Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-07-DV-196       |
|                                  |   |                                 |
| Western Slope Communications,    | ) | NAL/Acct. No.: 200832800001     |
| LLC                              |   |                                 |
|                                  | ) | FRN: 0004259552                 |
| Antenna Structure Registrant     |   |                                 |
|                                  | ) |                                 |
| Rifle, CO                        |   |                                 |
|                                  | ) |                                 |
| ASR \# 1023390                   |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## FORFEITURE ORDER

**Adopted: May 28, 2008 Released: May 30, 2008**

By the Regional Director, Western Region, Enforcement Bureau:

# I. INTRODUCTION

1.  In this Forfeiture Order ("*Order*"), we issue a monetary forfeiture
    in the amount of thirteen thousand dollars (\$13,000) to Western
    Slope Communications, LLC, ("Western Slope") owner of antenna
    structure number 1023390, near Rifle, Colorado, for repeated
    violation of Section 303(q) of the Communications Act of 1934, as
    amended, (\"Act\"),[^1] and Sections 17.51(a), 17.47(a), 17.48, and
    17.57 of the Commission\'s Rules (\"Rules\").[^2] On December 7,
    2007, the Enforcement Bureau's Denver Office issued a Notice of
    Apparent Liability for Forfeiture ("*NAL*") to Western Slope in the
    amount of \$13,000 after determining that Western Slope apparently
    repeatedly failed to comply with the antenna structure registration
    ("ASR") lighting, monitoring, record keeping, and notification
    requirements specified for antenna structure number 1023390. In this
    *Order*, we consider Western Slope's arguments that the proposed
    forfeiture would pose an undue hardship, that it made a good faith
    effort to meet its regulatory obligations, that it corrected the
    violation once notified of it, and that it has a history of
    compliance with the Commission's Rules.

# II. BACKGROUND

2.  Antenna structure number 1023390 is an antenna tower of 84.0 meters
    (275.6 feet) in height above ground. According to the antenna
    structure registration (\"ASR\") for antenna structure number
    1023390, the structure is required to be painted and lit in
    accordance with specific Chapters of the FAA Advisory Circular for
    Obstruction Marking and Lighting.[^3] Specifically, the structure is
    required to be painted,[^4] and have, at its top, a flashing beacon
    equipped with two lamps and red filters, along with at least two
    lamps enclosed in red obstruction light globes[^5] located on a
    level at approximately one-half the overall height of the tower.[^6]
    The lights on antenna structure number 1023390 are required to burn
    continuously or be controlled by a light sensitive device.[^7]

3.  On April 23, 2007, at 6:39 p.m., an email was received by the
    Enforcement Bureau\'s Denver office from a police officer with the
    city of Rifle, Colorado. The email stated that there was a concerned
    citizen in Rifle, Colorado, who had observed a 400 foot tower near
    the citizen\'s home with the top beacon \"out for the last two
    weeks.\" A Denver agent determined the antenna structure to have
    registration number 1023390, registered to David L. Johnson
    (\"Johnson\").

4.  On April 24, 2007, the Denver agent contacted the Federal Aviation
    Administration (\"FAA\") Flight Service Station to determine if the
    tower light outage had been reported. The FAA reported that they had
    not received any information concerning a tower light outage and
    advised that a Notice to Airmen (\"NOTAM\") would be issued
    concerning the reported tower light outage for antenna structure
    number 1023390. The FAA Flight Service Station then issued NOTAM
    number RIL 04/011.

5.  On May 9, 2007 the FCC agent contacted the Rifle Police Department
    about their observations of the tower lights associated with antenna
    registration number 1023390. An officer contacted the Denver agent
    and reported that he had received information indicating that the
    \"top beacon was still out.\" The Denver agent later confirmed that
    the outage was observed, by a Rifle officer, during the night of May
    5, 2007.

6.  On May 9, 2007, at approximately 8:25 a.m., MDT, the Denver agent
    again reported the tower outage to the FAA. The FAA promptly issued
    a NOTAM for antenna structure number 1023390, assigning it reference
    number RIL 05/004. No other NOTAM had been issued since the Denver
    agent first called to report the tower light outage on April 24,
    2007.

