Federal Communications Commission
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Ely Radio, LLC
File Number: EB-08-SF-0039
NAL/Acct. No.: 200932960001
Former Owner of Antenna Structure Number
1005854, Winnemucca, NV1
ORDER ON REVIEW
Adopted: April 24, 2013
Released: April 25, 2013
By the Commission: Commissioner McDowell not participating.
In this Order on Review, we deny the Application for Review2 filed by Ely Radio, LLC
(Ely), a broadcast licensee and former owner of antenna structure number 1005854 in Winnemucca,
Nevada.3 Ely seeks Commission review of the Memorandum Opinion and Order (MO&O
) issued by the
Enforcement Bureau (Bureau) on July 11, 2012, in this proceeding.4 In the MO&O
, the Bureau denied
Ely’s petition for reconsideration of an eleven thousand dollar ($11,000) forfeiture for violation of Section
303(q) of the Communications Act of 1934, as amended (Act),5 and certain provisions under Part 17 of
the Commission’s rules (Rules).6 The noted violations concerned Ely’s failure to ensure that the antenna
structure exhibited the required obstruction lighting and that the antenna structure’s registration with the
Commission was appropriately updated to reflect a change in ownership.7 For the reasons discussed below,
1 See infra
Appeal, filed by Ely Radio, LLC (Aug 1, 2012) (on file in EB-08-SF-0039) (Application for Review).
Although Ely entitled its document as an “Appeal,” we are referring to the document in this proceeding as an
“Application for Review,” consistent with Commission rules. See
47 C.F.R. § 1.115.
3 For purposes of this proceeding, use of the term “antenna structure” refers to antenna structure number 1005854 in
Winnemucca, Nevada. Also, we note that Ely Radio, LLC is the licensee of AM radio station KELY in Ely, Nevada.
4 Ely Radio, LLC,
Memorandum Opinion & Order, 27 FCC Rcd 7608 (Enf. Bur. 2012) (MO&O
Order, 24 FCC Rcd 13258 (Enf. Bur., Western Region 2009) (Forfeiture Order
), Notice of Apparent Liability for
NAL/Acct. No. 200932960001 (Enf. Bur., Western Region, San Francisco District Office rel. Oct. 31,
5 47 U.S.C. § 303(q).
47 C.F.R. §§ 17.47(a), 17.48, 17.51(a), 17.57.
7 At the time of the violation, Ely was the licensee of Station KWNA(AM), Winnemucca, Nevada, which used the
antenna structure to broadcast its signal and was determined by the Bureau to be the owner of the antenna structure.
On August 29, 2012, the Commission’s Media Bureau granted an application assigning the license for Station
KWNA(AM) from Ely to Buckaroo Broadcasting, LLC (Buckaroo). See
File No. BAL-20120508ADB, granted
August 29, 2012. The parties consummated the assignment on October 19, 2012. See
Notice of Consummation,
filed October 22, 2012. Buckaroo also filed the required FCC Form 854 to update the Antenna Structure’s
ownership on February 21, 2013. See
Antenna Structure Registration (ASR) database for antenna structure number
1005854 (which now reflects Buckaroo as the registered owner).
