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 )
Ely Radio, LLC ) File Number: EB-08-SF-0039
Antenna Structure Owner ) NAL/Acct. No.: 200932960001
Winnemucca, NV ) FRN: 0014848899
ASR # 1005854 )
)
FORFEITURE ORDER
Adopted: October 28, 2009 Released: October 30, 2009
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eleven thousand ($11,000) to Ely Radio LLC, ("Ely")
owner of antenna structure number 1005854, in Winnemucca, Nevada, for
repeated violation of Section 303(q) of the Communications Act of
1934, as amended, ("Act"), and Sections 17.51(a), 17.47(a), 17.48, and
17.57 of the Commission's Rules ("Rules"). On October 31, 2008, the
Enforcement Bureau's San Francisco Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") to Ely in the amount of $13,000 after
determining that Ely apparently repeatedly failed to comply with the
antenna structure registration ("ASR") lighting, monitoring, record
keeping, and notification requirements specified for antenna structure
number 1005854. In this Order, we consider Ely's arguments that it is
not the owner of antenna structure number 1005854, and therefore it
did not violate any of the rules listed above. We also consider Ely's
claim that it has a history of compliance with the Commission's Rules.
II. BACKGROUND
2. Antenna structure number 1005854 is an antenna tower of 61.8 meters
(202.7 feet) in height above ground. According to the antenna
structure registration ("ASR") for antenna structure 1005854, the
structure is required to be painted and lit in accordance with
specific Chapters of the FAA Advisory Circular for Obstruction Marking
and Lighting. Specifically, the structure is required to be painted,
and have, at its top, a flashing beacon equipped with two lamps and
red filters, along with at least two lamps enclosed in red obstruction
light globes located on a level at approximately one-half the overall
height of the tower. The lights on antenna structure number 1005854
are required to burn continuously or be controlled by a light
sensitive device.
3. On March 11, 2008, in response to a complaint that the red beacon
lighting on the antenna structure used to broadcast KWNA(AM) was out,
a San Francisco agent determined that the structure was antenna
structure number 1005854, registered to Sheen Broadcasting Company.
The agent then contacted the Federal Aviation Administration ("FAA")
Flight Service Station to determine if the tower light outage had been
reported and if a Notice to Airmen ("NOTAM") had been issued for the
structure. The FAA reported that there were no NOTAMs on file for
antenna structure number 1005854 and advised that they would issue a
NOTAM for the structure. The San Francisco agent then contacted the
Winnemucca Police department and asked them to make an observation of
antenna structure 1005854. At approximately 9:00 p.m. PDT, a
Winnemucca Police officer drove to antenna structure 1005854 and
observed no lights illuminated on the antenna structure.
4. On March 12, 2008, a San Francisco agent inspected antenna structure
number 1005854, located at 5130 Weikel Drive in Winnemucca, Nevada.
The agent observed that at 8:10 p.m. PDT, no lights were illuminated
on antenna structure number 1005854.
5. On March 13, 2008, the San Francisco agent inspected station KWNA(AM)
at the KWNA(AM) transmitter address of 5130 Weikel Drive, in
Winnemucca, Nevada, and the KWNA(AM) studio address of 355 West Fourth
Street, Winnemucca. The San Francisco agent interviewed the owner of
Ely and the general manager and the programming director of KWNA(AM).
The Ely and KWNA(AM) management told the San Francisco agent that for
about the past two months, when the flasher beacon rotated, there was
noise getting into the audio of the KWNA(AM), so they shut off the
lights on antenna structure number 1005854. They further told the San
Francisco agent that they were unable to determine if this was a
grounding problem or antenna tuning problem, so they kept the antenna
structure lights off until they could fix the problem. Ely's owner
stated that he spoke to the FAA a year ago and notified the FAA over
the past two months about the outage, but did not make any entries in
the station log to memorialize this. Ely's owner also stated that he
believed that antenna structure number 1005854 was less than 200 feet
in height and that the airport does not have a control tower. Ely's
owner further stated that he wanted to move the antenna structure to a
new location. The KWNA(AM) programming director was also contacted by
the owner of the previous licensee of KWNA(AM), Sheen Broadcasting
Company ("Sheen"), about the light outage on the antenna structure.
Ely and KWNA(AM) management also told the San Francisco agent that Ely
leases the land, building and tower from Sheen; that there is no
agreement between the two parties concerning who monitors the lights;
and that they believe that the lights work by photocell. The KWNA(AM)
management also stated that they did not notify Sheen when they turned
the lights off on antenna structure number 1005854.
