**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Westshore Broadcasting, Inc. ) File No. EB-02-TP-331

Licensee of AM Radio Station WOCA in Ocala, )

Florida, and Owner of Antenna Structure #1027385 ) NAL/Acct. No.
200332700005

St. Petersburg, Florida )

) FRN 0003-7580-00

## FORFEITURE ORDER 

**Adopted: April 1, 2004 Released: April 5, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of twelve thousand dollars (\$12,000) to
    Westshore Broadcasting, Inc. ("Westshore"), licensee of AM station
    WOCA for willful and repeated violation of Sections 17.51, 17.57 and
    73.49 of the Commission's Rules ("Rules").[^1] The noted violations
    involve Westshore's failure to light the antenna structure for
    station WOCA, to notify the Commission of a change in the antenna
    structure's ownership information, and to enclose WOCA's antenna
    structure within an effective locked fence.

2.  On November 1, 2002, the Commission's Tampa, Florida, Field Office
    ("Tampa Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Westshore for a forfeiture in the amount of
    twenty thousand dollars (\$20,000).[^2] Westshore responded to the
    *NAL* on December 3, 2002.

####  II. BACKGROUND

3.  On July 1, 2002, the Tampa Office received a complaint indicating
    that the lights on WOCA's antenna structure (#1027385), which
    Westshore owned, had been dark for at least six months. After
    receiving the complaint, an agent at the Tampa Office phoned the
    Federal Aviation Administration ("FAA") and found that there was no
    Notice to Airmen ("NOTAM") [^3] on file for antenna structure
    #1027385.[^4] Later on the same day, agents from the Tampa Office
    inspected WOCA's transmitting facilities. During their inspection,
    the agents observed that the gate to the fence surrounding antenna
    structure #1027385 was unlocked. When the agents covered the tower
    lights' photocell, they observed that the tower lights did not
    illuminate.

4.  On July 2, 2002, agents from the Tampa Office again inspected
    station WOCA's transmitting facilities and again observed that the
    gate to the fence surrounding antenna structure #1027385 was
    unlocked. The station manager stated that the antenna structure
    lighting failed on or about September 26, 2001, and had not been
    repaired because Westshore's service company refused to climb the
    tower due to its poor structural integrity.

5.  An agent from the Tampa office subsequently checked the FCC's
    Antenna Structure Registration ("ASR") data base and found that
    antenna structure #1027385 was still registered in the name of a
    previous owner.

6.  On November 1, 2002, the Tampa Office issued a *NAL* for a
    forfeiture in the amount of \$20,000 to Westshore for willful and
    repeated violation of Sections 17.51, 17.57 and 73.49 of the Rules.
    In its response, filed December 3, 2002, Westshore admits that its
    tower lights failed on September 26, 2001; that the gate to the
    fence around its tower was unlocked at the time of the FCC
    inspection on July 2, 2002; and that its tower registration
    information was not current at the time of the inspection.
    Westshore, however, seeks reduction or cancellation of the proposed
    monetary forfeiture. Westshore contends that it timely notified the
    FAA of the lighting outage, that its tower could not be relighted
    because it was unsafe to climb and that it "has been working in good
    faith to correct the outage and bring the facility into compliance."
    Westshore states that it was unaware of the fencing and registration
    violations. Westshore also argues that, if the proposed forfeiture
    is imposed, it will place a serious financial burden on the company
    and provides copies of its 2000 and 2001 federal income tax returns
    to support this claim.

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III. **DISCUSSION**

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7.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^5] Section 1.80 of the Rules,[^6] 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) ("*Policy
    Statement*"). Section 503(b) of the Act requires that the
    Commission, in examining Westshore's response, 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 such other matters as justice
    may require.[^7]

8.  According to the ASR data base, at the time of the inspection by the
    Tampa agents, red obstruction lighting was required for WOCA's
    antenna structure. Section 17.51 of the Rules requires that red
    obstruction lighting be exhibited between sunset and sunrise. In its
    December 3, 2002, response to the *NAL,* Westshore concedes that the
    red obstruction lighting of antenna structure #1027385 had not
    functioned since September 26, 2001. We find that, by failing to
    relight the tower for over nine months, Westshore willfully[^8] and
    repeatedly[^9] violated Section 17.51 of the Rules.[^10]