Federal Communications Commission
we deny Ely’s Application for Review, affirm the Bureau’s MO&O
, and order Ely to pay the $11,000
On October 31, 2008, the Enforcement Bureau’s San Francisco Office issued an NAL
the amount of $13,000 to Ely.8 In the NAL
, the San Francisco Office found that Ely apparently repeatedly
violated Section 303(q) of the Act and Section 17.51(a) of the Rules, by failing to exhibit the antenna
structure's red obstruction lighting from sunset to sunrise; and violated Section 17.47(a) of the Rules, by
failing to make observations of the antenna structure's lights at least once each 24 hours.9 The San
Francisco Office found that Ely’s failure to make the required observations of the lighting on the antenna
structure resulted in its failure to notify the nearest Flight Service Station of the Federal Aviation
Administration of the outage of the flashing obstruction lights, a significant public safety concern and a
violation of Section 17.48 of the Rules.10 The San Francisco Office also found that Ely apparently
repeatedly failed to immediately notify the Commission of a change in ownership information for antenna
structure number 1005854 after it acquired Station KWNA(AM), a violation of Section 17.57.11
Although Ely denied ownership of, and responsibility for, the antenna structure during the
investigation, the preponderance of the evidence established that Ely was the owner of the structure.12 As
part of the record evidence, the San Francisco Office sent a Letter of Inquiry (LOI) not only to Ely, but also
to Sheen Broadcasting Company (Sheen), the former licensee of Station KWNA(AM).13 Sheen responded
to the LOI, and confirmed that it was no longer a Commission licensee; that, pursuant to the Asset Purchase
Agreement for the sale of Station KWNA(AM) to Ely in August 2006, it assigned the Station and sold all
the equipment used to operate the Station, including the antenna structure; and that the only relationship it
continues to have with Ely concerns the lease of a building and land on which the Station and structure are
On December 31, 2008, Ely filed a response to the NAL
, contending that, based on its
interpretation of the Asset Purchase Agreement, it was not the owner of antenna structure 1005854 and,
therefore, could not have committed any of violations.15 The Enforcement Bureau’s Western Region
fully considered Ely’s response and held, in the Forfeiture Order
, that the NAL
properly concluded, based
8 See NAL, supra
9 47 U.S.C. § 303(q); 47 C.F.R. §§ 17.47(a), 17.51(a).
10 47 C.F.R. § 17.48.
11 47 C.F.R. § 17.57.
12 See NAL
, NAL/Acct. No. 200932960001, at paras. 13–14.
Letter from Thomas N. Van Stavern, District Director, San Francisco Office, to Torrey Sheen, Sheen
Broadcasting Company (June 26, 2008) (on file in EB-08-SF-038).
Letter from Torrey Sheen, Sheen Broadcasting Company, to Thomas N. Van Stavern, District Director, San
Francisco Office (June 30, 2008) (on file in EB-08-SF-038) (Sheen LOI Response). See also
Agreement by and between Sheen Broadcasting Company, Seller, and Ely Radio, LLC, Buyer, dated August 28,
2006 (Asset Purchase Agreement).
15 See Ely Radio, LLC
, Response to NAL (Dec. 1, 2008) (on file in EB-08-SF-0039).
Federal Communications Commission
on the preponderance of the evidence, that Ely was the owner of the antenna structure.16 In addition, the
Western Region held that, independent of the Asset Purchase Agreement, Ely was nevertheless
responsible for ensuring that the structure complied with the antenna lighting and other requirements
based on undisputed record evidence that Ely was the only licensee using the antenna structure; that Ely
had access to and control over the lighting on the antenna structure; and that it was Ely’s personnel (by
their own admission) that improperly extinguished the antenna lights that resulted in the violation of the
Act and the Rules.17 The Western Region also determined that the initially proposed $13,000 forfeiture in
warranted some reduction based on Ely’s history of compliance with the Rules prior to the
investigation in this case.18 As such, the proposed forfeiture was reduced to $11,000.19
On November 30, 2009, Ely filed a petition for reconsideration (Petition) of the
, urging the Bureau to reverse its determination that Ely was responsible for the
violations of the Commission’s tower rules as the owner of the subject antenna structure.20 In its Petition,
Ely did not dispute the Bureau’s factual findings, but argued that the Bureau’s understanding of the Asset
Purchase Agreement21 was contrary to Nevada state law, based on a legal opinion letter from a Nevada
attorney retained by Ely.22 The Bureau, however, declined to adjudicate the proper interpretation of the
Asset Purchase Agreement between Ely and Sheen under Nevada law.23 The Bureau noted that the proper
body to interpret the relevant provision at issue was a court of competent jurisdiction in the State of
Nevada, given the continuing disagreement between Ely and Sheen concerning certain provisions of the
Asset Purchase Agreement.24 The Bureau, instead, affirmed the Forfeiture Order
based on the available
record. The Bureau held: “Based on the overall record in this case, we find that the preponderance of the
evidence supports the Forfeiture Order
’s conclusion that Ely was (and is) the owner of the subject
antenna structure for purposes of the relevant Part 17 Rules and, therefore, remains liable for the
16 See Forfeiture Order
, 24 FCC Rcd at 13262–64, paras. 12–17
17 See id.
In addition, Ely did not dispute the statement in the record in which Ely’s owner told the Bureau’s agents
that he wanted to move the antenna structure to a new location, which suggests acknowledgment of ownership of the
structure; and that he previously reported prior antenna light outages to the FAA, which suggests prior acceptance of
responsibility for the structure. See NAL
, NAL/Acct. No. 200932960001, at para 5.
