**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Eure Family Limited Partnership ) File No. EB-01-NF-201

)

Owner of Antenna Structure ) NAL/Acct. No. 200132640006

Registration \# 1018162 )

Mathews County, Virginia ) FRN 0005-0271-72

## MEMORANDUM OPINION AND ORDER 

**Adopted: October 29, 2002 Released: November 1, 2002**

By the Commission:

**I.** **INTRODUCTION**

1.  In this *Memorandum Opinion and Order* ("*Order*"), we deny an
    application for review filed on May 15, 2002, by Eure Family Limited
    Partnership ("Eure") of a *Memorandum Opinion and Order*
    ("*MO&O*")[^1] issued by the Enforcement Bureau on April 17, 2002.
    In that *MO&O*, the Enforcement Bureau denied a petition for
    reconsideration of a *Forfeiture Order*[^2] which assessed an
    \$8,000 forfeiture against Eure for failure to exhibit red
    obstruction lighting on its Mathews County, Virginia antenna
    structure between sunset and sunrise in willful violation of Section
    17.51(a) of the Commission's Rules ("Rules").[^3]

####  II. BACKGROUND

2.  Eure owns an antenna structure in Mathews County, Virginia, with
    antenna structure registration ("ASR") number 1018162. The ASR for
    the Mathews County tower indicates that red obstruction lighting is
    required between sunset and sunrise. On June 8, 2001, a resident of
    Harfield, Virginia contacted the FCC and reported that he had
    observed the Mathews County tower without its top beacon lit at
    night. On June 9, 2001, after sunset, an FCC agent inspected the
    structure and observed that the top beacon was not lit. Another FCC
    agent then contacted the Federal Aviation Administration's ("FAA")
    Leesburg, Virginia Flight Service Station, which advised the agent
    that there was no Notice to Airmen ("NOTAM")[^4] in effect for the
    Mathews County tower. At the FCC agent's request, the FAA issued a
    NOTAM for the Mathews County tower.

3.  On July 2, 2001, the Commission's Norfolk, Virginia Resident Agent
    Office ("Norfolk Office") issued a Notice of Violation ("NOV") to
    Eure[^5] for failing to exhibit red obstruction lighting on the
    Mathews County tower between sunset and sunrise in violation of
    Section 17.51(a) of the Rules. Eure filed a response to the NOV on
    July 20, 2001. In this response, Eure stated that it had operated
    the tower as an antenna site for WXEZ-FM, Yorktown, Virginia, and
    that it had monitored the tower lights using a telephone dial-up
    device that was programmed to notify WXEZ's engineer of any lighting
    outages until it sold WXEZ in October 2000. Eure further stated that
    by lease agreement dated January 5, 1999, it leased space on the
    Mathews County tower to Bullseye Broadcasting, LLC ("Bullseye"),
    licensee of WSRV(FM), Deltaville, Virginia, and that the terms of
    the lease agreement required Bullseye to monitor the tower lights
    and notify Eure of any lighting failures. Eure provided a letter
    from a principal of Bullseye, who stated that Bullseye failed to
    notify Eure of the malfunctioning beacon because he was unaware that
    the lease agreement obligated Bullseye to monitor the tower lights.
    Bullseye's principal also stated that the dial-up device used to
    monitor the tower lighting was never reprogrammed to notify
    Bullseye's engineer of any lighting outages after Eure sold WXEZ in
    October 2000. Finally, Eure indicated that the malfunctioning beacon
    had been repaired and that the dial-up device had recently been
    reprogrammed to notify Bullseye's engineer of any lighting outages.

4.  On August 16, 2001, the Norfolk Office issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") for a forfeiture in the amount
    of \$8,000 to Eure for failure to exhibit red obstruction lighting
    on the Mathews County tower between sunset and sunrise in violation
    of Section 17.51(a) of the Rules.[^6] The *NAL* noted that the base
    forfeiture amount for tower lighting violations is \$10,000,[^7] but
    reduced the forfeiture amount to \$8,000 based on Eure's history of
    compliance with the Commission's rules. Eure filed a response to the
    *NAL* on September 17, 2001. In this response, Eure did not dispute
    that the violation occurred, but argued that that the violation was
    inadvertent rather than willful because its contractor, Bullseye,
    failed to notify it of the extinguished beacon. In the *Forfeiture
    Order*, the Enforcement Bureau rejected this argument, noting that
    the Commission has long held licensees and other Commission
    regulatees responsible for the acts and omissions of their employees
    and independent contractors. Eure filed a petition for
    reconsideration of the *Forfeiture Order* on January 4, 2002. In the
    April 17, 2002, *MO&O*, the Enforcement Bureau denied Eure's
    petition, again concluding that Eure is responsible for the willful
    acts and omissions of its contractor.

