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KAGM-FM Joint Venture

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Released: June 3, 2014
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Federal Communications Commission

DA 14-752

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

KAGM-FM Joint Venture

)

File No.: EB-FIELDWR-12-00001024

)

NAL/Acct. No.: 201232800008

Owner of Antenna Structure No. 1231632

)

FRN: 0008899247

Strasburg, CO

)

ORDER

Adopted: June 2, 2014

Released: June 3, 2014

By the Regional Director, Western Region, Enforcement Bureau:

I. INTRODUCTION

1.

In this Order, we find that KAGM-FM Joint Venture (KJV) failed to properly monitor and

light its antenna structure located near Strasburg, Colorado. In light of KJV’s poor financial condition and

history of compliance, however, we do not impose a forfeiture. Nevertheless, we warn KJV that future

violations may result in substantial forfeitures, regardless of its financial situation.

2.

Specifically, we find that KJV willfully and repeatedly violated Section 303(q) of the

Communications Act of 1934, as amended (Act),1 and Sections 17.47(a) and 17.51(a) of the Commission’s

rules (Rules) with respect to antenna structure number 1231632 (the Antenna Structure).2 The noted

violations involved KJV’s failure to: (1) monitor the Antenna Structure lighting on a daily basis; and (2)

exhibit any obstruction lighting on the Antenna Structure after sunset.

II.

BACKGROUND

3.

On September 20, 2012, the Enforcement Bureau’s Denver Office (Denver Office) issued

a Notice of Apparent Liability for Forfeiture (NAL)3 for fifteen thousand dollars ($15,000) to KJV for failing

to monitor the Antenna Structure lighting on a daily basis, and for failing to exhibit any obstruction lighting

on the Antenna Structure after sunset. In response to the NAL, KJV does not deny the violations, but states

that it has a history of compliance with the Act and the Rules, and that it is unable to pay the forfeiture.4

III.

DISCUSSION

4.

The proposed forfeiture amount in this case was assessed in accordance with Section

503(b) of the Act,5 Section 1.80 of the Rules,6 and the Forfeiture Policy Statement.7 In examining KJV’s

1 47 U.S.C. § 303(q).

2 47 C.F.R. §§ 17.47(a), 17.51(a).

3 KAGM-FM Joint Venture, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 11149 (Enf. Bur. 2012) (NAL).

A comprehensive recitation of the facts and history of this case can be found in the NAL and is incorporated herein

by reference.

4 See Response from KAGM-FM Joint Venture to Denver Office, Western Region, Enforcement Bureau (Nov. 2,

2012) (on file in EB-FIELDWR-12-00001024) (NAL Response). In its response to a Letter of Inquiry in this case,

KJV affirmed under penalty of perjury that it had fixed the violations. NAL, 27 FCC Rcd at 11150.

5 47 U.S.C. § 503(b).

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Federal Communications Commission

DA 14-752

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.8

5.

We affirm the NAL’s finding that KJV violated Section 303(q) of the Act and Sections

17.47(a) and 17.51(a) of the Rules.9 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 requires all red obstruction lighting to be exhibited from sunset to 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.

The Antenna Structure is 95 meters above ground in overall height and is required to be

painted and lit.10

As reflected in the NAL, on the night of February 27, 2012, an agent from the Denver

Office observed that all of the lights on the Antenna Structure were extinguished. According to KJV, the

light outage occurred when the power to the Antenna Structure was disconnected on November 9, 2011, due

to non-payment of its electric bills. KJV also stated that it was not aware of the light outage and

consequently did not report the outage to the FAA until after the Denver Office agent notified KJV of the

extinguishment on February 27, 2012.11 Based on the undisputed evidence, we conclude that KJV 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: (1) monitor the Antenna Structure lighting on a daily basis; and (2) exhibit required obstruction lighting

on the Antenna Structure after sunset.

7.

In response to the NAL, KJV requests cancellation of the $15,000 forfeiture, noting that it

has a history of compliance with the Rules,12 and asserting that it is unable to pay the forfeiture.13 It

supports its inability to pay argument with extensive financial documentation, including three years of tax

returns from each of the two partners of KJV as well as letters from two certified public accountants.14

We

have reviewed our records and agree that KJV has a history of compliance with the Rules. Second, with

regard to an individual’s or entity’s inability to pay claim, the Commission has determined that, in general,

gross income or revenues are the best indicator of an ability to pay a forfeiture.15 We have reviewed the

documents provide by KJV, specifically focusing on the income of the two partners of this joint venture, as

6 47 C.F.R. § 1.80.

7 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).

8 47 U.S.C. § 503(b)(2)(E).

9 See NAL, supra note 3.

10 See Antenna Structure Registration database for antenna structure number 1231632. See also 47 C.F.R. § 17.21

(requiring antenna structures more than 60.96 meters in height to be painted and lighted). See also FAA Study #

2004-ANM-238-OE.

11 See NAL, 27 FCC Rcd at 11151, para. 6.

12 See NAL Response at 2.

13 See NAL Response at 1–2.

14 See NAL Response at 1–2, Attachments 1–4.

15 See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088, 2089 (1992)

(forfeiture not deemed excessive where it represented approximately 2.02 percent of the violator’s gross revenues);

Hoosier Broadcasting Corporation, Memorandum Opinion and Order, 15 FCC Rcd 8640 (2002) (forfeiture not

deemed excessive where it represented approximately 7.6 percent of the violator’s gross revenues).

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Federal Communications Commission

DA 14-752

well as the assets available to KJV.16 Based on the financial documents provided by KJV, we find

sufficient basis to impose no forfeiture penalty due to demonstrated inability to pay.

8.

Nevertheless, we find that it is appropriate to admonish KJV for willful and repeated

violation of Section 303(q) of the Act and Section 17.47(a) and 17.51(a) of the Rules. We also remind KJV

of its obligation to continue to comply with the prescribed painting and lighting for the Antenna Structure

for as long as it owns the Antenna Structure or until the structure is dismantled.17 Future violations of the

Commission’s rules may result in substantial monetary penalties, regardless of KJV’s financial condition.

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(f)(4) of the Commission’s rules,

that the proposed forfeiture in the amount of fifteen thousand dollars ($15,000) issued to KAGM-FM Joint

Venture WILL NOT BE IMPOSED due to demonstrated inability to pay, and that the finding of willful

and repeated violations of Section 303(q) of the Act, and Sections 17.47(a) and 17.51(a) of the Rules IS

AFFIRMED.18

10.

IT IS FURTHER ORDERED that KAGM-FM Joint Venture IS ADMONISHED for

willful and repeated violations of Section 303(q) of the Act, and Sections 17.47(a) and 17.51(a) of the

Rules.19

11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both First Class

and Certified Mail, Return Receipt Requested, to KAGM-FM Joint Venture, 1644 Omni Blvd., Mount

Pleasant, SC 29466.

FEDERAL COMMUNICATIONS COMMISSION

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

16 See A-O Broadcasting Corporation, Order, 23 FCC Rcd 11296 (Enf. Bur. 2008) (cancellation of a proposed

forfeiture is appropriate where entity has no apparent income, assets, or access to lines of credit).

17 See 47 U.S.C. § 303(q) (the owner of an antenna structure shall maintain the prescribed painting and/or

illumination of such structure until the structure is dismantled).

18 47 U.S.C. §§ 303(q), 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4), 17.47(a), 17.51(a).

19 47 U.S.C. § 303(q); 47 C.F.R. §§ 17.47(a), 17.51(a).

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