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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Union Broadcasting, Inc. Owner of Antenna Structure No.
1014880 Nashua, MO ) ) ) ) ) ) File No.: EB-FIELDSCR-12-00005365 NAL/Acct.
No.: 201332560007 FRN: 0008263642
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 16, 2013 Released: May 16, 2013
By the District Director, Kansas City Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Union Broadcasting, Inc. (Union), owner of antenna structure
number 1014880 (Antenna Structure) in Nashua, Missouri, apparently
willfully and repeatedly violated Section 303(q) of the Communications
Act of 1934, as amended (Act),^ and Section 17.56(a) of the
Commission's rules (Rules),^ by failing to repair the lighting on the
Antenna Structure as soon as practicable. We conclude that Union is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000).
II. BACKGROUND
2. On November 9, 2012, an agent from the Kansas City Office of the
Enforcement Bureau (Kansas City Office) inspected the Antenna
Structure and found that all of the lights on the structure were
unlit.^ According to Union's representative, Union first reported the
lighting outage to the Federal Aviation Administration (FAA) on August
5, 2010 and re-reported the outage every two weeks thereafter.^
3. On November 28, 2012, the Kansas City Office issued a Notice of
Violation (NOV) to Union for, among other things, failing to repair
the Antenna Structure's lights as soon as practicable in violation of
Section 17.56(a) of the Rules.^ In response, Union did not deny that
the lights on the Antenna Structure had been inoperable since at least
August 5, 2010, but stated that the repairs were complicated due to
"concerns with the modifications creating changes to the nighttime
pattern and additional problems resulting from a copper theft at the
facility."^ Union also stated that "[a]t this point in time, [Union]
has repaired the problems with the lighting."^
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 Timely Repair Antenna Structure Lighting
5. The evidence in this case is sufficient to establish that Union
violated Section 303(q) of the Act and Section 17.56(a) of the Rules.
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 17.56(a) of the Rules requires that
"[r]eplacing or repairing of lights . . . shall be accomplished as
soon as practicable."^ The Antenna Structure is 91.4 meters above
ground in overall height and is required to be painted and lighted.^
According to Union, the Antenna Structure's lights were extinguished
at least as of August 5, 2010. An agent from the Kansas City Office
confirmed that the Antenna Structure's lights were still unlit on
November 9, 2012, and Union asserts the lights were not repaired until
around December 18, 2012. Union has failed to provide a sufficient
explanation that would reasonably prevent it from repairing the light
outage for more than two years. By any reasonable interpretation of
the requirement that repairs be made "as soon as practicable," Union
has failed to comply with that requirement.^ Based on the evidence
before us, we find that Union apparently willfully and repeatedly
violated Section 303(q) of the Act and Section 17.56(a) of the Rules
by failing to repair antenna structure lighting as soon as
practicable.
B. Proposed Forfeiture
6. 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/or 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.^ We believe that Union's
continued failure to correct the light outage for more than two years
demonstrates a deliberate disregard for the Commission's rules and
warrants an upward adjustment of $5,000.^ Applying the Forfeiture
Policy Statement, Section 1.80 of the Rules, and the statutory factors
to the instant case, we conclude that Union is apparently liable for a
total forfeiture in the amount of $15,000 for violations of Section
303(q) of the Act and Section 17.56(a) of
the Rules.
IV. ORDERING CLAUSES
7. 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, Union Broadcasting,
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of fifteen thousand dollars ($15,000) for violations of
Section 303(q) of the Act and Section 17.56(a) of the Rules.^
8. 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, Union
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.
9. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Union Broadcasting, Inc. shall also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov. 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.
10. Any request for making full payment over time 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.
11. 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 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Kansas City Office, 520 N.E. Colbern Rd., 2nd Floor,
Lees Summit, MO 64086-4711, and include the NAL/Acct. No. referenced
in the caption. Union Broadcasting, Inc. also shall e-mail the written
response to SCR-Response@fcc.gov.
12. 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 principles (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.
13. 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 First Class Mail to Union Broadcasting, Inc. at 6721
West 121 Terrace, Overland Park, KS 66209, and to its counsel, Nancy
A. Ory at Lerman Senter PLLC, 2000 K Street, NW, Suite 600,
Washington, DC 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
Ronald D. Ramage
District Director
Kansas City Office
South Central Region
Enforcement Bureau
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. S 17.56(a).
^ The Antenna Structure is 91.4 meters above ground in overall height. See
Antenna Structure Registration database for antenna structure number
1014880. See also 47 C.F.R. S 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted); 47 C.F.R. S
17.51(a) (requiring all red obstruction lighting to be exhibited from
sunrise to sunset).
^ The agent confirmed on November 8, 2012 that the FAA had issued a Notice
to Airmen for the Antenna Structure.
^ Union Broadcasting, Inc., Notice of Violation, NOV No. V201332560008
(rel. Nov. 28, 2012).
^ Letter from Nancy Ory, Lerman Senter PLLC, attorney for Union
Broadcasting, Inc., to Kansas City Office, Enforcement Bureau at 4 (Dec.
18, 2012) (on file in EB-FIELDSCR-12-00005365) (NOV Response).
^ Id.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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 17.56(a).
^ See Antenna Structure Registration database for antenna structure
number 1014880. See also 47 C.F.R. S 17.21 (requiring antenna structures
more than 60.96 meters in height to be painted and lighted).
^ See, e.g., Telava Wireless, Inc., Notice of Apparent Liability for
Forfeiture and Order, 27 FCC Rcd 3246 (Enf. Bur. 2012) (holding that
failing to repair antenna structure lights for over two years was not
acting "as soon as practicable") (Telava Wireless NAL).
^ 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).
^ See Telava Wireless NAL, 27 FCC Rcd at 3249 (proposing $15,000
forfeiture for failing to repair antenna structure lighting for over two
years).
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.56(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.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 13-1095
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Federal Communications Commission DA 13-1095