Before the

# Federal Communications Commission

##### Washington, D.C. 20554

+---------------------------------+---+----------------------------------+
| In the Matter of                | ) |                                  |
+---------------------------------+---+----------------------------------+
|                                 | ) |                                  |
+---------------------------------+---+----------------------------------+
| American Radio Brokers, Inc.,   | ) | File Number: EB-04-AN-028        |
+---------------------------------+---+----------------------------------+
| d/b/a Radio Station KFFR 1020   | ) | ##                               |
+---------------------------------+---+----------------------------------+
| San Francisco, California       | ) | ## NAL/Acct. No: 200532780002    |
+---------------------------------+---+----------------------------------+
|                                 | ) | FRN: 0010287019                  |
+---------------------------------+---+----------------------------------+
| Registrant of Antenna Structure | ) |                                  |
+---------------------------------+---+----------------------------------+
| ASR \# 1019797                  | ) | ##                               |
+---------------------------------+---+----------------------------------+
| Knik, Alaska                    | ) | ##                               |
+---------------------------------+---+----------------------------------+
|                                 | ) | ##                               |
+---------------------------------+---+----------------------------------+

# NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Released: December 10, 2004

By the Resident Agent, Anchorage Resident Agent Office, Western Region,
Enforcement Bureau:

I.  **INTRODUCTION**

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1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    that American Radio Brokers, Inc., d/b/a/ Radio Station KFFR 1020
    ("ARBInc"), San Francisco, California, registrant of Antenna
    Structure Number 1019797, located at Knik, Alaska, willfully and
    repeatedly violated Section 303(q) of the Communications Act of
    1934, as amended, ("the Act"), and Sections 17.48(a) and 17.51(a) of
    the Commission\'s Rules ("the Rules").[^1] Specifically, we find
    ARBInc apparently liable for failing to maintain the lighting
    requirements for the antenna structure, as prescribed by the
    Commission, and for failing to notify an office or flight service
    station of the FAA regarding light outages. We conclude, pursuant to
    Section 503(b) the Act,[^2] that ARBInc is apparently liable for a
    forfeiture in the amount of thirteen thousand dollars (\$13,000.00).

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II. **BACKGROUND**

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2.  Antenna structure \# 1019797 is located off Hazel Avenue near Knik,
    Alaska. ARBInc is the registered owner of this antenna structure.
    The antenna structure, designated as tower one of a two-tower
    transmitting array,[^3] is used by AM broadcast station KAXX, Eagle
    River, Alaska, and is also the supporting structure of the antenna
    for FM broadcast station KADX, Houston, Alaska.[^4] The antenna
    structure is required to have Obstruction Marking and Lighting in
    accordance with specified chapters of FAA Advisory Circular
    70/7460-1F.[^5] Specifically, the structure is required to be
    painted with the appropriate orange and white banding and lit with
    red obstruction lighting including a top mounted flashing red
    beacon.[^6]

3.  On October 15, 2002, the electric power utility, Matanuska Electric
    Association, Inc. ("MEA"), that serves the antenna structure \#
    1019797, alerted the Alaska Region FAA, Air Traffic Division, that
    the utility would terminate electric service to the site on October
    16, 2002, due to non-payment of utility bills by ARBInc.[^7] Because
    this action would make the tower go dark and premise equipment
    non-functional, Air Traffic Division personnel requested a Notice to
    Airmen ("NOTAM") issued, through the FAA's Kenai Flight Service
    Station ("Kenai FSS") as a preemptive measure concerning the antenna
    structure. [^8] The Air Traffic Division called and relayed the
    information they had obtained to a field agent of the Commission's
    Anchorage Resident Agent Office. Later on October 15, 2002,
    Anchorage agents attempted to contact staff at the main studio
    location for radio stations, KAXX and KADX, which broadcast using
    the antenna structure. Agents located the suites in the building
    used by the radio stations but found that both suites were locked
    and unoccupied. The main studio telephone number for these stations
    was reported as out of service by the local telephone system.

