**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Barnacle Broadcasting Company, Ltd ) File No. EB-02-AT- 410

)

)

Owner of Antenna Structure \# 1063961 ) NAL/Acct. No. 200332480014

In Port Royal, South Carolina )

Atlanta, Georgia ) FRN 0006-1527-55

## FORFEITURE ORDER

**Adopted: July 22, 2004 Released: July 26, 2004**

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1\. In this *Forfeiture Order* ("*Order*"), we issue a monetary
forfeiture in the amount of eight thousand dollars (\$8,000) to Barnacle
Broadcasting Company, Ltd ("Barnacle") for willful violation of Section
17.51 of the Commission's Rules ("Rules").[^1] The violation involves
Barnacle's failure to exhibit all red obstruction lighting from sunset
to sunrise on its antenna structure \# 1063961 registered in Port Royal,
South Carolina.

2\. On January 21, 2003, the Atlanta Office issued a *Notice of Apparent
Liability ("NAL"*) to Barnacle for a forfeiture in the amount of ten
thousand dollars (\$10,000) citing willful and repeated violation of
Section 17.51 of the Commission's Rules.[^2] Barnacle filed its response
to the *NAL* on February 27, 2003.

#### II. BACKGROUND

3\. On November 25, 2002, in response to a report of an unlighted tower,
a Commission field agent from the Commission's Atlanta Field Office
("Atlanta Office") inspected Barnacle's antenna structure and determined
that none of the red obstruction lights were lighted during evening
hours. The FAA had no record of any report of a lighting outage for this
structure. The agent determined that Barnacle was the owner of the 382
meter (1253 feet) tall antenna structure, ASR \# 1063961. This violation
resulted in the Atlanta Office's issuance of an *NAL* to Barnacle on
January 21, 2003.

4\. Barnacle replied to the *NAL* admitting that it owns the instant
structure. However, Barnacle asserted multiple reasons why the
forfeiture should be reduced or cancelled. Barnacle stated that it did
not know of the light outage, therefore the violation was not willful.
Further, Barnacle asserts that it was not repeated because a NOTAM was
issued on the second day. Barnacle also contended: it had no prior
offenses; it was not a licensee, or applicant for a license, now or at
the time of the violation; it never received notice from the Commission
of its obligations under 303(q) of the Act or Part 17 of the Rules; the
structure is in an area prone to lightning damage; and it acted promptly
to repair the structure upon notification by the Commission Agent.

5\. Finally, Barnacle requested cancellation of the forfeiture asserting
an inability to pay the forfeiture. Barnacle, however, submitted only a
Balance Sheet, Mortgage Note and Income Statement for 2002 created by
the President of Barnacle as documentation in support of its request.

**III. DISCUSSION**

6\. The proposed forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934, as
amended ("Act"),[^3] Section 1.80 of the Rules,[^4] and *The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC Rcd 17087
(1997), *recon. denied*, 15 FCC Rcd 303 (1999) ("*Policy Statement*").
In examining Barnacle's response, Section 503(b) of the Act requires
that 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 such other matters as justice may require.[^5]

7\. Section 17.51 of the Rules requires that all red obstruction
lighting be exhibited from sunset to sunrise unless otherwise specified.
Further, Section 17.47 of the Commission's Rules[^6] requires that the
owner of a registered antenna structure observe the lights at least once
each 24 hours either visually or by observing an automatic indicator; or
alternatively provide and maintain an automatic alarm system designed to
detect any failure of the lights and to notify the owner of the failure.
Barnacle states its structure is registered and that it did not meet the
owner's obligations; rather, it chose to rely upon others to inform it
of any light outage. Barnacle does not provide any evidence that its
choice met the requirements of Section 17.47.

