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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Gray, Jan DBA = KZMX Registrant of Antenna Structure
Registration Number 1063709 Hot Springs, South Dakota ) ) ) ) ) ) ) File
No.: EB-FIELDWR-13-00006467 NAL/Acct. No.: 201432800002 FRN: 0008230559
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 22, 2014 Released: January 22, 2014
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Gray, Jan DBA = KZMX (Mr. Gray), registrant of antenna structure
registration number 1063709 in Hot Springs, South Dakota (Antenna
Structure), apparently willfully and repeatedly violated Section
303(q) of the Communications Act of 1934, as amended (Act), and
Sections 17.48(a) and 17.51(a) of the Commission's rules (Rules),^ by
failing to exhibit required red obstruction lighting on the Antenna
Structure and notify immediately the Federal Aviation Administration
(FAA) of the light outage. We conclude that Mr. Gray is apparently
liable for a forfeiture in the amount of ten thousand dollars
($10,000).
II. BACKGROUND
2. The Antenna Structure is 90.0 meters in height above ground and is
required to be painted and display a red flashing beacon at the top
level and two steady red burning lights at the mid level.^ On January
22 and 23, 2013, an agent from the Enforcement Bureau's Denver Office
(Denver Office) observed that the Antenna Structure was completely
unlit after sunset.^ Later in the evening of January 22, 2013, the
agent from the Denver Office contacted the FAA and learned that no
Notice to Airmen (NOTAM) had been issued for the Antenna Structure.^
On January 31, 2013, the Denver agent was able to make telephone
contact with Mr. Gray, who indicated that he was not aware of the
Antenna Structure's light outage. The Denver agent gave Mr. Gray the
NOTAM number and its expiration information.
3. On February 8, 2013, in response to a request from the Denver Office
to observe the lighting on the Antenna Structure, the Hot Springs,
South Dakota, Police Department confirmed that the lights on the
Antenna Structure were not functioning after sundown on February 7,
2013. Later that day, a Denver agent searched the FAA NOTAM website
and determined that the initial NOTAM, which he had sponsored for the
Antenna Structure, had expired on February 7, 2013, and that Mr. Gray
had not renewed or requested a new NOTAM. The agent requested a new
NOTAM for the Antenna Structure.
4. On February 26, 2013, the Denver Office issued Mr. Gray a Notice of
Violation (NOV) for failing to exhibit red obstruction lighting from
sunset to sunrise and failing to notify the FAA of the light outage.^
On February 28, 2013, Mr. Gray contacted the Denver Office by
telephone to report that the lights on the Antenna Structure were
operational, and had been repaired approximately two weeks earlier. On
March 14, 2013, Mr. Gray submitted a response to the NOV^ stating
that the lighting system repairs for the Antenna Structure were
successful and that "light was restored on February 13, 2013." Mr.
Gray added that the light had continued to function since the February
13, 2013, repairs and that "the matter had been reported to the
National FAA Center."^
III. DISCUSSION
5. 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.^ Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law.^ The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act,^ and
the Commission has so interpreted the term in the Section 503(b)
context.^ The Commission may also assess a forfeiture for violations
that are merely repeated, and not willful.^ The term "repeated" means
the commission or omission of such act more than once or for more than
one day.^
A. Failure to Exhibit Required Red Obstruction Lighting on the Antenna
Structure and Notify the FAA of the Light Outage
6. 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(a) of the Rules states that "[a]ll
red obstruction lighting shall be exhibited from sunset until sunrise
unless otherwise specified."^ Section 17.48(a) of the Rules states
that owners of antenna structures "shall report immediately by
telephone or telegraph to the nearest Flight Service Station or office
of the Federal Aviation Administration any observed or otherwise known
extinguishment or improper functioning of any top steady burning light
or any flashing obstruction light, regardless of its position on the
antenna structure, not corrected within 30 minutes . . . ."^
7. The evidence in this case is sufficient to establish that Mr. Gray
violated Section 303(q) of the Act and Sections 17.48(a) and 17.51(a)
of the Rules. The Antenna Structure is required to display red
obstruction lighting at night.^ On January 22 and 23, 2013, an agent
from the Denver Office inspected the Antenna Structure and observed
that all red obstruction lighting was extinguished after sunset. Mr.
Gray became aware of the light outage on January 31, 2013,^ but did
not notify the FAA of the outage even after the NOTAM, sponsored by a
Denver agent, expired on February 7, 2013, resulting in the agent
sponsoring a second NOTAM. Based on the evidence before us, we find
that Mr. Gray apparently willfully and repeatedly violated Section
303(q) of the Act and Sections 17.48(a) and 17.51(a) of the Rules by
failing to exhibit required red obstruction lighting after sunset and
notify the FAA immediately of a known light outage.
B. Proposed Forfeiture
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to comply
with prescribed lighting 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)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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.^ Applying the Forfeiture Policy Statement, Section 1.80
of the Rules, and the statutory factors to the instant case, we
conclude that Mr. Gray is apparently liable for a total forfeiture in
the amount of $10,000.
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, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Gray, Jan DBA = KZMX
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of Section
303(q) of the Act and Sections 17.48(a) and 17.51(a) of the
Commission's rules.^
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Gray, Jan
DBA = KZMX 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,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Gray, Jan DBA = KZMX shall also send
electronic notification on the date said payment is made to
WR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
12. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554.^ If you have questions
regarding payment procedures, please contact the Financial Operations
Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Denver Office, P.O. Box 25446, DFC Building 1A, One Denver
Federal Center, Lakewood, Colorado, 80225 and include the NAL/Acct.
No. referenced in the caption. Gray, Jan DBA = KZMX also shall e-mail
the written response to WR-Response@fcc.gov.
14. 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 principles (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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and first class mail to Gray, Jan DBA = KZMX at P.O. Box
446, Custer, South Dakota, 57730.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
^ 47 U.S.C. S 303(q); 47 C.F.R. SS 17.48(a), 17.51(a).
^ See Antenna Structure Registration database for antenna structure number
1063709. See also 47 C.F.R. S 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted).
^ Local sunset on January 22 and 23, 2013 was approximately 4:50 P.M.
local time.
^ See 47 C.F.R. S 17.48 (requiring tower owners to notify the FAA
immediately of any known outages of tower lighting lasting more than 30
minutes). The agent informed the FAA of the light outage and the FAA
issued a NOTAM for the Antenna Structure on January 22, 2013.
^ Gray, Jan DBA = KZMX, Notice of Violation, V201332800041 (Feb. 26, 2013)
(on file in EB-FIELDWR-13-00006467).
^ See Letter from Jan Charles Gray, President and CEO, Mt. Rushmore
Broadcasting, Inc., to Nikki P. Shears, District Director, Denver Office,
Western Region, Enforcement Bureau (Mar. 14, 2013) (on file in
EB-FIELDWR-13-00006467)(NOV Response).
^ NOV Response at 2. On April 4, 2013, a Denver agent conducted both day
and nighttime inspections of the Antenna Structure. The nighttime
observation found that the tower's top beacon was flashing, however, one
of the two mid-level red lights was extinguished.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
^ See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
^ 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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. S 17.51(a).
^ 47 C.F.R. S 17.48(a).
^ See supra note 2.
^ Mr. Gray informed the Denver Office that he had an associate monitoring
the lights on the Antenna Structure for him. NOV Response at 1.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.48(a), 17.51(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 14-57
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Federal Communications Commission DA 14-57