18 See Forfeiture Order
, 24 FCC Rcd at 13264, paras. 18–19.
19 See id
Ely Radio, LLC, Petition for Reconsideration (Nov. 30, 2009) (on file in EB-08-SF-0039) (Petition).
21 The specific provision at issue is Section 2 of the Agreement which states: “Seller will sell, assign, transfer, convey
and delivery to buyer . . . [a]ll tangible property and fixtures owned by Seller used or useful in the operation of the
station.” See supra
note 14. The Forfeiture Order
noted that Section 3 of the Asset Purchase Agreement details the
“Excluded Assets,” and that antenna structure number 1005854 was not listed, supporting Sheen’s position that the
antenna was included in the sale of the station. See Forfeiture Order
, 24 FCC Rcd at 13263, para. 15.
22 See Petition
at 1–2 & Attachment (Letter from Robert Dolan, Dolan Law LLC, to Peter Gutmann, Womble,
Carlyle, Sandridge & Rice, PLLC, dated Nov. 30, 2009) (Dolan Letter) (In his opinion letter, Mr. Dolan stated that
he reviewed the Agreement and that, “based on Nevada statutes and case law,” Sheen, not Ely, is the legal owner of
the land on which the antenna tower is located. In addition, Mr. Dolan opined that because the tower is part of the
land, Sheen is presumed to be its owner.).
23 See MO&O
, 27 FCC Rcd at 7610–13, paras. 7–12.
24 See id
. at 7611, para. 8.
Federal Communications Commission
violations.”25 Moreover, the Bureau also found that the Commission’s rules and policies nevertheless
obligated Ely, as the licensee using the antenna structure in question and based on the facts and
circumstances of this case, to comply with the relevant Part 17 requirements, thereby rendering the
question of whether Ely was the legal owner of the antenna structure under Nevada law inconsequential
for purposes of finding a violation of the Commission’s rules.26 Thereafter, Ely filed an Application for
Review of the Bureau’s MO&O
which we discuss below.
Pursuant to Section 1.115(b)(2) of the Commission’s rules, to obtain relief through an
application for review, an aggrieved party must specify, inter alia
, how an action taken pursuant to
delegated authority conflicts with a relevant “statute, regulation, case precedent, or established
Commission policy,” or “involves a question of law or policy which has not previously been resolved by
the Commission.”27 In its Application for Review, Ely does not dispute the Bureau’s factual findings in
this case, but argues that the Bureau erred in ruling that Ely is the owner of the subject antenna structure
by disregarding the “expert opinion” of a Nevada real estate attorney, who opined that Sheen remains the
owner of the antenna structure because—based on the Nevada attorney’s interpretation of Nevada law—a
fixture such as a tower is part of the real estate unless otherwise provided for in the purchase or sale
agreement.28 Ely further states that the Bureau, in so ruling, effectively “amended” Nevada real estate
law, which the Bureau did not have authority to do; and that even if the Bureau had such authority, it
failed to follow the notice and comment procedures under the Administrative Procedure Act.29
We find no merit in Ely’s argument. The Bureau made clear in the MO&O
that it was
adjudicating the controversy based on Nevada law, but based on the case record compiled before the
FCC, including all filings made by Ely, which Ely does not question. Therefore, Ely’s suggestion that the
Bureau inappropriately “amended” Nevada law is misplaced. In the MO&O
, the Bureau held:
We find that the opinion letter from [the Nevada attorney] is insufficient to warrant
reconsideration. We are unable to evaluate the legal sufficiency of the letter because the
letter does not provide the language or citations to the specific statutes and case law that
counsel claims to have relied upon in rendering his legal opinion. In any event, with
respect to the proper interpretation of the Asset Purchase Agreement, the Bureau will not
adjudicate its proper interpretation under Nevada law. The interpretation of the
referenced provision is most appropriately addressed by a court of competent jurisdiction,
which Ely has not presented. At best, it appears that Ely and Sheen may have a
continuing disagreement with respect to the contract and their respective understandings
since its execution in August 2006. However, any resolution concerning a failure to
. at 7611, para. 9.
