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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Long Pond Baptist Church File Number EB-05-TP-235
)
Licensee of FM Radio Station WTBH NAL/Acct. No.
) 200632700003
And Owner of Antenna Structure
) FRN: 0006149397
ASR # 1204141
)
Chiefland, Florida
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 1, 2006
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Long Pond Baptist Church ("Long Pond"), licensee of radio station
WTBH (FM) and owner of antenna structure 1204141, both located in
Chiefland, Florida, apparently willfully and repeatedly violated
Section 17.50 of the Commission's Rules ("Rules") by failing to clean
and repaint its antenna structure as often as necessary to maintain
good visibility. In addition, we find that Long Pond willfully
violated Section 73.3527 of the Rules by failing to maintain for
public inspection the complete required contents of the station's
public inspection file. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Long Pond is
apparently liable for a forfeiture in the amount of fourteen thousand
dollars ($14,000).
II. BACKGROUND
2. On September 13, 2005, agents of the Enforcement Bureau's Tampa Office
conducted an inspection of antenna structure 1204141. The agents
observed that the orange paint on the tower was badly faded and
chipped away, revealing significant amounts of the bare tower. The
faded orange paint on the uppermost bands was so grey that the orange
bands were indistinguishable from the adjacent white bands. The
Antenna Structure Registration ("ASR") for this tower requires that
the tower be painted and lighted in accordance with FAA Chapters 1, 3,
11, and 21 in FAA Circular Number 70/7460-1J. Chapter 3 provides that
antenna structures shall display alternate bands of aviation orange
and white paint, that the bands be equal in width, and approximately
one-seventh the height of the structure for towers 700 feet or less.
3. On September 19, 2005, the agents conducted a follow-up inspection of
Long Pond's facilities and antenna structure 1204141 and observed that
the condition of the tower paint was the same as it was during the
September 13, 2005 inspection. The agents spoke to the General Manager
and owner of WTBH and asked him when the tower was last painted. The
General Manager stated it had been five or six years since the tower
was painted but that it was supposed to be painted the week before.
The General Manager could not provide any invoices, paperwork, or
contact information to support his statement showing that he had
previously arranged to have the tower painted. The agents requested to
inspect station WTBH's public inspection file. The General Manager was
unable to make available the station's service contour map, political
file, the public and broadcasting manual, donor lists, and the local
public notice announcements.
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. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. Section 17.50 of the Rules states that antenna structures requiring
painting shall be cleaned or repainted as often as necessary to
maintain good visibility. The registration for antenna structure
1204141 specifically requires that the tower be painted with alternate
bands of aviation orange and white paint and that the bands be equal
in width and approximately one-seventh the height of the structure for
towers 700 feet or less. At the time of inspections, the agents
observed that the orange paint on the tower was so badly faded and
chipped that the orange bands were indistinguishable from the adjacent
white bands, thus diminishing the overall visibility of the tower.
6. Section 73.3527(a) of the Rules requires noncommercial educational
broadcast stations to maintain for public inspection, a file
containing materials listed in that section. The public inspection
file is to be maintained at the main studio of the station and be
available for public inspection during regular business hours. On
September 19, 2005, during regular business hours, the General
Manager of station WTBH was unable to make available upon request the
following required items: the station's service contour map, political
file, the public and broadcasting manual, donor lists, or local public
notice announcements.
7. Based on the evidence before us, we find that Long Pond apparently
willfully and repeatedly violated Section 17.50 of the Rules by
failing to clean and repaint its antenna structure as often as
necessary to maintain good visibility. We also find that Long Pond
apparently willfully violation Section 73.3527 by failing to maintain
for inspection the complete public inspection file
8. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for failing to comply with prescribed antenna
structure marking is $10,000, and failure to maintain items in the
public inspection file 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)(D) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as justice
may require. Regarding the public inspection file violation in this
case, Long Pond did maintain an incomplete file although that file was
missing several required items. Therefore, we believe that a
forfeiture in the amount of $4,000 for the public inspection file
violation is appropriate in this case. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Long Pond is apparently liable for a $14,000
forfeiture.
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, 0.311,
0.314 and 1.80 of the Commission's Rules, Long Pond Baptist Church is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fourteen thousand dollars ($14,000) for violation of
Sections 17.50, and 73.3527 of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Long Pond Baptist Church
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
11. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Tampa Office,
Suite 1215, 2203 N. Lois Ave., Tampa, Florida 33607 and must include
the NAL/Acct. No. referenced in the caption.
13. 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 practices ("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.
14. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.^8
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Long Pond Baptist Church at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 C.F.R. S 17.50.
47 C.F.R. S 73.3527.
47 U.S.C. S 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
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."
47 C.F.R. S 73.3527(a).
See 47 C.F.R. S 73.3527(b).
See 47 C.F.R. S 73.3527(c)(1).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 17.50,
73.3527.
^8See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
4
Federal Communications Commission