**Before the**

## Federal Communications Commission {#federal-communications-commission .unnumbered}

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-02-CF-338

)

Mortenson Broadcasting Co. ) NAL/Acct. No. 200232340002

Antenna Structure Registration No. 1020434 )

South Charleston, WV ) FRN 0004-1688-29

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released:** July 9, 2002

By the District Director, Columbia Office, Enforcement Bureau:

# I. INTRODUCTION {#i.-introduction .unnumbered}

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Mortenson Broadcasting Co. ("Mortenson") has apparently
    violated Section 17.51(a) of the Commission's Rules[^1] ("Rules") by
    failing to exhibit obstruction lights on its antenna structure
    between sunset and sunrise. We conclude that Mortenson is apparently
    liable for a forfeiture in the amount of ten thousand dollars
    (\$10,000).

## II. BACKGROUND {#ii.-background .unnumbered}

2.  On May 15, 2002, at approximately 9:20 PM agents from the
    Commission's Columbia, Maryland office observed that the lights on
    Mortenson\'s tower were extinguished.

3.  On May 16, 2002, at approximately 9:30 AM one of the agents visited
    Mortenson's studio of WSCW,[^2] and determined that station
    personnel were unaware of the fact that the tower lights were unlit
    the previous night. The agent advised Mortenson's WSCW chief
    engineer and station manager that the station was required to notify
    the FAA of the unlit tower if not repaired within 30 minutes.

4.  On May 23, 2002, the agent contacted the FAA Flight Service Center
    in Elkins, WV. FAA personnel told the agent that Mortenson made
    notification of the light outage at 8:14 AM on May 17, 2002.

##   {#section .unnumbered}

## III. DISCUSSION {#iii.-discussion .unnumbered}

5.  Section 17.51(a) of the Rules requires prescribed obstruction
    lighting be exhibited from sunset to sunrise. Mortenson's antenna
    structure was observed on May 15, 2002 after sunset with obstruction
    lighting unlit. Section 17.48 of the Rules[^3] requires notification
    of extinguished lighting to the FAA if not corrected within 30
    minutes. FCC agents advised Mortenson personnel of the improper
    functioning of the tower lighting on the morning of May 16, 2002.
    Mortenson waited until after another sunset to sunrise period before
    notifying the FAA of the improper functioning of the lights.

6.  Based on the evidence before us, we find that Mortenson
    willfully[^4] violated Section 17.51(a) of the Commission's Rules.
    *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*")[^5], sets the base
    forfeiture amount at \$10,000 for failure to comply with prescribed
    lighting. 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"),[^6] 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. Applying the *Forfeiture
    Policy Statement* and the statutory factors to the instant case and
    applying the inflation adjustments, we believe that a ten thousand
    dollar (\$10,000) monetary forfeiture is warranted.

#####  {#section-1 .unnumbered}

##### ORDERING CLAUSES

7.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act[^7] and Sections 0.111, 0.311 and 1.80 of the Rules[^8],
    Mortenson Broadcasting Co. is hereby NOTIFIED of this APPARENT
    LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
    (\$10,000) for willfully violating Section 17.51(a) of the Rules.

8.  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, Mortenson Broadcasting Co. SHALL PAY the full amount of
    the proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

9.  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. 200232340002,
    and FRN 0004-1688-29

10. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Technical and Public Safety
    Division, 445 12th Street, S.W., Washington, D.C. 20554 and MUST
    INCLUDE THE NAL/Acct. No. 200232340002.

11. 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.

12. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief,
    Revenue and Receivables Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^9]

13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail, Return Receipt Requested,
    to Mortenson Broadcasting Co., 3270 Blazer Parkway, Suite 101,
    Lexington, KY 40509.

FEDERAL COMMUNICATIONS COMMISSION

Charles C. Magin

District Director

Columbia Office

[^1]: 47 C.F.R. § 17.51(a).

[^2]: Mortenson is the licensee of radio station WSCW in addition to
    registered owner of the antenna structure.

[^3]: 47 C.F.R. § 17.48

[^4]: 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 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).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: 47 U.S.C. § 503(b).

[^8]: 47 C.F.R. §§ 0.111, and 0.311.

[^9]: See 47 C.F.R. § 1.1914.