. at 7612–14, paras. 10–12.
47 C.F.R. § 1.115(b)(2); Beasley Broadcast Group, Inc., WQAM Limited Partnership, Application for
Renewal of License of Station WQAM(AM), Miami, Florida,
Memorandum Opinion and Order, 23 FCC Rcd 15949,
Application for Review at 1. Underlying this argument is Ely’s assertion that the Asset Purchase Agreement
did not include the sale of the antenna structure, which Sheen (the former licensee) disputed. See MO&O
, 27 FCC
Rcd at 7609, para. 3. See also
Sheen LOI Response, supra
Application for Review at 1–2.
Federal Communications Commission
perform pursuant to a private contractual arrangement, including appropriate remedies or
damages, are matters to be resolved in a local forum. Here, the Bureau must render its
decision based on the available record.30
We find nothing legally incorrect or inappropriate about the Bureau’s decision. This case
involves an unlit antenna structure that presented a potentially serious hazard to aviation. The Bureau has
a regulatory responsibility to enforce the Commission’s rules to prevent such situations and to take
appropriate action where it finds violations. Here, the Bureau was required to determine the party
responsible for ensuring that the antenna structure in question complied with all relevant Commission
rules. In making that determination, the Bureau was not required to follow the conclusory and
unsupported interpretation of Nevada law favored by Ely’s Nevada counsel. Rather, the Bureau must
conduct its own analysis of the evidence presented. In this case, based on the available record evidence
and the Commission’s policies and regulations, the Bureau reasonably determined that Ely was the
antenna structure owner31 and, therefore, was responsible for the violations at issue here.32
Moreover, Ely does not dispute that even if it is not the legal owner of the antenna
structure, the Commission’s rules and policies nonetheless obligate it, as licensee, to comply with the
relevant Part 17 requirements.33 On this point, the evidence is clear that: (1) Ely was the only licensee
, 27 FCC Rcd at 7611, para. 8 (internal citations omitted).
31 The Bureau provided Ely with an opportunity to provide additional evidence to support its position concerning
ownership, but it never did. On this point, the Bureau stated:
In addition, Ely still has not proffered any new evidence, separate from the Asset Purchase
Agreement, to support its position that Sheen retained title to the antenna structure or that Sheen
would be responsible for the maintenance of the antenna. In this regard, Ely could have submitted
an amendment (executed by both parties) to the Asset Purchase Agreement or its current lease
arrangement that unequivocally confirms that Sheen was and is the owner of the antenna; and this
begs asking why Ely has not (to this day) sought to amend the Asset Purchase Agreement with
Sheen to clarify ownership of, and responsibility for, antenna structure number 1005854.
at 7611–12, para. 9.
32 To the extent Sheen and Ely continue to argue whether the antenna structure was included in the Asset Purchase
Agreement, that dispute is more appropriate for a local court to decide. On this point, the Bureau’s decision is
consistent with the Commission’s longstanding policy of declining to adjudicate private contract law questions for
which a forum exists in state courts. See Listener’s Guild, Inc. v. FCC
, 813 F.2d 465, 469 (D.C. Cir. 1987) (noting
with approval the Commission’s “long-standing policy of refusing to adjudicate private contract law questions for
which a forum exists in the state courts”); Algreg Cellular Engineering
, etc., Decision, 9 FCC Rcd 5098, at para. 46
(Rev. Bd. 1994) (“Another fallacy . . . is the notion that the Commission is constrained to apply the laws of the
various states in performing the enforcement of its licensing rules. It is well-established that while the Commission
will look to state law, where appropriate, it must ultimately decide cases on the basis of its own federal policies and
regulations.”). See also Assignment of Call Sign WPFX961, From Elaine Hough, Assignor, to Chadmoore Wireless
Group, Inc., Assignee
, Order, 18 FCC Rcd 1875, 1877, para. 7 & n.14 (WTB 2003) (citing cases in support of
general Commission policy of deferring resolution of private, contract matters to local courts).