9.  Section 17.57 of the Rules requires the owner of an antenna
    structure for which an ASR number has been obtained to notify the
    Commission of any change in the ownership information. Westshore
    concedes that it did not do so following an ownership change and
    that it acted only after being notified of the violation by the
    Commission.[^11] Additionally Westshore claims it was unaware of
    this violation. Westshore's lack of awareness that it was violating
    the Rules indicates that it may not have intended to violate the
    Rules but does not negate the willfulness of the violation.[^12]
    Moreover, licensees are expected to know and comply with the
    Commission's Rules.[^13] We find that Westshore willfully and
    repeatedly violated Section 17.57 of the Rules.

10. Section 73.49 of the Rules requires the owner of an antenna
    structure to enclose it within an effective locked fence. The FCC
    agents' observations establish that the gate in the fence around
    Westshore's antenna structure was unlocked on July 1 and 2, 2002.
    Westshore claims that it was unaware of this violation and states
    its belief that grounds personnel or power company personnel
    accidentally left the gate open. Because Westshore has not provided
    any evidence of an inspection routine for checking the condition of
    the gate or to determine whether grounds personnel or power company
    personnel had left it open, we find Westshore responsible for the
    gate's being left open on July 1 and 2, 2002.[^14] We, accordingly,
    find that Westshore willfully and repeatedly violated Section 73.49
    of the Rules.

11. No mitigation is warranted on the basis of Westshore's correction of
    the violations. As the Commission stated in *Seawest Yacht Brokers*,
    9 FCC Rcd 6099, 6099 (1994), "corrective action taken to come into
    compliance with Commission rules or policy is expected, and does not
    nullify or mitigate any prior forfeitures or violations." [^15]

12. Westshore states that it notified the FAA within 30 minutes after
    discovery of the outage on September 26, 2001, and arranged on
    September 27, 2001, to have the lights repaired but did not have
    them repaired at that time because the antenna structure was unsafe
    to climb. We agree with Westshore that the antenna structure was not
    safe to climb. However, the antenna structure was still
    unilluminated on the day of the inspection, more than nine months
    after the outage began.[^16] Because Westshore's unilluminated tower
    was a hazard to air navigation, it was essential for Westshore to
    correct the violation within a reasonable amount of time.[^17] We
    find that the nine months between the discovery of the outage and
    the FCC inspection was not a reasonable period to leave the lighting
    violation uncorrected. Westshore's response to the *NAL* indicates
    that, prior to the FCC investigation, Westshore had ordered and
    received a new tower but had not erected because it was unable to
    get permission from the City of Ocala, Florida, to erect it. While
    these circumstances do not excuse such a lengthy outage, we find
    that Westshore's actions in arranging for a new antenna structure
    demonstrate good faith and that the portion of the proposed
    forfeiture imposed on Westshore for violation of Section 17.51 of
    the Rules should be reduced from \$10,000 to \$5,000. We find, thus,
    that the total forfeiture amount should be reduced from \$20,000 to
    \$15,000.

13. Finally, Westshore argues that, if the proposed forfeiture is
    imposed, it will place a serious financial burden on the company. In
    support of its financial hardship claim, Westshore submits copies of
    its 2000 and 2001 federal income tax returns. The Commission has
    determined that, in general, a licensee\'s gross revenues are the
    best indicator of its ability to pay a forfeiture.[^18] After
    reviewing the financial data submitted, we find that the proposed
    monetary forfeiture should be further reduced to \$12,000. [^19]

14. We have examined Westshore's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that
    Westshore willfully and repeatedly violated Sections 17.51, 17.57
    and 73.49 of the Rules. We also conclude that, while cancellation of
    the proposed \$20,000 monetary forfeiture is not warranted, a
    reduction to \$12,000 is justified.

    **IV. ORDERING CLAUSES**

15. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^20]
    Westshore Broadcasting, Inc., **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of twelve thousand dollars (\$12,000) for
    failure to light its antenna structure, to notify the Commission of
    a change in the antenna structure's ownership information, and to
    enclose the antenna structure within an effective locked fence, in
    willful and repeated violation of Sections 17.51, 17.57 and 73.49 of
    the Rules.