4.  The electric power to antenna structure \# 1019797 was discontinued
    by MEA on October 16, 2002. On October 30, 2002, with an impending
    auto-cancellation of the original NOTAM for the structure, the FAA's
    Kenai FSS contacted an Anchorage Office agent. The Anchorage agent
    revisited the antenna structure site on October 31, 2002, and
    confirmed no lights illuminated on the structure. The Kenai FSS then
    re-issued the NOTAM on the basis that no lighting was illuminated on
    the antenna structure. The Kenai FSS indicated that they had no
    record of the structure owner contacting them for NOTAM issuance or
    continuance.

5.  On December 12, 2002, an Anchorage agent contacted Chester Coleman
    ("Coleman"), of American Radio Brokers, Inc., to inquire about the
    status of the antenna structure lighting. Coleman responded that he
    was working on it. In response to the question regarding the
    issuance and maintenance of NOTAM's, Coleman stated that he did call
    the Palmer Flight Service Station and reported when the power was
    taken down. The Agent requested specifics about the contact with the
    Palmer FSS but Coleman indicated that he did not have the
    information immediately available and that he could forward the
    information later.[^9]

6.  On December 12, 2002, an Anchorage agent contacted the FAA's Air
    Traffic Division to inquire about the possibility of obtaining
    records of NOTAM's from the Palmer FSS. The Air Traffic Division
    indicated that the Palmer FSS is not authorized to accept or issue
    NOTAM's and that the Palmer FSS advises all callers to contact Kenai
    FSS with their information. The FAA Air Traffic Division also
    indicated that none of the NOTAM's issued or maintained by the Kenai
    FSS for antenna structure \# 1019797 were initiated by or on behalf
    of Coleman, ARBInc or its employees.

7.  On December 16, 2002, FAA Air Traffic Division issued an
    Aeronautical Advisory Study, 2002-AAL-279-OE, DETERMINATION OF
    HAZARD TO AIR NAVIGATION ("FAA Notice"), for the specified structure
    based on the on-going unlighted condition of the structure. This FAA
    Notice was addressed and sent to Chester P. Coleman, American Radio
    Brokers, Inc., 1255 Post Street, Suite 1011, San Francisco,
    CA, 94109. Coleman was required to respond by January 15, 2003. The
    FAA received no response from ARBInc, Coleman, or their
    representatives. Consequently, on January 25, 2003, the
    determination contained in the FAA Notice became final.[^10] The FAA
    Notice warned that the FAA's determination concerning the antenna
    structure did not relieve Coleman or ARBinc of "compliance
    responsibilities relating to any law, ordinance, or regulation of
    any Federal, State, or local government body."[^11]

8.  Between October 31, 2002 and July 23, 2004, agents from the
    Anchorage Office continued to contact MEA and visit the antenna
    structure site.[^12] Each contact with MEA revealed that ARBInc had
    made no effort to reestablish electric utility service to the
    antenna structure and that the structure remained disconnected from
    the utility's power grid.[^13] Each visit to the site revealed no
    illumination of the side marker or top beacon lighting. Agents noted
    no evidence of an alternate source of power (generator, wind or
    solar) at the site.

9.  On July 23, 2004, an Anchorage Office agent again traveled to the
    antenna structure, inspected the site and found no evidence of any
    change to MEA's utility connection point and no indication on the
    meters that the premise equipment was consuming power. The visit to
    the site revealed no illumination of the side marker or top beacon
    lighting. In response to an Anchorage agent's inquiry, MEA indicated
    that MEA has had no contact with Coleman, ARBInc or representative
    and that no payments to the overdue account have been made. MEA
    advised the Anchorage agent that the site remained continuously
    disconnected from the utility's power grid since the disconnect
    action of October 16, 2002.

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III. **DISCUSSION**

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10. 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. The term "willful" as used in
    Section 503(b) is interpreted to mean simply that the acts or
    omissions are committed knowingly.[^14] The term "repeated" means
    the commission or omission of such act more than once or for more
    than one day.[^15]

11. 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.[^16] Section 17.51(a) of the Rules
    requires that all red obstruction lighting be exhibited from sunset
    to sunrise unless otherwise specified.[^17] On October 16, 2002, the
    utility supplying electrical power to antenna structure #1019797
    terminated service to the site, leaving the antenna structure dark
    and premise equipment non-functional. With no primary or alternate
    source of electricity, antenna structure #1019797 has not been
    illuminated with its required red obstruction lighting since October
    16, 2002 through at least July 23, 2004, the date of the last
    inspection by the Anchorage FCC agent.