6. Later on March 13, 2008, the San Francisco agent interviewed Sheen.
Sheen stated that he had received several complaints about the
lighting on antenna structure number 1005854 being out during the
previous six to nine months and that he was aware that there was
heliport less than a mile from the antenna structure. Sheen also
stated that he rents the land and transmitter building to Ely for
KWNA(AM), but that all of the assets and equipment to operate
KWNA(AM), including antenna structure number 1005854, were sold to Ely
as of December 1, 2006.
7. Still on March 13, 2008, at 7:30 p.m. PDT, the San Francisco agent met
with the KWNA(AM) general manager at the KWNA(AM) transmitter site.
The lights on the antenna structure were not functioning. The KWNA(AM)
general manager switched on the power to antenna structure number
1005854, and the San Francisco agent observed that the lights on the
antenna structure were functioning. As no noise was heard in the
KMNA(AM) audio, the general manager left the lights on the structure
on.
8. On March 17, 2008, Sheen faxed to the San Francisco agent a copy of
the Asset Purchase Agreement by and between Sheen Broadcasting Co.,
Seller, and Ely Radio LLC, Buyer, for the sale and purchase of
stations KWNA AM and FM, Winnemucca, Nevada ("Sales Agreement").
Section 2 of the Sales Agreement states that the "Seller will sell,
assign, transfer, convey and deliver to buyer . . . [a]ll tangible
personal property and fixtures owned by Seller used or useful in the
operation of the station." Section 2.4 and Section 2.5 of the Sales
Agreement detail the real property lease and [a] lease on the building
owned by the Seller which is used as the Station's studios and offices
. . . ." Section 3 of the Sales Agreement details the "Excluded
Assets" and antenna structure number 1005854 is not listed.
9. On June 26, 2008, the San Francisco Office issued Letters of Inquiry
to both Ely and Sheen asking each if they were the owner of antenna
structure number 1005854 and if they were aware of the registration,
painting and lighting requirement for antenna structure 1005854. In
their responses, both Ely and Sheen denied ownership of antenna
structure number 1005854. Ely stated that the Sales Agreement "did not
include the transmitter site or tower" and that Ely intended to
relocate the station to a new transmitter site with a "shorter .-wave
tower." Ely also stated that it has paid rental checks to Sheen every
month and that Sheen remains the owner of the tower and transmitter
site used by KWNA(AM). Ely further stated that the owner of Sheen
Broadcasting Company continues to occupy the residence on the
transmitter site; that "it made sense for him to retain responsibility
and for observing and ensuring compliance with the FAA and FCC
lighting and other tower requirements;" that the light switches are on
his property; and that Mr. Sheen "never brought to [Ely's] attention
that that the tower was not lit properly." Sheen responded to the
Letter of Inquiry stating that Sheen had sold all of its business
assets and equipment to operate KWNA(AM) and KWNA-FM to Ely as of
December 1, 2006; that Sheen Broadcasting Company ceased to exist on
January 1, 2007; and that Sheen "is leasing a building and ground to
[Ely] for the AM transmitter and the tower in question."
10. On October 31, 2008, the San Francisco Office issued a NAL in the
amount of $13,000 to Ely. In the NAL, the San Francisco Office found
that Ely apparently repeatedly violated Section 303(q) of the
Communications Act of 1934, as amended, ("Act"), and Section 17.51(a)
of the Rules by failing to exhibit the structure's red obstruction
lighting from sunset to sunrise; and by failing to make observations
of the antenna structure's lights at least once each 24 hours either
visually or by observing an automatic properly maintained indicator
designed to register any failure of such lights, a violation of
Section 17.47(a) of the Rules. 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 ("FAA") of the
outage of the flashing obstruction lights, a violation of Section
17.48 of the Rules. 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,
a violation of section 17.57. Ely filed a response ("Response") on
December 1, 2008, arguing that it is not the owner of antenna
structure 1005854, and that it has a history of compliance with the
Commission's Rules.
III. DISCUSSION
11. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the 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. In examining
the 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.
12. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Section 17.51 of the Rules states that all red
obstruction lighting shall be exhibited from sunset to sunrise unless
otherwise specified. According to its ASR record, antenna structure
number 1005854 is required to have, at its top, a flashing beacon
equipped with two lamps and red filters, along with at least two lamps
enclosed in red obstruction light globes located on a level at
approximately one-half the overall height of the tower. Section
17.47(a) requires that the owner of any antenna structure which is
registered with the Commission and has been assigned lighting
specifications shall make an observation of the antenna structure's
lights at least once each 24 hours either visually or by observing an
automatic properly maintained indicator designed to register any
failure. Section 17.48 of the Rules requires the owner of an antenna
structure to report immediately by telephone or telegraph to the
nearest Flight Service Station or office of the FAA any observed or
otherwise known extinguishment or improper functioning or any top
steady burning light or any flashing obstruction light, regardless of
its position on the antenna structure, not corrected within 30
minutes. Section 17.57 of the Rules requires the owner of an antenna
structure to immediately notify the Commission, using FCC Form 854,
upon any change in structure height or change in ownership
information.