33 Under Part 17 of the Rules, both antenna structure owners and licensees are responsible for maintaining the
prescribed structure painting and/or lighting of antenna structures. See Streamlining the Commission’s Antenna
Structure Clearance Procedures and Revision of Part 17 of the Commission’s Rules Concerning Construction,
Marking, and Lighting of Antenna Structures
, Report and Order, 11 FCC Rcd 4272, 4294, paras. 52–53 (1995)
(Antenna Structure Streamlining Report and Order
) (emphasis added). See also
47 C.F.R. 17.6 (Responsibility of
Commission Licensees and Permittees); 47 C.F.R. 73.1213(b) (“In the event of default by the owner, each licensee
or permittee shall be responsible for ensuring that the structure complies with applicable painting and lighting
Federal Communications Commission
using the antenna structure; (2) Ely had access to and control over the lighting on the antenna structure;
(3) it was Ely’s station personnel (by their own admission) that improperly extinguished the antenna
lights that resulted in the violation of the Act and the Rules; and (4) Ely knew that Sheen remained
adamant that the Asset Purchase Agreement included the sale of the antenna structure and had not been
involved in the maintenance of the antenna structure since the sale of the station.34 Based on the
foregoing, we affirm the Bureau’s MO&O
and, therefore, find Ely liable for a monetary forfeiture in the
amount of $11,000 for repeatedly violating Section 303(q) of the Act and the relevant Part 17 Rules.35
IT IS ORDERED
that, pursuant to Section 1.115 of the Commission’s
Rules,36 the Application for Review filed by Ely Radio, LLC,
and the Bureau’s
Memorandum Opinion and Order
IT IS ALSO ORDERED
that, pursuant to Section 503(b) of the Act, and Sections 0.111,
0.311, and 1.80(f)(4) of the Rules, Ely Radio, LLC,
IS LIABLE FOR A MONETARY FORFEITURE
in the amount of eleven thousand dollars ($11,000) for violations of Section 303(q) of the Act and
Sections 17.47(a), 17.48, 17.51(a), and 17.57 of the Rules.37
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
Rules immediately and no later than thirty (30) calendar days after the release date of this Order on
Review.38 On March 11, 2013, the United States filed a complaint in federal district court against Ely
Radio, LLC, for recovery of the $11,000 monetary forfeiture penalty, in U.S. v. Ely Radio, LLC
, Civ. No.
13-00405 (D. Nev.). Pending court approval of a request from the United States, the court case will be
held in abeyance until resolution of this administrative proceeding. If timely payment of the forfeiture is
received, the government will dismiss the district court case. Ely Radio, LLC, shall send electronic
notification of payment to WR-Response@fcc.gov
and to Carlos A. Gonzalez, Assistant United States
Attorney, at email@example.com
, on the date said payment is made.
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.39 When completing the
(Continued from previous page)
requirements.”). This shared responsibility is intended to ensure that prescribed structure painting and/or lighting is
maintained at all times, and that lighting outages will be promptly rectified, given compelling public safety
concerns. Further, as the Commission has stated, “if the owner cannot be reached or reliance on the owner to
maintain prescribed structure painting and/or lighting proves to be ineffective, we [will] then turn to the individual
tenant licensees as the entities to bear secondary responsibility for the structure’s proper maintenance.” Antenna
Structure Streamlining Report and Order
, 11 FCC Rcd at 4293, para. 50.
34 See MO&O
, 27 FCC Rcd at 7608–14, paras. 1–11.
47 U.S.C. § 303(q); 47 C.F.R. §§ 17.47(a), 17.48, 17.51(a), 17.57.
36 47 C.F.R. § 1.115.
37 47 U.S.C. §§ 303(q), 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4), 17.47(a), 17.48, 17.51(a), 17.57.
38 47 C.F.R. § 1.80.
39 An FCC Form 159 and detailed instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf
Federal Communications Commission
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
IT IS FURTHER ORDERED
that this Order on Review shall be sent by both First
Class Mail and Certified Mail, Return Receipt Requested, to Ely Radio, LLC, 5010 Spencer, Las Vegas,
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch