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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Equity Communications LP Licensee of Station WMID and
Owner of Antenna Structure Number 1046225 Atlantic City, New Jersey ) ) )
) ) ) ) ) File No.: EB-10-PA-0312; EB-FIELDNER-12-00004385 NAL/Acct. No.:
201232400001 FRN: 0003747813 Facility ID: 1307
Forfeiture Order
Adopted: September 17, 2014 Released: September 17, 2014
By the Regional Director, Northeast Region, Enforcement Bureau:
I. Introduction
1. We impose a penalty of $20,000 against Equity Communications LP
(Equity) for failure to properly paint its antenna structure or
enclose its antenna structure within an effective locked fence or
other enclosure. Public safety is at risk when antenna structures are
not properly illuminated and the Commission's fencing rules protect
the public by limiting access to areas with a high potential for
radiofrequency exposure. Equity does not deny that the paint on its
structure was faded and chipped or that the gate on the southeast side
of the structure was unlocked, but requests reduction of the
forfeiture because it had strobe lights installed on the tower and
repaired the gate as quickly as practicable and it has a history of
compliance with the Commission's rules. We find these arguments
provide insufficient basis to reduce the forfeiture and deny Equity's
request.
2. Specifically, we issue a monetary forfeiture to Equity, licensee of AM
Station WMID and owner of antenna structure number 1046225 (Antenna
Structure), in Atlantic City, New Jersey, for willfully and
repeatedly violating 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) for failure to repaint the Antenna Structure as often as
necessary to maintain good visibility and enclose the Antenna
Structure within an effective locked fence or other enclosure.^
II. Background
3. 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 the Antenna Structure, which had radio frequency potential
at its base.^ The agents contacted the Antenna Structure owner and
locked the gate before leaving the site.
4. 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.^
5. 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, either by repainting the Antenna Structure
or installing white strobe lighting.^ Equity also stated that, during
its own site visits, it had never seen the Antenna Structure's gate
left unlocked. Equity noted that several tenants lease space on the
Antenna Structure and each of them have a key for the locks.^
6. 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 (President) about the open
gate, which agents were unable to lock before leaving the site.
7. On November 17, 2010, the agents returned to the Antenna Structure
site and found that the gate on the northeast side of the Antenna
Structure was still unlocked. The agent contacted Equity's President,
who informed the agent that a new lock would be installed immediately.
Later that day, Equity's President contacted the agent and reported
that a new lock had been installed on the gate at the northeast side
of the Antenna Structure.
8. 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. On January
7, 2011, Station WMID's Chief Engineer reported that Equity had
installed white strobe lighting in lieu of paint.
9. On October 31, 2011, the Philadelphia Office issued a Notice of
Apparent Liability for Forfeiture and Order (NAL) ^ ^ to Equity for
failure to repaint the Antenna Structure as often as necessary to
maintain good visibility, in violation of Section 17.50(a) of the
Rules and failure to enclose the Antenna Structure within an effective
locked fence or enclosure, in violation of Section 73.49 of the Rules.
Equity filed a response to the NAL on November 22, 2011. Equity does
not dispute the findings in the NAL, but requests a reduction in the
proposed forfeiture based on its immediate efforts to bring the
Antenna Structure into compliance with the Rules and its overall
history of compliance with the Rules.^
III. discussion
10. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
Forfeiture Policy Statement.^ In examining Equity's response, Section
503(b)(2)(E) of the Act requires that the Commission take into account
the nature, circumstances, extent, and gravity of the violation 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.^ As discussed below, we have fully considered Equity's
response to the NAL in light of these statutory factors and find that
reduction of the forfeiture is not warranted.
11. We affirm the findings in the NAL regarding the faded and chipped
paint on the Antenna Structure and the unlocked gates surrounding the
Antenna Structure. As described above, agents from the Philadelphia
Office found that the paint on the Antenna Structure was faded and
chipped on March 5, 2010, November 16, 2010, and December 8, 2010, in
violation of Section 17.50(a) of the Rules. Similarly, agents from the
Philadelphia Office found that unlocked gates at the Antenna Structure
site allowed unrestricted access to the base of the Antenna Structure
from the southeast side on March 5, 2010, and from the northeast side
on November 16 and 17, 2010, in violation of Section 73.49 of the
Rules. Equity does not dispute these findings. Accordingly, we find
that Equity willfully and repeatedly violated Sections 17.50(a) and
73.49 of the Rules.