8\. Barnacle states that those upon whom it relied did not inform
Barnacle of the lighting outage but provides no evidence that there was
a procedure in place for these others to monitor the lights and notify
Barnacle in the event the lights were out. Further, Barnacle contends
that because it was unaware of the light outage, the violation was not
willful. Barnacle cites the Review Board holding in *David R. Price,* 70
RR 2d 803 (Rev. Bd. 1992) for the erroneous proposition that the
definition of willful requires actual notice of a violation by the
licensee in order to be willful. We disagree. The Review Board holding
in *Price* is based upon an entirely different set of facts in which the
licensee's towers were not lighted because the licensee had not paid its
electric bill. Additionally, in *Price,* the Review Board noted that
Price misconstrued the definition of willful, when he argued that his
failure to light the towers can not be willful if complying with the
lighting requirements is impossible citing Section 312(f)(1) of the
Act[^7] which states:

The 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 authorized by this Act
or by a treaty ratified by the United States.

Further, in *Southern California Broadcasting Co*.[^8], the Commission
held that Section 312(f)(1) of the Act also applies to Section 503(b).
Accordingly, Barnacle need not have had actual knowledge that the lights
were out to be found to have committed a "willful" violation. Barnacle
neither mentions *Southern California*, nor attempts to distinguish it.
Nor does Barnacle mention or distinguish *Eure Family Limited
Partnership,* 16 FCC Rcd 21302 (Enf. Bur. 2001), *recon. denied,* 17 FCC
Rcd 7402 (Enf. Bur. 2002), *review denied,* 17 FCC Rcd 21861,
21863-21864 (2002), which is apposite to the instant case.[^9] Based on
the FCC agent's observations during his November 25 investigation, and
Commission precedent, we find that Barnacle willfully[^10] violated
Section 17.51 of the Rules. Because we conclude that Barnacle's
violation was willful, we need not address whether it was repeated.[^11]

9\. We also reject Barnacle's assertions that, under Section 303(q) of
the Act,[^12] as a non-licensee antenna structure owner, it was not
responsible for following Commission Rules and that the Commission had
an obligation to inform it as to its duties as owner of the antenna
structure. The notification to tower owners for this rule was given
through publication in the Federal Register upon promulgation of Section
17.51 of the Commission's Rules.[^13] Further, and more to the point,
Barnacle's President registered the antenna structure with the FCC on
April 28, 1999, and included the FAA study number 98-ASO-4417-06, which
provides the lighting and painting requirements necessary for an antenna
structure to be deemed no hazard to air navigation. In other words,
Barnacle provided the FAA lighting and painting requirements to the FCC,
thus making clear he had notice of such requirements.

10\. Moreover, Barnacle, as a former licensee was responsible for
knowing both its obligations under the Act and the Commission's
Rules,[^14] and that Part 17 of the Rules applied to licensees,
permittees and tower owners*.* The Commission's Rules[^15] hold Barnacle
responsible for compliance and do not excuse ignorance of those
requirements.[^16] Barnacle, as a former licensee, cannot now
conveniently disavow knowledge after his license terminated. As a
current tower owner, Barnacle is responsible for both knowing the
Commission's Rules and complying with them.[^17] In the instant case,
Barnacle, as a licensee, was subject to the very rules, Section 303(q)
of the Act and Section 17.51 of the Rules, of which he now claims to
have had no notice. Accordingly, Barnacle's argument that its violation
was mitigated because it was not informed by the Commission of its
obligation to comply with Section 303(q) of the Act and Part 17 of the
Commission Rules is without merit.[^18]

11\. Nor can Barnacle's remedial efforts to establish a system to assure
compliance result in a cancellation or reduction of the forfeiture.
Barnacle's remedial efforts to correct the violation, after the
violation was discovered by the Commission are not a mitigating factor.
See *Seawest Yacht Brokers*, 9 FCC Rcd 6099 (1994), "corrective action
taken to come into compliance with Commission rules or policy is
expected, and does not nullify or mitigate any prior forfeitures or
violations." See also *Station KGVL, Inc.,* 42 FCC 2d 258, 259 (1973).