13. On March 11, 2008, a San Francisco agent, in response to complaints
concerning lighting outages on antenna structure number 1005458,
contacted the FAA Flight Service Station and found that Ely had not
reported the outage, thus, requiring the San Francisco agent to
request the issuance of a NOTAM. On March 12, 2008, and March 13,
2008, a San Francisco agent observed antenna structure number 1005854
after sunset and found that the lights were extinguished. In an
interview with Ely and KWNA(AM) management, the San Francisco agent
was advised that the lights on antenna structure number 1005854 had
been turned off by KWNA(AM) personnel because of noise that was being
made by the lighting mechanism. In the NAL, the San Francisco Office
determined that this indicated that Ely and KWNA(AM) personnel had
control over antenna structure 1005854 and its lighting, as evidenced
by their ability to switch the lighting on and off to conform to their
operation of KWNA(AM) and use of antenna structure number 1005854 for
the operation of KWNA(AM). The San Francisco Office also determined
that although Ely argued that it is not the owner of antenna structure
number 1005854, and that it leases the antenna structure from Sheen,
the former licensee of KWNA(AM), the preponderance of the evidence
suggests otherwise. Specifically, the San Francisco Office determined
that in the Sales Agreement, Sheen conveyed to Ely "[a]ll tangible
personal property and fixtures owned by Seller used or useful in the
operation of the station." The San Francisco Office also determined
that, "[a]s Ely continues to use antenna structure number 1005854 to
broadcast KWNA(AM), there is no doubt that the structure, whether it
is considered a fixture or personal property, is used or is useful in
the operation of KWNA(AM). Additionally, the lease in question,
according to the Sales Agreement, covers only the real property of the
transmitter site and the building used for the KWNA(AM) studios and
offices."
14. In its Response, Ely argues that it is not the owner of antenna
structure number 1005854 and that the San Francisco Office ignored the
sworn testimony of Ely's managing member, in its response to the LOI,
in which the managing member "demonstrated that the tower remained
under the proper licensee's Ownership." We find that the San Francisco
Office did not disregard the LOI response, or the statement from Ely's
managing member. In his statement, the managing member stated that he
paid monthly rental checks to Sheen Rentals and that he "assumed that
either Sheen Broadcasting Company, or perhaps an affiliate under Mr.
Sheen's control, remains the owner of the tower and the transmitter
site used by KWNA." Contrary to Ely's contention in its Response, this
is not undisputed evidence. As detailed above, and in the NAL, Mr.
Sheen specifically stated to the San Francisco Office that Sheen
Broadcasting Company had sold all of its business assets and equipment
to operate KWNA(AM) and KWNA-FM to Ely as of December 1, 2006; that
Sheen Broadcasting Company ceased to exist on January 1, 2007; and
that Sheen "is leasing a building and ground to [Ely] for the AM
transmitter and the tower in question." It is precisely because of
this disparity between the statements from Mr. Sheen and Ely that the
San Francisco Office looked to the written Sales Agreement between the
two parties.
15. Ely argues that the San Francisco Office mistakenly determined that
real property was being conveyed and argues that "nothing in these
relevant provisions of the Sales Agreement suggests a transfer of
title to the real estate or the tower located on it." We find that the
San Francisco Office did not determine that real property had been
conveyed or that title to the real estate had transferred. In
reviewing the Sales Agreement, we find that the San Francisco Office
did determine, correctly, that antenna structure number 1005458 had
been sold to Ely. Specifically, as described above and in the NAL,
"Section 2 of the Sales Agreement states that the `Seller will sell,
assign, transfer, convey and deliver to buyer . . . [a]ll tangible
personal property and fixtures owned by Seller used or useful in the
operation of the station.' Section 2.4 and Section 2.5 of the Sales
Agreement detail the real property lease and [a] lease on the building
owned by the Seller which is used as the Station's studios and offices
. . . .' Section 3 of the Sales Agreement details the "Excluded
Assets" and antenna structure number 1005854 is not listed."
16. Ely also argues that the San Francisco Office ignored Section 6.8 of
the Sales Agreement which indicates that the "Leases" referenced in
the Sales Agreement cover both the studio/office building and the real
property used in the stations' operation. We disagree. The San
Francisco Office specifically concluded that that lease in question
covered "the real property of the transmitter site and the building
used for the KWNA(AM) studios and offices." This language comes from
Section 6.8 of the Sales Agreement.