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III. **DISCUSSION**

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5.  In its application for review, Eure argues that the forfeiture
    should be rescinded because the *MO&O* is not supported by evidence
    of a "willful" violation. Eure notes that the term "willful" means
    the "conscious and deliberate" commission or omission of an act[^8]
    and asserts that there is no evidence of "conscious" or "deliberate"
    action by Eure. Relying on the Merriam-Webster Collegiate Dictionary
    definitions of "conscious" and "deliberate," Eure maintains that the
    "willful" standard requires the Commission to prove "that Eure's
    conduct was done after perceiving, apprehending, or noticing that
    the tower light was out with a degree of controlled thought or
    observation" or "that Eure thought about deliberately or had a
    formal discussion before deciding not to report the tower light was
    out." Eure contends that nothing in the record demonstrates that it
    should or could have known about the outage. Rather, Eure states
    that it had an agreement with a party whose duty it was to monitor
    the lights, Bullseye, and Bullseye failed to live up to that
    agreement. Eure also argues that there is no evidence of a willful
    violation by Bullseye. Finally, Eure asserts that it disagrees with
    Commission precedent holding that Commission licensees and
    regulatees are responsible for the willful acts and omissions of
    their independent contractors.

6.  We reject Eure's contention that the Commission must show that Eure
    knew about the light outage on its tower and made a deliberate
    decision not to repair the outage or report the outage to the FAA in
    order to establish a willful violation of Section 17.51(a). It is
    irrelevant whether Eure knew about the light outage on its tower
    because, as the Bureau correctly concluded in the *MO&O*, Eure is
    liable for the willful acts and omissions of Bullseye. We note that
    when the Commission revised the antenna structure rules in 1995, it
    made clear that antenna structure owners will have primary
    responsibility for maintaining the prescribed painting and lighting
    on their antenna structures and will not be permitted to circumvent
    this responsibility by entering into contractual arrangements.[^9]
    Specifically, the Commission stated that "\[n\]otwithstanding
    private contractual arrangements ... structure owners, are and will
    continue to be, held responsible for maintaining the prescribed
    structure painting and/or lighting. Any resolution concerning a
    failure to perform pursuant to a private contractual arrangement,
    including appropriate remedies or damages, are matters to be
    resolved in a local forum."[^10]

7.  Moreover, as the Bureau stated in the *MO&O*, the Commission has
    long held that licensees and other Commission regulatees are
    responsible for the acts and omissions of their employees and
    independent contractors,[^11] and has "consistently refused to
    excuse licensees from forfeiture penalties where actions of
    employees or independent contractors have resulted in
    violations."[^12] Eure states that it disagrees with *Wagenvoord
    Broadcasting Co*., a case cited in the *MO&O* in which the
    Commission held that licensees are responsible for the acts and
    omissions of their independent contractors, in that this case has
    never been reviewed by a court and provides no reasoning for
    expanding the policy that licensees are responsible for the acts of
    their employees to include independent contractors.[^13] However,
    the fact that this case has never been reviewed by a court does not
    negate its holding. Further, the Commission has explained that under
    long established principles of common law, statutory duties are
    nondelegable and that employers are routinely held liable for breach
    of statutory duties by their independent contractors.[^14]
    Therefore, Eure's lease agreement with Bullseye does not relieve
    Eure of its primary responsibility to maintain the lighting on its
    tower or its liability for any failure by Bullseye.

8.  In the instant case, Eure had a lease agreement with Bullseye, which
    required Bullseye to monitor the tower lights and notify Eure of any
    lighting failure.[^15] There is no evidence that Bullseye made any
    attempt to comply with the tower lighting rule. Neither Eure nor
    Bullseye reprogrammed the telephone dial-up device used to monitor
    the tower lighting after Eure sold its FM station, WXEZ, in October
    2000,[^16] and Bullseye did not inspect the device even once between
    October 2000 and June 9, 2001 to ensure that it was functioning
    properly. Thus, Bullseye failed either to monitor the tower lights
    daily or to properly maintain an automatic alarm system as required
    by the rules,[^17] which would have led it to discover the lighting
    outage. We therefore agree with the Bureau's finding in the *MO&O*
    that Bullseye's conduct was willful. As explained above, Eure is
    responsible for Bullseye's willful conduct. Accordingly, we affirm
    the Bureau's conclusion that Eure is liable for an \$8,000
    forfeiture for failing to exhibit red obstruction lighting on its
    antenna structure between sunset and sunrise in willful violation of
    Section 17.51(a) of the Rules.

####  IV. ORDERING CLAUSES

9.  Accordingly, **IT IS ORDERED** that, Section 1.115(g) of the
    Rules,[^18] Eure Family Limited Partnership's application for review
    **IS DENIED**.

10. **IT IS FURTHER ORDERED** that 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.[^19] 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. 200132640006 and FRN 0005-0271-72. Requests for full
    payment under an installment plan should be sent to: Chief, Revenue
    and Receivables Operations Group, 445 12th Street, S.W., Washington,
    D.C. 20554.[^20]

11. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by Certified Mail Return Receipt Requested to Eure Family Limited
    Partnership, 4026 George Washington Hwy., Yorktown, Virginia 23692,
    and to its counsel, Gary S. Smithwick, Esq., Smithwick & Belendiuk,
    P.C., 5028 Wisconsin Avenue, N.W., Suite 301, Washington, D.C.
    20016.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *Eure Family Limited Partnership*, DA 02-878 (released April 17,
    2002).