12\. Barnacle's request for reduction of the forfeiture based upon its
inability to pay was not accompanied by its tax returns or other
satisfactory documentation. The *NAL* gave Barnacle specific
requirements about what documents it needed to submit that would support
a claim of inability to pay.[^19] Barnacle provided no reliable
information regarding its revenues. The Commission generally relies on
gross revenues as the best evidence of inability to pay.[^20]
Accordingly, we are not persuaded by Barnacle's financial hardship claim
and thus, we find that there is no basis to reduce the assessed
forfeiture amount due to inability to pay.

13\. We have examined Barnacle'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 Barnacle failed to
exhibit all red obstruction lighting on its tower from sunset to sunrise
in willful violation of Section 17.51 of the Rules. We have also
reviewed the Commission's database regarding prior violations and find
that Barnacle has no record with the Commission of a prior violation.
Considering the prior record of Barnacle Broadcasting Company, Ltd, we
agree that the forfeiture amount should be reduced. Accordingly, we
reduce the \$10,000 forfeiture proposed by the *Notice of Apparent
Liability* to \$8,000 on the basis of a history of overall compliance
with Commission Rules.

**IV. ORDERING CLAUSES**

14\. 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,[^21]
Barnacle Broadcasting Company, Ltd **IS LIABLE FOR A MONETARY
FORFEITURE** in the amount of eight thousand dollars (\$8,000) for
willful violation of Section 17.51 of the Rules.

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.[^22] 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. 200332480014 and FRN 0006-1527-55.
Requests for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Group, 445 12th Street, S.W., Washington,
D.C. 20554.[^23]

16\. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
by First Class and Certified Mail Return Receipt Requested to Mr. Pegram
Harrison, President, Barnacle Broadcasting Company, Ltd., 3 Yonah Drive,
Atlanta, GA 30309 and its Counsel, Benjamin J. Lambiotte, GARVEY
SCHUBERT BARER, 1000 Potomac Street, N.W., Fifth Floor, Washington, D.C.
20007.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 17.51.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332480014 (Enf. Bur., Atlanta Office, released January 21, 2003).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 47 C.F.R. § 17.47.

[^7]: 47 U.S.C. § 312(f)(1).

[^8]: See, *Southern California Broadcasting Co*., 6 FCC Rcd 4387
    (1991).

[^9]: In *Eure*, *supra,* the licensee attempts to assign blame for an
    unlit tower to an agent with whom Eure contracted to receive notice
    of a tower light outage. The Commission specifically declined to
    relieve the licensee of its obligations under the rules due to an
    agent's failure to perform its duties.

[^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 Co*., *supra*.

[^11]: 47 U.S.C. § 312 (a)(4) provides administrative sanctions "for
    willful *or* repeated violation of, or willful *or* repeated failure
    to observe any provision of this Act or any rule or regulation of
    the Commission authorized by this Act or by a treaty ratified by the
    United States." (Emphasis added).

[^12]: 47 U.S.C. § 303(q) provides in pertinent part, that a tower owner
    is responsible for maintaining required tower painting and licensing
    when the owner is neither a Commission licensee or permittee.

[^13]: See 61 FR 4364, Feb. 6, 1996.

[^14]: 47 C.F.R. §§ 0.1, *et. seq.*

[^15]: See note 6, *supra*.

[^16]: See *Eure Family Limited Partnership*, *supra*.

[^17]: *Id*.

[^18]: Further, we note that Barnacle's President states that he was
    "generally aware" of the obligations of 303(q) and Part 17 from the
    period when Barnacle held an FM station license.

[^19]: *NAL*, supra, ¶ 12. These include 3 years tax returns; financial
    documents prepared to generally accepted accounting practices; or
    other reliable and objective documentation that accurately reflects
    petitioner's current financial status.

[^20]: *See Forfeiture Policy Statement,* 12 FCC Rcd, at 17106-07, ¶ 43.
    *See also PJB Communications of Virginia, Inc.* 7 FCC Rcd 2088,
    2089, ¶ 8 (1992).

[^21]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^22]: 47 U.S.C. § 504(a).

[^23]: *See* 47 C.F.R. § 1.1914.