12. Section 17.48(a) of the Rules requires that tower registrants notify
    the FAA Flight Service Station or office of any extinguishment or
    malfunction of any required top mounted lighting or flashing light
    no matter the position on the structure. [^18] Because of the
    termination of electrical power on October 16, 2002, the lighting on
    antenna structure #1019797 has been extinguished since that date
    through at least July 23, 2004. However, ARBInc, the owner of the
    antenna structure, has never notified an FAA Flight Service Station
    concerning this outage. In addition, ARBInc failed to respond to
    inquiries from both the FAA and the FCC concerning the light outages
    on the antenna structure

13. ARBInc's principle, Chester Coleman, was given notice of the
    extinguishment of the lights by a Commission agent. Coleman
    indicated to the agent that he knew of the outage and had notified
    the FAA of the outage, although no notification was ever given.
    Therefore, ARBInc's failure to ensure the required obstruction
    lighting on antenna structure \# 1019797, and to notify the FAA of
    the extinguishment of the lighting on the antenna structure, was
    willful.[^19] ARBInc's failure to ensure the obstruction lighting,
    and to notify the FAA, occurred on more than one day, therefore,
    they were repeated. Based on the evidence before us, we find ARBInc
    willfully and repeatedly violated Section 303(q) of the Act and
    Sections 17.51(a) and 17.48(a) of the Rules by failing to maintain
    the required red obstruction lighting from sunset to sunrise and by
    failing to notify FAA regarding the on-going light outage on antenna
    structure 1019797 in Knik, Alaska as required.

14. Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, ("*Forfeiture Policy Statement*"), and Section 1.80 of
    the Rules,[^20] the base forfeiture amount for failure to comply
    with prescribed lighting and/or marking is \$10,000. The base amount
    for failing to file required information is \$3000. We find that
    failing to notify the FAA of an outage constitutes a failure to file
    required information. In assessing the monetary forfeiture amount,
    we must also take into account the statutory factors set forth in
    Section 503(b)(2)(D) 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.[^21] Appling the *Forfeiture Policy Statement*, Section
    1.80, and the statutory factors, a \$13,000 forfeiture is warranted.

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IV. **ORDERING CLAUSES**

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15. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Sections 0.111, 0.311
    and 1.80 of the Rules,[^22] American Radio Brokers, Inc. d/b/a Radio
    Station KFFR 1020 is hereby NOTIFIED of this APPARENT LIABILITY FOR
    A FORFEITURE in the amount of thirteen thousand dollars (\$13,000)
    for willful and repeated violation of Section 303(q) of the Act and
    Sections 17.51(a) and 17.48(a) of the Rules by failing to maintain
    and exhibit red obstruction lighting from sunset to sunrise on
    antenna structure 1019797 in Knik, Alaska and making proper
    notification to the FAA regarding the top light outage.

16. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty days of the release date of this NAL, American Radio
    Brokers, Inc., d/b/a Radio Station KFFR 1020, SHALL PAY the full
    amount of the proposed forfeiture or SHALL FILE a written statement
    seeking reduction or cancellation of the proposed forfeiture.

17. 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/Acct. No. and FRN No.
    referenced above. Payment by check or money order may be mailed to
    Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. Payment by overnight mail may be sent to Bank One/LB
    73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
    Payment by wire transfer may be made to ABA Number 071000013,
    receiving bank Bank One, and account number 1165259.

18. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, Anchorage Resident
    Agent Office, P.O. Box 221849, Anchorage, Alaska 99522-1849 and must
    include the NAL/Acct. No. referenced in the caption.

19. 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 practices ("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.

20. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^23]

21. IT IS FURTHER ORDERED THAT a copy of this NAL shall be sent by
    regular mail and Certified Mail Return Receipt Requested to:
    American Radio Brokers, Inc., d/b/a Radio Station KFFR 1020, 1255
    Post Street, Suite 625, San Francisco, CA 94109; Chester P. Coleman,
    C/O Amer. Radio Brokers, Inc., 1255 Post Street, Suite 1011, San
    Francisco, CA 94109; Chester P. Coleman, 1255 Post Street, Suite
    1023, San Francisco, CA 94109.

FEDERAL COMMUNICATIONS COMMISSION

> David J. Charlton
>
> Resident Agent
>
> Anchorage Resident Agent Office
>
> Western Region
>
> Enforcement Bureau

[^1]: 47 U.S.C. § 303(q), 47 C.F.R. §§ 17.48(a) & 17.51(a).

[^2]: 47 U.S.C. § 503(b).

[^3]: The second tower of this array is below 200 feet, passes slope
    requirements and therefore is not required to be a registered
    structure.

[^4]: According to Commission records, Chester P. Coleman is the
    licensee of both KAXX and KADX.

[^5]: Pursuant to Section 17.23 of the Commission' s Rules, 47 C.F.R. §
    17.23, antenna structures to be registered must conform with the
    Federal Aviation Administration's ("FAA's") painting and light
    recommendation as set forth on the FAA Notice to the owner of the
    structure. The Notice contains the FAA's determination of "no
    hazard," as referenced in FAA Advisory Circulars: AC 70/7460-1J,
    "Obstruction Marking and Lighting," effective January 1, 1996, and
    AC 150/5345-43E, "Specification for Obstruction Lighting Equipment,"
    dated October 19, 1995. These circulars are incorporated by
    reference in Section 17.23 of the Rules and "contain FAA
    recommendations for painting and lighting structures which pose a
    potential hazard to air navigation. For purposes of this part, the
    specifications, standards, and general requirements stated in these
    documents are mandatory." 47 C.F.R. § 17.23.

[^6]: FAA Advisory Circular 70/7460-1F, Chapters Three, Four and Five.

[^7]: MEA refers to this site as the "KABN radio site."

[^8]: A "NOTAM" advises pilots of an antenna structure at a specific
    location with a temporary light malfunction.

[^9]: The Anchorage Office has not yet received the requested
    information from Coleman.

[^10]: On October 8, 2003 and December 10, 2003, an Anchorage office
    agent made contact with the FAA Air Traffic Division to verify that
    the FAA NOTAM was still in effect. Air Traffic personnel advised
    that the FAA NOTAM was still in effect and that no contact with
    ARBInc or Coleman had been advanced or received.

[^11]: FAA Notice at 1.

[^12]: Anchorage Office agents visited the antenna structure on October
    16, 2002, October 31, 2002, December 12, 2002, December 16, 2002,
    January 9, 2003, October 8, 2003, December 18, 2003, and July 23,
    2004. On December 12, 2002, an agent found that MEA had "Red Tagged"
    and locked both power utility meter bases/panels. Neither of the
    utility meters were turning, indicating no power consumption from
    the premise equipment. On the December 18, 2003 visit, an agent
    noted that MEA had removed one of the two meters and placed a
    tamper-proof locking ring around the remaining meter with a new "Red
    Tag." The remaining meter showed no power consumption from the
    premise equipment. These conditions were still in existence at the
    agents' visit on July 23, 2004. The agents noted no evidence of an
    alternate source of power (generator, wind or solar) at the site
    during any of their visits.

[^13]: Anchorage Office agents contacted MEA on October 31, 2002,
    December 10, 2003 and July 22, 2004.

[^14]: 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,'
    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
    . . . ." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^15]: 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 '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."

[^16]: 47 U.S.C. § 303(q).

[^17]: 47 C.F.R. § 17.51(a).

[^18]: 47 C.F.R. § 17.48(a).

[^19]: ^?^The FAA Notice specifically warned ARBInc and Coleman that the
    FAA determination that the antenna structure was a hazard to air
    navigation did not relieve them of their compliance responsibilities
    relating to any Federal, State or local law.

[^20]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. § 1.80.

[^21]: 47 U.S.C. § 503(b)(2)(D).

[^22]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^23]: *See* 47 C.F.R. § 1.1914