**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-02-BF-135       |
|                                  |   |                                 |
| Nextmedia Operating Inc.         | ) | NAL/Acct.No. 200232280004       |
|                                  |   |                                 |
| Radio Station WJET (AM)          | ) | FRN: 0006-1324-19               |
|                                  |   |                                 |
| Erie, PA                         | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

###  Released: August 28, 2002

### 

By the Resident Agent, Buffalo Office, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture, we find that
    Nextmedia Operating Inc., ("Nextmedia"), licensee of AM broadcast
    station WJET, Erie, Pennsylvania apparently violated Sections
    17.47(a)(1), 17.48(a) and 17.51(a)[^1] of the Commission's Rules
    ("Rules") by failing to make an observation of the antenna
    structure's lights at least once each 24 hours, failing to notify
    the Federal Aviation Administration ("FAA") that the obstruction
    lighting was improperly functioning, and failing to exhibit lighting
    from sunset to sunrise. We conclude that Nextmedia. is apparently
    liable for a forfeiture in the amount of fifteen thousand dollars
    (\$15,000).

**II.** **BACKGROUND**

2.  On May 30, 2002, the Federal Communications Commission's ("FCC")
    Enforcement Bureau's Buffalo Office received information that the
    top beacon on the antenna tower for radio station WJET in Erie,
    Pennsylvania was not lit. On May 30, 2002 agent Viglione of the
    Buffalo Office attempted to contact station personnel. He left a
    voice mail message for the station manager, but received no return
    call that day. On May 31, 2002 the agent again telephoned the
    station and spoke with Rick Rambaldo, the station manager. The agent
    requested the tower lighting be inspected. Mr. Rambaldo was also
    instructed to notify the FAA if the inspection determined the top
    beacon was not functioning. Mr. Rambaldo later that day informed the
    agent that the inspection had been completed and that the top beacon
    was found to be not functioning. Mr. Rambaldo also informed him that
    the FAA had been notified.

3.  On June 3, 2002, agent Viglione continued the investigation on-site,
    and spoke to Mr. Mark Himler, WJET's chief engineer. Mr. Himler
    informed him that the automatic lighting indicator was not
    functioning, and that the tower lights would be checked manually
    each day until the device was repaired. The agent also observed that
    the top beacon was in the process of being repaired.

4.  On June 5, 2002, the Buffalo Office issued a Notice of Violation to
    Nextmedia citing these deficiencies. On June 18, 2002, Nextmedia
    submitted a written reply stating that an inspection of the tower
    lights conducted on May 31, 2002 revealed they were non-operating
    and the outage was immediately reported to the FAA. Further
    inspection by station personnel revealed the tower lighting
    monitoring device had been damaged. Nextmedia stated the tower
    lights and the tower lighting monitoring device had since been
    repaired.

**III**. **DISCUSSION**

III. 

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5.  Section 17.47(a)(1) of the Rules 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 of such lights. The tower lighting
    monitoring device used by radio station WJET was not properly
    maintained in that it indicated the lights were on when in fact the
    lights were not functioning.

6.  Section 17.48(a) requires the owner of an antenna structure which
    has been assigned lighting specifications to report immediately to
    the nearest Flight Service Station of the FAA any extinguishment of
    any top steady burning light or any flashing obstruction light,
    regardless of its position on the antenna structure, that is not
    corrected within 30 minutes. From at least May 30, 2002 to May 31,
    2002, Nextmedia had not reported the outage to the FAA.

7.  Section 17.51(a) of the Rules requires all red obstruction lighting
    shall be exhibited from sunset to sunrise. Nextmedia failed to
    exhibit the red obstruction lighting on at least May 30, 2002.

8.  Based on the evidence before us, we find that on May 30, 2002,
    Nextmedia willfully[^2] violated Section 17.47(a)(1), 17.48(a) and
    17.51(a) of the Rules by failing to 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 failure of such lights, failing to notify the
    nearest Flight Service Station of the FAA of the extinguishment of
    the top steady burning light that was not corrected within 30
    minutes and failing to exhibit all red obstruction lighting from
    sunset to sunrise. *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, 12 FCC Rcd 17087, 17113 (1997), *recon. denied*, 15 FCC
    Rcd 303(1999) ("*Forfeiture Policy Statement*")[^3], sets the base
    forfeiture amount for failure to make an observation of the antenna
    structure's lights at least once each 24 hours at \$2000, failure to
    notify the nearest Flight Service Station of the FAA of the
    extinguishment of the top steady burning light that was not
    corrected within 30 minutes at \$3000, and failure to exhibit all
    red obstruction lighting from sunset to sunrise at \$10,000. In
    assessing the monetary forfeiture amount, we must take into account
    the statutory factors set forth in Section 503(b)(2)(D) of the
    Communications Act of 1934, as amended, ("Act"),[^4] which include
    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. The record reveals that Nextmedia does have an overall
    history of compliance, but the violation was egregious. Applying the
    *Forfeiture Policy Statement* and the statutory factors to the
    instant case and applying the inflation adjustments, we believe that
    a fifteen thousand dollar (\$15,000) monetary forfeiture is
    warranted

#### IV. ORDERING CLAUSES

9.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act,[^5] and Sections 0.111, 0.311 and 1.80 of the Rules,[^6]
    Nextmedia is hereby NOTIFIED of its APPARENT LIABILITY FOR A
    FORFEITURE in the amount of fifteen thousand dollars (\$15,000) for
    violating Sections 17.47(a)(1), 17.48(a) and 17.51(a) of the Rules.

10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty days of the release date of this NOTICE OF APPARENT
    LIABILITY, Nextmedia 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 may be made by mailing a check or similar
    instrument, payable to the order of the Federal Communications
    Commission, to the Forfeiture Collection Section, Finance Branch,
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL/Acct. No. 200232280004,
    and FRN 0006-1324-19.

12. The response, if any, must be mailed to Federal Communications
    Commission, Office of the Secretary, 445 12^th^ Street, SW,
    Washington, DC 20554, Attn: Enforcement Bureau-Technical & Public
    Safety Division, and MUST INCLUDE THE NAL/Acct. No. 200232280004.

13. 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.

14. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Federal
    Communications Commission, Chief, Revenue and Receivables Operations
    Group, 445 12th Street, S.W., Washington, D.C. 20554.[^7]

15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail Return Receipt Requested
    to Nextmedia Operating Inc., 6312 South Fiddlers Green Circle,
    Englewood, CO, 80111.

FEDERAL COMMUNICATIONS COMMISSION

David A. Viglione

Resident Agent

Buffalo Office

[^1]: 47 C.F.R. §§ 17.47(a)(1), 17.48(a), and 17.51(a)

[^2]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to Section 503(b) of the Act, provides that "\[t\]he term "willful",
    when used with reference to commission or omission of any act, means
    that 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 Red 4387 (1991)

[^3]: 47 C.F.R. § 1.80.

[^4]: 47 U.S.C. § 503(b)(2)(D).

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. §§ 0.111, and 0.311.

[^7]: *See* 47 C.F.R. § 1.1914.