Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554


                                             )                               
                                                                             
     In the Matter of                        )                               
                                                                             
     The King's Musician Educational         )                               
     Foundation, Inc.                            File Number EB-09-HU-0046   
                                             )                               
     Owner of Antenna Structure                  NAL/Acct. No. 200932540004  
                                             )                               
     ASR # 1249922                               FRN 0013945555              
                                             )                               
     Fannett, Texas                                                          
                                             )                               
                                                                             
                                             )                               


                                FORFEITURE ORDER

   Adopted: October 13, 2009 Released: October 15, 2009

   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 one thousand five hundred dollars ($1,500) to The King's
       Musician Educational Foundation, Inc. ("Foundation, Inc."), owner of
       antenna structure number 1249922, in Fannett, Texas, for willful and
       repeated violation of Sections 17.4(g) and 17.51(b)  of the
       Commission's Rules ("Rules"). The noted violations involve Foundation,
       Inc.'s failure to display the Antenna Structure Registration ("ASR")
       number in a conspicuous place so that it is readily visible near the
       base of the antenna structure and its failure to exhibit all medium
       intensity obstruction lighting as specified.

   II. BACKGROUND

    2. On May 13, 2009, an agent from the Commission's Houston Office of the
       Enforcement Bureau ("Houston Office") inspected antenna structure
       number 1249922. The top daytime medium intensity obstruction lighting
       was not working at the time of the inspection. Additionally, the ASR
       number was not displayed anywhere near the antenna structure base. The
       agent confirmed on May 16, 2009 that the Federal Aviation
       Administration ("FAA") had not been informed of the outage.

    3. On May 18, 2009, an agent with the Houston Office contacted the
       President of Foundation, Inc., who stated that the top daytime medium
       intensity obstruction light had been out for two months, that they had
       not notified the FAA of the outage, and that the FAA had not issued a
       Notice to Airmen ("NOTAM") regarding the antenna structure. He also
       confirmed that the ASR number was not posted for the antenna
       structure. The FAA issued a NOTAM regarding the antenna structure on
       May 18, 2009.

    4. On September 3, 2009, the Houston Office issued a Notice of Apparent
       Liability for Forfeiture to Foundation, Inc. in the amount of twelve
       thousand dollars ($12,000), for the apparent willful and repeated
       violation of Sections 17.4(g) and 17.51(b)  of the Rules. Foundation,
       Inc. submitted a response to the NAL requesting a reduction or
       cancellation of the proposed forfeiture.

   III. DISCUSSION

    5. The proposed forfeiture amount 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 Foundation Inc.'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.

    6. Section 17.4(g) of the Rules requires that the ASR number be displayed
       in a conspicuous place so that it is readily visible near the base of
       the antenna structure. On May 10, 2009, an agent from the Houston
       Office observed that the ASR number for antenna structure number
       1249922 was not posted anywhere near the base of the structure. On May
       18, 2009, the President of Foundation, Inc. admitted that the ASR
       number was not posted for antenna structure number 1249922. In its
       response to the NAL, Foundation, Inc. did not dispute any of the facts
       surrounding its failure to post the ASR number near the base of its
       antenna structure. Thus, based on the evidence before us, we find that
       Foundation, Inc. willfully and repeatedly violated Section 17.4(g) of
       the Rules by failing to post the ASR number near the base of antenna
       structure number 1249922 on May 10 and 18, 2009.

    7. Section 17.51(b) of the Rules requires that all medium intensity
       obstruction lighting be exhibited as specified. Antenna structure
       number 1249922 is required to have a dual lighting system exhibiting
       red obstruction lights at nighttime and medium intensity obstruction
       lighting during the daytime. On May 10, 2009, an agent from the
       Houston Office observed the top medium intensity obstruction light on
       antenna structure number 1249922 was not functioning during the day.
       On May 16, 2009, the agent confirmed that the FAA had not issued a
       NOTAM regarding the antenna structure. On May 18, 2009, the President
       of Foundation, Inc. stated the daytime top medium intensity
       obstruction light on antenna structure number 1249922 had been out for
       two months and that Foundation, Inc. had not notified the FAA
       regarding the outage.