17. Ely does not dispute that antenna structure number 1005458 was used
and continues to be used to transmit KWNA(AM), that Ely personnel had
access to and control over the lighting on antenna structure number
1005854, and that Ely personnel extinguished the lights some time
prior to the FCC's inspection due to a noise purportedly caused by the
tower lighting system. Ely acknowledges it had contacted the FAA
previously regarding light outages on antenna structure number
1005854. Ely also proffers no new evidence or information in its
Response that supports its assertion that Sheen retained title to the
tower structure used in the operation of KWNA(AM). Rather, Ely merely
disputes the San Francisco Offices' interpretation and analysis of the
Lease and the Sales Agreement. While jurisdiction to make a definitive
judicial determination as to who owns antenna structure number 1005854
rests with the state and local judicial system in Nevada, we find that
the San Francisco Office reasonably concluded that the preponderance
of the evidence showed that Ely had purchased antenna structure number
1005458. Accordingly, weighing the totality of the evidence presented
by the San Francisco Office in the NAL and Ely's Response, we conclude
that Ely repeatedly violated Sections 17.47(a), 17.48, and 17.51(a) of
the Rules.
18. Ely further argues that it has a history of compliance with the
Commission's Rules. We have reviewed our records and we agree. We
note, however, that one violation detailed in the NAL continues, that
is, Ely has failed to update the antenna structure registration for
antenna structure number 1005458, in violation of Section 17.57 of the
Rules. The forfeiture proposed for this violation is $3,000 and we
therefore decline to reduce the forfeiture amount for this violation.
However, because Ely has a history of compliance with the Commission's
Rules, we will reduce the $10,000 forfeiture amount for the other
violations listed in the NAL to $8,000.
19. We have examined the 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 Ely repeatedly
violated Section 303(q) of the Act, and Sections 17.51(a), 17.47(a),
17.48, and 17.57 of the Rules. Considering the entire record and the
factors listed above, we find that reduction of the proposed $13,000
forfeiture to $11,000 is warranted.
IV. ORDERING CLAUSES
20. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Ely Radio, LLC, IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $11,000 for
repeatedly violating Section 303(q) of the Act, and Sections 17.51(a),
17.47(a), 17.48, and 17.57 of the Rules.
21. 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.
Ely Radio, LLC, shall also send electronic notification on the date
said payment is made to WR-Response@fcc.gov.
22. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Ely Radio,
LLC, at its address of record, and Peter Gutmann, its counsel of
record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S: 303(q).
47 C.F.R. S:S: 17.47(a), 17.48, 17.51(a), 17.57.
FAA Circular Number 70/7460-1J, Chapters 3, 4, 5 and 13.
FAA Circular Number 70/7460-1J, Chapters 3 and 13.
FAA Circular Number 70/7460-1J, Chapters 4, 5 and 13.
FAA Circular Number 70/7460-1J, Appendix 1, Figure 11.
FAA Circular Number 70/7460-1J, Chapters 5 and 13.
The agent noted that unlike the street address listed, the latitude and
longitude data shown on the antenna structure registration for antenna
structure 1005854 did not correspond to its actual location.
According to the U.S. Naval Observatory, sunset in Winnemucca, Nevada,
occurred at 5:55 p.m., PDT, on March 12, 2008.
On March 20, 2008, the KWNA(AM) general manager contacted the San
Francisco Office and stated that they would do visual observations of the
lighting on antenna structure number 1005854.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932960001
(Enf. Bur., Western Region, San Francisco Office, released October 31,
2008).
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
47 C.F.R. S: 17.57.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
FAA Circular Number 70/7460-1J, Chapters 4 and 5.
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
47 C.F.R. S: 17.57.
The San Francisco agent's request to issue a NOTAM was done to protect the
public safety, given that the FAA-mandated lighting on the structure was
not functioning and the antenna structure was therefore a potential hazard
to air navigation. We caution antenna structure owners, however, that it
is incumbent upon them, and not a third party, to notify the FAA of any
extinguishments or malfunctioning lights.
A "fixture" is defined as "[a]n article in the nature of personal property
which has been so annexed to the realty that it is regarded as a part of
the real property . . . . That which is fixed or attached to something
permanently as an appendage, and not removable." Black's Law Dictionary,
West Publishing (Sixth Edition 1990).
NAL at para. 13.
NAL at para 9.
Response at 2.
NAL at para. 8.
NAL at para. 13.
We note that Section 73.1213 of the Commission's Rules states that "[i]n
the event of a default by the owner [of an antenna structure] each
licensee or permittee shall be responsible for ensuring that the structure
complies with applicable painting and lighting requirements." 47 C.F.R. S:
73.1213. See also 47 C.F.R. S: 17.6(a). We also note that Ely appears to
be the only licensee on antenna structure number 1005854.
47 U.S.C. S:S: 303(q), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4),
17.47(a), 17.48, 17.51.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-2305
1
2
Federal Communications Commission DA 09-2305