####  Before the 

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

> ) File No. EB-03-CG-054

WLTH Radio, Inc. )

WLTH(AM) ) NAL/Acct. No. 200432320001

Gary, Indiana )

) FRN 0004 9887 62

**FORFEITURE ORDER**

**Adopted: December 2, 2004 Released: December 6, 2004**

By the Assistant Chief, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of sixteen thousand dollars (\$16,000) to
    WLTH Radio, Inc. ("WLTH"), licensee of AM radio station WLTH, Gary,
    Indiana, and owner of the station's antenna structures, for willful
    and repeated violation of Sections 17.4(a), 17.48 and 17.51(a) of
    the Commission's Rules ("Rules").[^1] The noted violations involve
    WLTH's failure to register the antenna structure for the station,
    failure to notify the Federal Aviation Administration ("FAA") of a
    known antenna structure light outage, and its failure to exhibit the
    required red obstruction lighting.

2.  On December 23, 2003, the District Director of the Commission's
    Chicago, Illinois, Field Office ("Chicago Office") issued a *Notice
    of Apparent Liability for Forfeiture* ("*NAL*") [^2] to WLTH in the
    amount of sixteen thousand dollars (\$16,000). WLTH filed its
    initial response to the *NAL* on January 23, 2004, and supplemented
    it on February 27 and September 8, 2004.

    **II. BACKGROUND**.

3.  WLTH has two antenna structures -- one located in Gary, Indiana, and
    used for WLTH's daytime transmissions ("the day antenna structure")
    and the other located in a rural area near Gary, Indiana, and used
    for WLTH's nighttime transmissions ("the night antenna structure").
    The day antenna structure's height is more than 200 feet above
    ground level ("AGL") and that structure is subject to the
    registration, lighting and marking requirements specified in Part 17
    of the Rules.[^3] The night antenna structure, whose height is less
    than 200 feet AGL, is not subject those requirements.

4.  On February 14, 2003, the Commission received a complaint alleging
    that WLTH's antenna structure lighting was not operational. The
    agent checked the Commission's antenna structure registration
    ("ASR") data base on February 26, 2003, and determined that WLTH's
    day antenna structure was not registered.[^4] On March 5 and 6,
    2003, respectively an agent from the Chicago Office informed a WLTH
    employee and the station's engineer by telephone that the Commission
    had received the complaint. On March 12, 2003, the station engineer
    told the agent by telephone that there were underground cabling
    problems that resulted in a lighting outage at the day antenna
    structure and that he did not know the length of the outage because
    the power loss was sporadic.

5.  On March 12, 2003, the station engineer also told the agent that he
    had not notified the Federal Aviation Administration ("FAA") of the
    lighting outage.[^5] On March 19, 2003, the agent contacted the FAA
    and determined that the FAA's records indicated that WLTH notified
    the FAA of the lighting outage on March 12, 2003. In a letter dated
    March 26, 2003, WLTH stated that it had corrected the lighting
    outage.

6.  Based on its investigation, on December 23, 2003, the Chicago Office
    issued the subject *NAL* for WLTH's apparent willful and repeated
    violations of Sections 17.4(a), 17.48(a), and 17.51(a) of the Rules.
    In its initial response to the *NAL*, WLTH does not contest the fact
    that the tower was unregistered or unlighted for a period of time,
    but contends that its day antenna structure is less than 200 feet
    AGL and, therefore, is not subject to the Commission's antenna
    registration and lighting requirements. However, in its September 8,
    2004, supplementary response, WLTH reports that it conducted a
    survey on September 4, 2004, which established that the day antenna
    structure's height is 202.97 feet AGL. In addition, WLTH contends
    that hunters caused the lighting outage by shooting out the antenna
    structure lights. Finally, WLTH claims that it notified the FAA of
    the outage on March 5, 2003.

    **III. DISCUSSION**

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"),[^6] Section 1.80 of the Rules,[^7] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*
    ("*Policy Statement*")*.*[^8] Section 503(b) of the Act requires
    that, in examining WLTH's response, the Commission 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 other such matters as justice
    may require.[^9]

8.  Section 17.4(a) of the Rules provides in pertinent part that the
    owner of an antenna structure that had been assigned painting and
    lighting requirements prior to July 1, 1996, must register the
    antenna structure prior to July 1, 1998. According to the
    Commission's records, WLTH's day antenna structure had been assigned
    painting and lighting requirements. WLTH concedes that its day
    antenna structure was not registered. We conclude that WLTH
    willfully[^10] and repeatedly[^11] violated Section 17.4(a) of the
    Rules.

9.  Section 17.21(a) of the Rules[^12] requires that antenna structures
    exceeding 200 feet in height AGL be painted and lighted. As
    indicated above, WLTH's day antenna structure exceeds 200 feet in
    height AGL and is required to have red obstruction lighting. Section
    17.51(a) of the Rules requires that the red obstruction lighting be
    exhibited between sunset and sunrise. On March 5 and 6, 2003,
    respectively an agent from the Chicago Office informed a WLTH of the
    outage.[^13] WLTH admitted in the March 12, 2003, telephone
    conversation and in its letter of March 26, 2003, that there was a
    lighting outage at its day antenna structure. The fact that WLTH
    notified the FAA of the lighting outage on March 12, 2003,[^14] is
    also an admission that the outage existed. In its response to the
    *NAL*, WLTH claims that hunters caused the outage by shooting out
    the antenna structure lights. This explanation differs from WLTH's
    earlier explanation during the March 12, 2003, telephone
    conversation that the outage resulted from a sporadic power loss.
    Furthermore, the tower described in WLTH's response to the *NAL* is
    in "a wooded, rural area"[^15] and is apparently WLTH's night
    antenna structure, which has no lighting requirement. We conclude
    that WLTH did not display the required red obstruction lighting at
    its day antenna structure, in willful and repeated violation of
    Section 17.51(a) of the Rules.