[^2]: *Eure Family Limited Partnership*, 16 FCC Rcd 21302 (Enf. Bur.
    2001).

[^3]: 47 C.F.R. § 17.51(a).

[^4]: Tower owners are required to report any obstruction lighting
    outages to the nearest Flight Service Station or FAA office
    immediately if the outage is not corrected within 30 minutes. *See*
    47 C.F.R. § 17.48(a). The FAA then issues a NOTAM, a written
    advisory to aircraft pilots regarding a hazard or potential hazard
    of which they should be aware. A NOTAM expires automatically after
    15 days, unless the tower owner calls the FAA to extend the NOTAM.

[^5]: The Norfolk Office issued the NOV to Eure Communications, Inc.
    because FCC records incorrectly listed Eure Communications, Inc. as
    the owner of the Mathews County tower. The response to the NOV,
    which was signed by C. Wesley Eure on behalf of both Eure
    Communications, Inc. and Eure Family Limited Partnership, indicated
    that ownership of the tower had been transferred to Eure Family
    Limited Partnership. On August 8, 2001, the Norfolk Office confirmed
    that the FCC records had been updated to list Eure Family Limited
    Partnership as the owner of the Mathews County tower.

[^6]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200132640006 (Enf. Bur., Norfolk Office, released August 16, 2001).

[^7]: *See* 47 C.F.R. § 1.80(b)(4).

[^8]: Section 312(f) of the Communications Act of 1934, as amended,
    ("Act") states 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 or
    any rule or regulation of the Commission ...." 47 U.S.C. § 312(f).
    The Commission has stated that this definition applies to the term
    "willful" as used in Section 503(b) of the Act. *See Southern
    California Broadcasting Co.*, 6 FCC Rcd 4387 (1991) ("*Southern
    California*").

[^9]: *See* *Streamlining the Commission's Antenna Structure Clearance
    Procedure and Revision of Part 17 of the Commission's Rules
    Concerning Construction, Marking and Lighting Antenna Structures*,
    11 FCC Rcd 4272, 4294-96 (1995); *see also* 47 C.F.R. § 17.2(c)
    ("Notwithstanding any agreements made between the owner and any
    entity designated by the owner to maintain the antenna structure,
    the owner is ultimately responsible for compliance with the
    requirements of this part.").

[^10]: 11 FCC Rcd at 4296.

[^11]: *See MTD, Inc*., 6 FCC Rcd 34, 35 (1991); *Wagenvoord
    Broadcasting Co*., 35 FCC 2d 361 (1972).

[^12]: *See American Paging, Inc. of Virginia*, 12 FCC Rcd 10417, 10420
    (Wireless Bur., Enf. and Cons. Inf. Div., 1997) (quoting *Triad
    Broadcasting Company, Inc.*, 96 FCC 2d 1235, 1244 (1984)).

[^13]: Eure dismisses the other cases cited in the *MO&O* in support of
    this policy, asserting that they simply reiterate the Commission's
    policy that licensees are responsible for the acts and omissions of
    their employees and independent contractors.

[^14]: *See e.g., Vista Services Corporation*, 15 FCC Rcd 20646, 20650
    (2000), citing Restatement \[Second\] of Torts § 409, comment b at
    371 and *Alva Steamship Co., Ltd. v. City of New York*, 616 F.2d
    605, 609 (2d Cir. 1980) (exception to the rule of nonliability for
    the negligence of independent contractor is "the negligence of an
    independent contractor who performs a duty imposed by statute on the
    employer").

[^15]: Eure asserts that Bullseye misunderstood its legal obligations
    under the lease agreement. In support of this assertion, Eure
    provided a letter from Jim Campana, one of Bullseye's principals and
    manager of Station WSRV, who stated that he was unaware that the
    lease agreement required Bullseye to monitor the tower lights. Mr.
    Campana further stated that he was present at the negotiation of the
    monthly fee under the lease agreement, but that the other details of
    the lease agreement were handled by Bullseye's other principals. In
    addition, Mr. Campana stated that after learning of the light
    outage, he spoke with Bullseye's engineer, Joe Wetherbee, who told
    him that there is a dial-up device to monitor the lights which was
    programmed to notify Eure's engineer at WXEZ. Mr. Campana asserted
    that this device apparently was never reprogrammed to notify Mr.
    Wetherbee when Eure sold WXEZ in October 2000. Thus, while Mr.
    Campana may not have been aware of Bullseye's obligations under the
    lease agreement, Bullseye's other principals and Bullseye's engineer
    were aware that the lease agreement obligated Bullseye to monitor
    the tower lights.

[^16]: It is not clear from the record whether Eure informed Bullseye
    when it sold the FM station in October 2000 that the dial-up device
    had to be reprogrammed.

[^17]: 47 C.F.R. § 17.47.

[^18]: 47 C.F.R. § 1.115(g).

[^19]: 47 U.S.C. § 504(a).

[^20]: *See* 47 C.F.R. § 1.1914.