of
antenna structure number 1060813 (the Antenna Structure), located in
Beaumont, Texas, apparently willfully and repeatedly violated Section
303(q) of the Communications Act of 1934, as amended (Act), and
Sections 17.47(a) and 17.51(a) of the Commission's rules (Rules) by
failing to exhibit red obstruction lighting from sunset until sunrise
and to monitor the structure lighting on a daily basis. We conclude
that Martin Broadcasting is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000). In addition, we direct
Martin Broadcasting to submit, no later than thirty (30) calendar days
from the date of this NAL, a statement signed under penalty of perjury
stating that it is now in compliance with the Commission's antenna
structure lighting and monitoring requirements.
II. BACKGROUND
2. Antenna structure number 1060813 is 151.5 meters in overall height
above ground and is required to be painted and lighted. On November 28
and 29, 2011, in response to a complaint, an agent from the
Enforcement Bureau's Houston Office (Houston Office) inspected the
Antenna Structure after sunset and observed that the top and midpoint
red obstruction lights and the . side lights were not lit. On November
28, 2011, the agent contacted the Federal Aviation Administration
(FAA) and determined that Martin Broadcasting had not notified the FAA
about the light outages.
3. On January 4, 2012, an agent from the Houston Office telephoned Martin
Broadcasting's owner. The owner stated that he learned of the light
outages on the Antenna Structure from previous voice messages left by
the agent. He also admitted that the lights on the Antenna Structure
were not being observed on a daily basis, and that the structure did
not have an alarm system to monitor the lights. He further stated that
he had not contacted the FAA concerning the light outage.
III. DISCUSSION
4. Section 503(b) of the 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 Sections 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
day.
A. Failure to Comply with Antenna Structure Lighting Requirements and
Failure to Monitor Antenna Structure Lighting
5. 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(a) of the Rules states that "[a]ll
red obstruction lighting shall be exhibited from sunset until sunrise
unless otherwise specified." Section 17.47(a) of the Rules states that
owners of antenna structures "(1) shall make an observation of the
antenna structure's lights at least once each 24 hours either visually
... to insure that all such lights are functioning properly as
required; or alternatively (2) shall provide and properly maintain an
automatic alarm system designed to detect any failure of such lights
and to provide indication of such failure to the owner. . . ."
6. On November 28 and 29, 2011, an agent from the Houston Office observed
that the top and midpoint red obstruction lights and the . side lights
on the Antenna Structure were extinguished after sunset. On January 4,
2012, Martin Broadcasting claimed that it was unaware that the lights
on the Antenna Structure were extinguished yet admitted that it had
learned of the outages from messages left by the FCC agent. Martin
Broadcasting also admitted that it was not observing the structure's
lights once every 24 hours and had no automatic alarm system. Based on
the evidence before us, we find that Martin Broadcasting apparently
willfully and repeatedly violated Section 303(q) of the Act and
Sections 17.47(a) and 17.51(a) of the Rules by failing to exhibit red
obstruction lighting on the Antenna Structure from sunset until
sunrise and to monitor the Antenna Structure's lights as required.
B. Proposed Forfeiture Amount and Reporting Requirement
7. 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. 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 Martin Broadcasting is apparently
liable for a total forfeiture in the amount of $10,000.
8. We direct Martin Broadcasting to submit a written statement, pursuant
to Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of Martin Broadcasting, stating that the lights on
the Antenna Structure have been restored, including the date of
restoration, or setting forth the timeframe for when the lights on the
Antenna Structure will be repaired or replaced. In addition, an
officer or director of Martin Broadcasting shall certify that it will
notify the FAA to ensure that an active Notice to Airmen remains in
place for the Antenna Structure until the lights on the Antenna
Structure have been restored. Martin Broadcasting shall also state
that it complies, or describe the steps it will take to comply with
the Section 17.47 monitoring requirements. This statement must be
provided to the Houston Office at the address listed in paragraph 11
within thirty (30) calendar days of the release date of this NAL.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, Martin Broadcasting,
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of ten thousand dollars ($10,000) for violations of
Section 303(q) of the Act and Sections 17.47(a) and 17.51(a) of the
Commission's rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Martin Broadcasting, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. IT IS FURTHER ORDERED that Martin Broadcasting, Inc. SHALL SUBMIT a
statement as described in paragraph 8 to the Houston Office within
thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order. The statement must be
mailed to Federal Communications Commission, Enforcement Bureau, South
Central Region, Houston Office, 9597 Jones Road, #362, Houston, Texas
77065. Martin Broadcasting shall also e-mail the written statement to
SCR-Response@fcc.gov.
12. Payment of the forfeiture must be made by credit card, 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 by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001.
Regardless of the form of payment, 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. If you have questions regarding
payment procedures, please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or E-mail: ARINQUIRIES@fcc.gov. Martin
Broadcasting, Inc. shall also send electronic notification on the date
said payment is made to SCR-Response@fcc.gov.
13. 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, South
Central Region, Houston Office, 9597 Jones Road, #362, Houston, Texas
77065 and include the NAL/Acct. No. referenced in the caption. Martin
Broadcasting, Inc. also shall email the written response to
SCR-Response@fcc.gov.
14. 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail to Martin Broadcasting, Inc. at
P.O. Box 419, Baytown, Texas 77522-0419.
FEDERAL COMMUNICATIONS COMMISSION
Stephen P. Lee
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 303(q); 47 C.F.R. S:S: 17.47(a), 17.51(a).
See 47 C.F.R. S: 17.21(a) (requiring antenna structures more than 60.96
meters in height above the ground to be painted and lighted). See also
Antenna Structure Registration database for antenna structure number
1060813.
Local sunset time was 5:16 p.m. Red obstruction lighting is required to be
exhibited from sunset until sunrise. See 47 C.F.R. S: 17.51(a).
A Notice to Airmen (NOTAM) had been issued for the Antenna Structure but
the FAA had issued it internally, without notification by Martin
Broadcasting. See 47 C.F.R. S: 17.48 (requiring antenna structure owners
to notify the FAA immediately of certain known lighting outages).
See 47 C.F.R. S: 17.47 (requiring antenna structure owners to observe
required lighting once every 24 hours or to install an automatic alarm
system).
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 act
(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), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
47 C.F.R. S: 17.47(a).
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S:S: 303(q), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 17.47(a), 17.51(a).
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-874
3
Federal Communications Commission DA 12-874