16. 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.[^21] Payment may be made by
    mailing a check or similar instrument, payable to the order of the
    Federal Communications Commission, to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should reference NAL/Acct. No. 200332700005 and FRN
    0003-7580-00. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^22]

17. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to
    Westshore Broadcasting, Inc., 311 112^th^ Avenue, N.E., St.
    Petersburg, Florida 33716.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 17.21(a), 17.57 and 73.49.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200232700005 (Enf. Bur., Tampa Office, released November 1, 2002).

[^3]: Section 17.48(a) of the Rules, 47 C.F.R. § 17.48(a), requires
    tower owners to immediately report lighting outages that cannot be
    corrected within 30 minutes to the FAA. When the FAA receives a
    report of a lighting outage, it issues a "NOTAM" concerning the
    outage.

[^4]: According to records provided by Westshore, the most recent NOTAM
    was issued on May 8, 2002.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: Section 312(f)(1) of the Act, 47 U.S.C. § 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,' ... 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).

[^9]: As provided by 47 U.S.C. § 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. 97^th^ 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).

[^10]: *See, e.g., Media Broadcasting Corporation,* 17 FCC Rcd 24583
    (Enf. Bur. 2002).

[^11]: A check of the ASR data base indicates that Westshore updated the
    ownership information on March 14, 2003.

[^12]: *See Southern California Broadcasting Co., supra.*

[^13]: *Sitka Broadcasting Co., Inc.,* 70 FCC 2d 2375, 2378 (1979).

[^14]: *See, e.g., Tidewater Communications, Inc.,* 17 FCC Rcd 8586,
    8588 (Enf. Bur. 2002) (failure of automated alarm system inadequate
    to overcome finding of willfulness of tower lighting violation where
    there is no evidence that tower owner ever monitored alarm system or
    tower lighting); *recon. granted,* 18 FCC 5524 (Enf. Bur. 2003)
    (forfeiture cancelled where tower owner produced evidence that it
    monitored tower lighting two days prior to the light outage); and
    *AT&T Wireless Services, Inc.,* 17 FCC Rcd 21866, 21873 (2002)
    (forfeiture imposed for willful violation where there is no evidence
    of original compliance or of periodic inspections to learn of
    noncompliance). *Cf. Vernon Broadcasting,* 60 RR 2d 1275 (1986)
    (forfeiture reduced where licensee regularly inspected tower fencing
    and found it to be in good condition just prior to FCC inspection).

[^15]: *See also Callais Cablevision, Inc.,* 17 FCC Rcd 22626, 22629
    (2002); *Radio Station KGVL, Inc.,* 42 FCC 2d 258, 259 (1973); and
    *Executive Broadcasting Corp*., 3 FCC 2d 699, 700 (1966).

[^16]: Westshore actually did not correct the violation until 19 months
    after the discovery of the outage. According to the Commission's ASR
    data base, antenna structure #1027385 was dismantled on or about May
    20, 2003. The Commission's records also indicate that station WOCA
    is now transmitting from a new 190 foot tower that is not required
    to be registered or illuminated.

[^17]: *See* 47 C.F.R § 17.56.

[^18]: *See PJB Communications of Virginia, Inc.,* 7 FCC Rcd 2088, 2089
    (1992).

[^19]: *Id.* at 2089 (forfeiture not deemed excessive where it
    represented approximately 2.02 percent of the violator's gross
    revenues); *Hoosier Broadcasting Corporation*, 15 FCC Rcd 8640, 8641
    (Enf. Bur. 2002) (forfeiture not deemed excessive where it
    represented approximately 7.6 percent of the violator's gross
    revenues); *Afton Communications Corp.*, 7 FCC Rcd 6741 (Com. Car.
    Bur. 1992) (forfeiture not deemed excessive where it represented
    approximately 3.9 percent of the violator's gross revenues).

[^20]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^21]: 47 U.S.C. § 504(a).

[^22]: *See* 47 C.F.R. § 1.1914.