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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Coastal Television Broadcasting Company LLC Owner of
Antenna Structure No. 1004021, Anchorage, Alaska ) ) ) ) ) ) ) File No.:
EB-FIELDWR-13-00005960 NAL/Acct. No.: 201432780001 FRN: 0016824336
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 24, 2013 Released: October 25, 2013
By the Resident Agent, Anchorage Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Coastal Television Broadcasting Company LLC (Coastal), owner of
antenna structure number 1004021 (the Antenna Structure), in
Anchorage, Alaska, apparently willfully and repeatedly violated
Section 17.57 of the Commission's rules (Rules),^ by failing to notify
the Commission upon a change in ownership information for the Antenna
Structure. We conclude that Coastal is apparently liable for a
forfeiture in the amount of four thousand, two hundred dollars
($4,200).
II. BACKGROUND
2. On January 7, 2013, an agent from the Enforcement Bureau's Anchorage
Office (Anchorage Office) inspected the Antenna Structure^ located in
Anchorage, Alaska.^ At the time of the inspection, a search of the
Commission's Antenna Structure Registration (ASR) database indicated
that the Antenna Structure was registered to Piedmont Television of
Anchorage License LLC (Piedmont). When the Anchorage agent called the
contact number listed on the ASR for the Antenna Structure, the agent
learned that the listed contact for Piedmont had not been at the
number for ten years. Through further investigation, the agent learned
that Piedmont was no longer the current tower owner and that the new
owner was Coastal. The agent contacted Coastal's corporate operating
officer and discussed the failure to notify the Commission of a change
in antenna structure ownership. Subsequently, Coastal's counsel
updated the ownership information on January 7, 2013.
3. On January 28, 2013, the Anchorage Office issued a Notice of Violation
(NOV) to Coastal concerning its failure to immediately notify the
Commission about the change in ownership information for the Antenna
Structure.^ In its NOV Response, Coastal stated that, within eight
hours after notification of the failure to change ownership
information, Coastal submitted a Form 854 to update the ownership
information.^ Coastal further stated that this failure was due to an
inadvertent administrative oversight, and that the ownership change
filing was apparently not completed at the time Coastal acquired the
antenna structure as part of its acquisition of television Station
KTBY(DT), located in Anchorage, Alaska.^ Commission records show that
Coastal consummated the assignment of the station license on May 7,
2008.^
III. DISCUSSION
4. Section 503(b) of the Communications Act of 1934, as amended (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 Update Ownership Information for the Antenna Structure
5. The evidence in this case establishes that Coastal violated Section
17.57 of the Rules. 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 ownership information.^ Antenna
structure owners must maintain current antenna structure registration
information with the Commission and post ASR numbers at the base of
antenna structures to allow for easy contact if problems arise.^
Coastal acquired the Antenna Structure on May 7, 2008, but failed to
update the ownership information for the structure until January 7,
2013, and only after notification from the Anchorage Office.^ Based
on the evidence before us, we find that Coastal apparently willfully
and repeatedly violated Section 17.57 of the Rules by failing to
immediately notify the Commission about a change in ownership for the
Antenna Structure.
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 file
required forms or information is $3,000.^ 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.^ Maintaining current ownership contact information in
the ASR database is particularly important, because it enables the
Commission and individuals to notify the structure owner promptly in
the event of a lighting failure or other malfunction. Because Coastal
failed to notify the Commission regarding the change in ownership for
over four and a half years, we find this violation particularly
egregious and warranting an upward adjustment of $1,200.^ Applying the
Forfeiture Policy Statement, Section 1.80 of the Rules, and the
statutory factors to the instant case, we conclude that Coastal is
apparently liable for a total forfeiture in the amount of $4,200 for
failure to notify the Commission of a change in ownership of an
antenna structure.
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, Coastal Television
Broadcasting Company LLC is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of four thousand, two hundred dollars
($4,200) for violation of Section 17.57 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, Coastal
Television Broadcasting Company LLC 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. Coastal Television Broadcasting Company LLC
shall also send electronic notification on the date said payment is
made to WR-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, Western
Region, Anchorage Resident Agent Office, P.O. Box 231949, Anchorage,
Alaska 99523-1949, and include the NAL/Acct. No. referenced in the
caption. Coastal Television Broadcasting Company LLC also shall e-mail
the written response to WR-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 Coastal Television Broadcasting
Company LLC at 3615 Hunley Ct., Cumming, Georgia 30028, and to its
counsel, Frank R. Jazzo, Esquire, at Fletcher, Heald & Hildreth, PLC,
1300 North 17^th Street, 11^th Floor, Arlington, Virginia 22209.
FEDERAL COMMUNICATIONS COMMISSION
Marlene Windel
Resident Agent
Anchorage Office
Western Region
Enforcement Bureau
^ 47 C.F.R. S 17.57.
^ Coastal is also the licensee of TV station KTBY(DT), Anchorage, Alaska,
and utilizes antenna structure number 1004021 to broadcast Station
KTBY(DT).
^ The Antenna Structure is 88.7 meters in overall height and is required
to have painting and lighting in accordance with Chapters 3, 4, 5, and 9,
of FAA Circular Number 70/7460-1G.
^ See Notice of Violation to Coastal (Jan. 28, 2013) (on file in
EB-FIELDWR-13-00005960) (NOV).
^ See Coastal Television Broadcasting Company LLC Response to Notice of
Violation (Feb 13, 2013) (on file in EB-FIELDWR-13-00005960) (NOV
Response).
^ See id. at 1.
^ See Coastal Television Broadcasting Company LLC, Consummation Notice
(filed May 8, 2008).
^ 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., 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 C.F.R. S 17.57.
^ See, e.g., American Tower Corporation, Notice of Apparent Liability, 16
FCC Rcd 1282 (proposing base forfeitures of $3,000 per violation for
failure to update antenna structure registration), Order and Consent
Decree, 16 FCC Rcd 14937 (2001) (resolving forfeiture proceeding and other
potential antenna structure rule violation cases).
^ Coastal states that its failure to immediately file the FCC Form 854
after it acquired the Antenna Structure was due to an inadvertent
administrative oversight. See NOV Response at 1. The Commission has long
held that administrative oversight or inadvertence does not serve to
excuse a violation of Section 17.57; nor does it serve as a mitigating
factor warranting a downward adjustment of a forfeiture. See Hacienda San
Eladio, Inc., Forfeiture Order, 28 FCC Rcd 1108, 1109, para. 5 (Enf. Bur.
2013). Further, the fact that Coastal promptly filed the FCC Form 854
after it was notified by the Anchorage Office about the required change in
ownership filing does not serve to nullify or mitigate the violation,
because corrective action taken to come into compliance with the Rules is
expected. See id. at 1110, para. 6.
^ 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, e.g., Latin Broadcasting Company, Notice of Apparent Liability for
Forfeiture and Order, 28 FCC Rcd 2170 (Enf. Bur. 2013) (proposing $4,000
forfeiture for failing to update ASR ownership information for over three
and a half years).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
17.57.
^ 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 13-2060
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Federal Communications Commission DA 13-2060