10. Section 17.48 of the Rules requires antenna structure owners to
    immediately notify the FAA of any lighting outage not corrected
    within 30 minutes. The Chicago Office notified WLTH of the outage on
    March 5, 2004. WLTH now claims that it notified the FAA of the
    outage the on the same day. We must, however, reject that claim
    because it is inconsistent with the record. WLTH's station engineer
    stated, during his March 12, 2003, telephone conversation with the
    FCC agent that he had not notified the FAA of the outage.
    Furthermore, as of March 19, 2003, the FAA's records indicated that
    WLTH notified the FAA of the lighting outage on March 12, 2003. We
    conclude that WLTH did not immediately notify the FAA of a lighting
    outage not corrected within 30 minutes, in willful and repeated
    violation of Section 17.48 of the Commission's Rules.

11. We have examined WLTH'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 WLTH
    willfully and repeatedly violated Sections 17.4(a), 17.48 and
    17.51(a) of the Rules and that neither reduction nor cancellation of
    the proposed monetary forfeiture is warranted.

12. As of the date of the adoption of this *Order,* WLTH has provided no
    information indicating that it has achieved compliance with Section
    17.4(a) of the Rules. Accordingly, we will require, pursuant to
    Section 308(b) of the Act,[^16] that WLTH Radio, Inc., report to the
    Enforcement Bureau no more than thirty (30) days following the
    release of this order how it plans to achieve compliance with
    Section 17.4(a). WLTH's report must be submitted in the form of an
    affidavit or declaration signed by an officer or director.

    **IV. ORDERING CLAUSES**

13. 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,[^17]
    WLTH Radio, Inc., **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of sixteen thousand dollars (\$16,000) for willfully and
    repeatedly violating Sections 17.4(a), 17.48 and 17.51(a) of the
    Rules.

14. **IT IS FURTHER ORDERED** that, pursuant to Section 308(b) of the
    Act, WLTH must submit the report described in Paragraph 12, above,
    no more than thirty (30) days following the release of this *Order*,
    to the Federal Communications Commission, Enforcement Bureau,
    Spectrum Enforcement Division, 445 12th Street, S.W., Room 7-A820,
    Washington, D.C. 20554, Attention: Thomas D. Fitz-Gibbon, Esq.

15. 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.[^18] 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.
    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.[^19]

16. **IT IS FURTHER ORDERED** that, a copy of this *Order* shall be sent
    by regular mail Certified Mail Return Receipt Requested to WLTH
    Radio, Inc., P. O. Box 2300, Gary, Indiana 46409, and to its
    counsel, Allan G. Moskowitz, Kaye Scholer LLP, 901 15^th^ Street,
    N.W., Suite 1100, Washington, DC 20005.

**FEDERAL COMMUNICATIONS COMMISSION**

George R. Dillon

Assistant Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 17.4(a), 17.48(a) and 17.51(a).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200432320001 (Enf. Bur., Chicago Office, rel. December 23, 2003).

[^3]: 47 C.F.R. § 17.1 et seq. According to the Commission's records,
    WLTH's day antenna structure is required to have red obstruction
    lighting at night. (The information is from the Commission's
    "towpub" data base, which contains information concerning antenna
    structures that existed before the Commission required antenna
    structure registration.)

[^4]: As of the date of the adoption of this *Order*, the ASR data base
    indicates that WLTH's day antenna structure remains unregistered. On
    February 26, 2003, the Chicago Office sent WLTH a letter informing
    it of the lighting and registration violations.

[^5]: On March 12, 2003, the Chicago Office issued a *Notice of
    Violation* to WLTH for its failure to notify the FAA of the outage
    as required by Section 17.48(a) of the Rules.

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. § 1.80.

[^8]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^9]: 47 U.S.C. § 503(b)(2)(D).

[^10]: 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 Company*, 6 FCC
    Rcd 4387, 4388 (1991).

[^11]: As provided by 47 U.S.C. § 312(f)(2), a violation that continues
    for more than one day is "repeated." 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 Co.*, *supra*.

[^12]: 47 C.F.R. § 17.21(a).

[^13]: The record does not reflect that WLTH was aware of the light
    outage pursuant to the tower owner responsibilities set out in
    Section 17.47(a) of the Rules, 47 C.F.R. § 17.47(a), to detect such
    light failures.

[^14]: WLTH's assertion that it notified the FAA of the outage on March
    5, 2003, is clearly erroneous in light of the station engineer's
    statement on March 12, 2003, that he had not notified the FAA, and
    the FAA records which indicated that WLTH notified the FAA on March
    12, 2003.

[^15]: WLTH's response dated January 23, 2004, to the *NAL.*

[^16]: 47 U.S.C. § 308(b).

[^17]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^18]: 47 U.S.C. § 504(a).

[^19]: *See* 47 C.F.R. § 1.1914.