    8. In response to the NAL, Foundation, Inc. does not deny the lighting
       violation. However, Foundation, Inc. clarifies that, subsequent to the
       conversation on May 18, 2009, the President of Foundation, Inc. was
       informed by his Vice-President that Foundation, Inc. did not become
       aware of the lighting outage until the beginning of May 2009. Thus,
       based on the evidence before us, we find that Foundation, Inc.
       willfully and repeatedly violated Section 17.51(b) of the Rules by
       failing to exhibit all medium intensity obstruction lighting as
       specified, between May 10 and 18, 2009.

    9. Foundation, Inc. requests a reduction of the forfeiture associated
       with the tower lighting violation based on its corrective actions
       taken prior to the Commission notification. Foundation, Inc. states
       that soon after it discovered the outage, and prior to the Commission
       notification, it contacted the engineer who originally assisted with
       the tower construction to request that he come back out to the tower
       to diagnose the problem. The engineer, however, informed Foundation,
       Inc. that he was not available for at least three weeks. Foundation,
       Inc. says that it began attempts to find another tower company to
       climb the tower but was unsuccessful prior to the inspection.
       Foundation Inc. seeks a reduction based on its pre-notification
       efforts, citing Texas Educational Broadcasting Co-operative, Inc. and
       Max Media of Montana.

   10. By its own admission, Foundation, Inc. was aware of the lighting
       outage at the beginning of May 2009 and yet failed to notify the FAA
       of the outage prior to the Commission notification on May 18, 2009. In
       light of its willful failure to notify the FAA of the outage, we find
       that its efforts to contact a contractor to diagnose and repair the
       problem prior to notification of the outage by the Commission's agent
       did not constitute a good faith effort to comply with the rules and do
       not justify a reduction in forfeiture. Moreover, the cases cited by
       Foundation, Inc. are not persuasive precedent, because the violators
       in the two cited case remedied the violations prior to Commission
       involvement. In Texas Educational Broadcasting Co-operative, Inc, the
       licensee corrected its violation of the alien ownership rules by
       reducing the number of foreign nationals serving on its board of
       directors prior to submitting its renewal application. Thus, by the
       time the Commission became aware of the violation, the licensee was no
       longer in violation of the rules. Similarly, in Max Media of Montana,
       the tower owner restored the tower lights prior to being contacted by
       the Commission about the outage. In this case, Foundation, Inc. did
       not notify the FAA about the lighting outage until after being
       contacted by the Commission.

   11. Finally, Foundation, Inc. requests a reduction of the forfeiture,
       based on its inability to pay and its history of compliance with the
       rules. With regard to an individual's or entity's inability to pay,
       the Commission has determined that, in general, gross revenues are the
       best indicator of an ability to pay a forfeiture. We have reviewed our
       records and Foundation, Inc.'s documentation and conclude that the
       forfeiture should be reduced to $1,500, based on Foundation Inc.'s
       history of compliance with the rules and its documented inability to
       pay the forfeiture.

   12. We have examined Foundation Inc.'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 reduce the proposed
       forfeiture to $1,500, based on Foundation Inc's history of compliance
       with the rules and 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, The King's Musician Educational
       Foundation, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
       one thousand five hundred dollars ($1,500) for violations of Sections
       17.4(g) and 17.51(b) of the Rules.

   14. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within 30 days of the release of this Order.
       If the forfeiture is not paid within the period specified, the case
       may be referred to the Department of Justice for collection pursuant
       to Section 504(a) of the Act. 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 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.
       Foundation, Inc. will also send electronic notification on the date
       said payment is made to SCR-Response@fcc.gov.

   15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail Return Receipt Requested to The King's
       Musician Educational Foundation, Inc. at its address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   47 C.F.R. S: 17.4(g) and 17.51(b).

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932540004
   (Enf. Bur., Houston Office, September 3, 2009) ("NAL").

   47 U.S.C. S: 503(b).

   47 C.F.R. S: 1.80.

   47 U.S.C. S: 503(b)(2)(E).

   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).

   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).

   Memorandum Opinion and Order and Notice of Apparent Liability, 22 FCC Rcd
   13038 (MB 2002).

   Forfeiture Order, 18 FCC Rcd 21375 (EB 2003).

   See 47 C.F.R. S: 17.48 (owners shall report immediately to the FAA any
   observed or known extinguishment or improper functioning of any top steady
   burning light not corrected within 30 minutes).

   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), 17.4(g),
   17.51(b).

   47 U.S.C. S: 504(a).

   Federal Communications Commission DA 09-2213

   2

   Federal Communications Commission DA 09-2213