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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
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Federal Communications Commission DA 09-2213