12. We decline to reduce the base forfeitures or the upward adjustment
based on Equity's claim that it "took immediate and substantial action
to correct these violations upon notification by the Commission." As
Equity recognized in its NAL Response, it is long-standing Commission
policy that corrective action taken to come into compliance with the
Rules is expected, and such corrective action does not nullify or
mitigate prior violations or associated forfeiture liability.^
Moreover, contrary to Equity's claim, we find that its remedial
actions with regard to the Antenna Structure were by no measure
"immediate." Equity was first notified about the faded and chipped
paint on March 5, 2010, but it was not until January 7, 2011, that the
Station's Chief Engineer notified the agent that strobe lights were
installed on the Antenna Structure in lieu of paint. We therefore
affirm our finding in the NAL that Equity's actions reflected a
deliberate disregard for the Rules and find that cancellation or
reduction of the proposed forfeiture amount is not warranted on the
basis of Equity's post-inspection remedial efforts.^
13. We also deny Equity's request to reduce the forfeiture based on its
history of compliance with the Rules. First, Equity received the NOV
in 2002 for failing to maintain the paint on antenna structure number
1046075 as required by Section 17.50(a) of the Rules and failing to
notify the Commission of Equity's purchase of such antenna structure.^
Second, in 2011, agents in the Philadelphia observed that Equity
failed to maintain an effective locked fence around an antenna
structure used in the operation of AM Station WCMC in Wildwood, New
Jersey.^ For these reasons, we find that a reduction for history of
compliance with the Rules is not warranted.
IV. ordering clauses
14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.204, 0.311, 0.314, and 1.80(f)(4) of the Rules,
Equity Communications, LP IS LIABLE FOR A MONETARY FORFEITURE in the
amount of twenty thousand dollars ($20,000) for violations of Section
17.50(a) and 73.49 of the Commission's rules.^
15. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Commission's 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.^ Equity
Communications, LP, shall send electronic notification of payment to
NER-Response@fcc.gov on the date said payment is made.
16. 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.
17. Any request for 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, [1]ARINQUIRIES@fcc.gov.
18. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Equity Communications, LP, 8025 Black Horse Pike, Suite
100-102, West Atlantic City, New Jersey, 08232, and to its counsel,
David D. Burns, Latham & Watkins LLP, 555 Eleventh Street, NW, Suite
1000, Washington, DC 20004.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
^ 47 U.S.C. S 303(q).
^ 47 U.S.C. SS 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. The Antenna Structure is 106 meters in height above
ground.
^ 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. SS 17.50, 73.49.
^ See Letter from Gary Fisher, President, Equity Communications LP, to
Gene Stanbro, District Director, Philadelphia Office (May 6, 2010) (on
file in EB-FIELDNER-12-00004385).
^ Id. at 1.
^ Id. Antenna structure owners may, if approved by the Federal Aviation
Administration (FAA), install white strobe lighting in lieu of paint. On
February 15, 2011, Equity received this approval from the FAA.
^ 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.
^Equity Communications, LP, Notice of Apparent Liability for Forfeiture
and Order, 26 FCC Rcd 15187 (Enf. Bur. 2011).
^ Letter from Gary Fisher, President, Equity Communications L.P., to Gene
Stanbro, then District Director of the Philadelphia Office (Nov. 22, 2011)
(on file in EB-FIELDNER-12-00004385) (NAL Response).
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See, e.g., Argos Net, Inc., Forfeiture Order, 28 FCC Rcd 1126 (Enf. Bur.
2013) (finding that post-notification remedial efforts do not warrant
mitigation of a forfeiture) (citing Int'l Broad. Corp., Order on Review,
25 FCC Rcd 1538 (2010)).
^ Contrary to Equity's claim (NAL Response at 4), the Commission has
issued upward adjustments based on a subject's deliberate disregard of the
Rules in a wide range of cases, not just cases involving unlicensed radio
station operation. See e.g., Iglesia Cristiana Ebenezer, Inc., Notice of
Apparent Liability for Forfeiture, 28 FCC Rcd 14642 (Enf. Bur. 2013)
(assessing upward adjustment on FM Translator licensee for deliberate
disregard of the Rules for continuing to operate its station at an
unauthorized location even after it was specifically directed by FCC
agents to cease the unauthorized operation); see also Fellowship World,
Inc., Notice of Apparent Liability for Forfeiture, 28 FCC Rcd 10246 (Enf.
Bur. 2013) (assessing upward adjustment on broadcast licensee for
operating its transmitter at an unauthorized location).
^ Equity Communications, LP, Notice of Violation (rel. Aug. 15, 2002) (on
file in EB-02-PA-287).
^ Equity Communications, LP, Notice of Apparent Liability for Forfeiture
and Order, 27 FCC Rcd 8031 (Enf. Bur. 2012). Section 504(c) of the Act, 47
C.F.R. S 504(c), prohibits the use of a non-final, non-adjudicated
forfeiture proceeding in any other proceeding before the Commission. The
Commission, however, may consider the underlying facts associated with
non-final, non-adjudicated forfeiture proceedings. See Forfeiture Policy
Statement, 12 FCC Rcd at 17102-03, paras. 32-35. Such facts may be used to
demonstrate "a pattern of non-complaint behavior against a licensee in a
subsequent renewal, forfeiture, transfer, or other proceeding." Id. at
17103, para. 34; see also [2]Paulino Bernal Evangelism, Memorandum Opinion
and Order, 21 FCC Rcd 9532, 9535, para. 11 (Enf. Bur. 2006) (in
considering whether a history of compliance exists, the Commission may
consider violations occurring in cases where there has been no final
determination), modified on other grounds, Order on Review, [3]23 FCC Rcd
15959 (Enf. Bur. 2006).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
17.50(a), 73.49.
^ 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 14-1341
2
Federal Communications Commission DA 14-1341
References
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