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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Pittman Broadcasting Services, L.L.C. )
File Number EB-07-OR-002
Licensee of Station KVOL-AM )
NAL/Acct. No. 200732620002
Lafayette, LA )
FRN 0009020538
ASR No. 1025872 )
Facility ID No. 9415 )
)
FORFEITURE ORDER
Adopted: February 19, 2008 Released: February 21, 2008
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand hundred dollars ($10,000) to Pittman
Broadcasting Services, L.L.C. ("Pittman"), licensee of station
KVOL-AM, in Lafayette, LA and owner of antenna structure #1025872, for
repeated violation of Sections 17.51(a) and 73.1745 of the
Commission's Rules ("Rules"). The noted violations involve Pittman's
failure to exhibit its structure's red obstruction lighting from
sunset to sunrise and operation overpower during nighttime hours.
II. BACKGROUND
2. Pittman is the registered owner of antenna structure #1025872. The
Antenna Structure Registration ("ASR") specifies that the structure
must be painted and lit.
3. On January 17 and 18, 2007, agents from the Commission's New Orleans
Office of the Enforcement Bureau ("New Orleans Office") observed
antenna structure #1025872 after sunset with a top beacon
extinguished. The agents confirmed that no Notice to Airmen ("NOTAM")
regarding the lighting outage had been issued.
4. On January 17, 2007, agents from the New Orleans Office monitored
station KVOL-AM's signal and noted the transmitter power increase
approximately 12 dB at 6:05 PM CST. On January 18, 2007, the agents
again monitored the station and observed the same increase in
transmitter power at approximately 6:02 PM CST.
5. On January 19, 2007, agents from the New Orleans Office inspected the
main studio of station KVOL-AM. The station's Chief Engineer was
unaware that the top beacon on the antenna structure was extinguished.
After the agents so informed him, he contacted the FAA. Although the
station had installed an automatic alarm system, the Chief Engineer
explained his ignorance of the outage by surmising that either the
person responsible for reading the system did not know how to read it
or the system was broken. After checking the station transmitter, the
Chief Engineer stated that the transmitter was programmed incorrectly
and was mistaking AM for PM. He stated that the transmitter's
uninterruptible power supply was not functioning, which may have
prevented the unit from remembering the correct time. Accordingly, the
station was incorrectly programmed to transmit overpower at night with
daytime power. The Chief Engineer stated neither he nor station staff
were aware of this, prior to the inspection.
6. On April 6, 2007, the New Orleans Office issued a Notice of Apparent
Liability for Forfeiture to Pittman in the amount of fourteen thousand
dollars ($14,000), for the apparent repeated violation of Sections
17.51(a) and 73.1745 of the Rules. Pittman submitted a response to the
NAL requesting a reduction or cancellation of the proposed forfeiture.
III. DISCUSSION
7. The proposed forfeiture amounts in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934, as
amended ("Act"), Section 1.80 of the Rules, and The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules
to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997),
recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement").
In examining Pittman's response, Section 503(b) 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. Section 17.51(a) of the Rules states that all red obstruction lighting
shall be exhibited from sunset to sunrise unless otherwise specified.
On January 17 and 18, 2007, agents from the New Orleans Office
observed that the top red beacon on antenna structure #1025872 was
extinguished after sunset. Despite having an automatic alarm system,
Pittman staff was unaware that the light was extinguished prior to the
inspection on January 19, 2007. Pittman did not notify the FAA of the
lighting outage until January 19, 2007. Thus, based on the evidence
before us, we find that Pittman repeatedly violated Section 17.51(a)
of the Rules by failing to exhibit required obstruction lighting.
9. Section 73.1745 of the Rules states that no broadcast station shall
operate at times, or with modes of power, other than those specified
and made a part of the license. Station KVOL-AM is authorized to
operate at 5,000 watts during the day and 1,000 watts at night. On
January 17 and 18, 2007, agents from the New Orleans Office observed
station KVOL-AM's transmitting power increase at approximately 6 PM
CST. On January 19, 2007, the station's Chief Engineer confirmed that
the station's transmitter had been programmed incorrectly and was
operating with daytime power at night. Thus, based on the evidence
before us, we find that Pittman repeatedly violated Section 73.1745
of the Rules by operating overpower at night.
10. Pittman's response to the NAL does not dispute either of the
violations. Pittman asserts that both problems have been fixed.
Pittman claims that the tower lighting violation was short-term in
nature and that procedures have been put in place to monitor the
structure's lights. Pittman also states that the station's transmitter
was programmed properly on December 26, 2006 and that it must have
been tampered with or malfunctioned, without the licensee's knowledge,
after that day. Pittman, however, has not raised any issues that
contradict the repeated nature of the violations. The Commission may
issue forfeitures for willful and/or repeated violations. The NAL
found apparent repeated violations and proposed forfeitures at the
base forfeiture amounts for the violations. As the repeated nature of
the violations is not in question, we find Pittman has provided no
grounds upon which to reduce or cancel the forfeiture. Moreover,
corrective action taken to come into compliance with the Rules is
expected, and does not nullify or mitigate any prior forfeitures or
violations.
11. Finally, Pittman states that payment of the forfeiture would pose an
undue financial hardship. The Commission has determined that, in
general, an entity's gross revenues are the best indicator of its
ability to pay a forfeiture. After examining the financial
documentation submitted by Pittman, we agree and reduce the forfeiture
to $10,000 based on its demonstrated inability to pay.
12. We have examined Pittman's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that a reduction of
the proposed forfeiture to $10,000 is warranted, based on demonstrated
inability to pay.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Pittman Broadcasting Services,
L.L.C. IS LIABLE FOR A MONETARY FORFEITURE in the amount of ten
thousand dollars ($10,000) for violation of Sections 17.51(a) and
73.1745 of the Rules.
14. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment[s] by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Pittman
Broadcasting Services, L.L.C. at its address of record and to its
counsel, Dan J. Alpert, 2120 North 21st Road, Arlington, VA 22201.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 17.51(a) and 73.1745.
The agents contacted the Federal Aviation Administration ("FAA") on
January 17, 2007 about the outage, but the FAA would not issue a NOTAM at
that time, because the agents were not the owner of the structure.
Local sunset on this date was 5:30 PM.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732620002
(Enf. Bur., New Orleans Office, April 6, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 17.51(a).
Section 17.48 of the Rules requires tower owners to notify the nearest
Flight Service Station or office of the FAA immediately of a lighting
outage that requires more than 30 minutes to correct. 47 C.F.R. S: 17.48.
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
47 C.F.R. S: 73.1745.
See 47 U.S.C. S: 503(b).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
gross revenues).
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4), 17.51(a),
73.1745.
Federal Communications Commission DA 08-432
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Federal Communications Commission DA 08-432