7.  On May 15, 2007, Denver agents made several observations of the
    tower structure with registration number 1023390. At approximately
    9:00 p.m., MDT, they observed that all of the tower\'s obstruction
    lighting, top beacon and side lights, had failed.[^8]

8.  On May 16, 2007, Denver agents went to the main studio of KRGS, an
    AM station broadcasting from antenna structure number 1023390, at
    751 Horizon Court, Suite 200, Grand Junction, Colorado, to examine
    any records concerning tower light outages.[^9] Agents conducted a
    review of KRGS(AM)\'s station records with the general manager and
    contract engineer. The general manager provided the KRGS(AM) tower
    light logs for inspection. The last entry was from November
    20, 2006. The agents found no entries in the logs concerning any
    tower outages for the month of April 2007 up to the day of their
    visit on May 16, 2007. The general manager said that he was not
    aware of any lighting problems at the tower site prior to the
    agents\' inspection.

9.  Still on the afternoon of May 16, 2007, Denver agents drove to the
    tower site in Rifle, Colorado, and met with the KRGS(AM) general
    manager and contract engineer. When the remote automatic tower light
    indicator system was checked, it reported no current for the tower
    light system while at the transmitter site. Apparently, this remote
    system, designed to register any tower lighting failures, had not
    been notifying Western Slope. The contract engineer determined the
    comprehensive lighting outage to be a result of a faulty A/C neutral
    wire. While agents were on-site, the contract engineer repaired the
    damaged wire. When the contract engineer covered the photocell, all
    of the lights, top beacon and mid-level side lights, were observed
    by the agents to be working properly. Finally, the contract
    engineer\'s maintenance logs, found at the transmitter site, showed
    the last entry reflecting an on-scene tower light inspection by him
    as being conducted on August 1, 2006.

10. On November 14, 2007, further investigation by the Denver Office
    revealed that Johnson was not the current owner of antenna structure
    number 1023390, despite the fact that Johnson was listed as the
    owner in the Commission\'s ASR database. Johnson was the former
    general manager for KRGS(AM) and was no longer associated with the
    station. A Denver agent contacted the KRGS(AM) general manager to
    determine the current tower owner. The general manager was uncertain
    of the formal name for the structure\'s ownership.

11. On November 16, 2007, the regional manager for Western Slope
    contacted the Denver agent and informed him that Western Slope
    Communications had purchased the land and antenna structure number
    1023390 from Johnson in 1996.

12. On November 20, 2007, the Denver agent queried the FCC\'s ASR
    database, finding that a change in ownership had been completed. The
    data found for antenna structure registration number 1023390
    reflected the owner to be Western Slope Communications, LLC. The
    reference copy of the \"FCC Application for Antenna Structure
    Registration\" (FCC 854 Main Form), file number A0569481, showed
    that an application was made on November 19, 2007, to change the
    ownership.

13. On December 7, 2007, the Denver Office issued a *NAL* in the amount
    of \$13,000 to Western Slope.[^10] In the *NAL*, the Denver Office
    found that Western Slope apparently repeatedly violated Section
    303(q) of the Communications Act of 1934, as amended,
    (\"Act\"),[^11] and Section 17.51(a) of the Rules[^12] by failing to
    exhibit the structure\'s red obstruction lighting from sunset to
    sunrise; and by failing to make observations 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, a violation of Section 17.47(a)
    of the Rules.[^13] The Denver Office found that Western Slope\'s
    failure to make the required observations of the lighting on the
    antenna structure resulted in its failure to notify the nearest
    Flight Service Station of the Federal Aviation Administration
    (\"FAA\") of the outage of the flashing obstruction lights, a
    violation of Section 17.48 of the Rules.[^14] The Denver Office also
    found that Western Slope apparently repeatedly failed to immediately
    notify the Commission of a change in ownership information for
    antenna structure number 1023390, a violation of section 17.57.[^15]
    Western Slope filed a response ("*Response*") on January 7, 2008,
    arguing that the proposed forfeiture would pose an undue hardship,
    that it made a good faith effort to meet its regulatory obligations,
    that it corrected the violation once notified of it, and that it has
    a history of compliance with the Commission's Rules. As to its
    failure to immediately notify the Commission of a change in
    ownership if antenna structure number 1023390, Western Slope argues
    that its violation resulted in no harm and that the forfeiture
    should be cancelled in favor of an admonishment.

# III. DISCUSSION

14. The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^16] Section 1.80 of the
    Rules,[^17] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*.[^18] In examining the *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 other such matters as justice may
    require.[^19]

15. Section 303(q) of the Act states that antenna structure owners shall
    maintain the painting and lighting of antenna structures as
    prescribed by the Commission.[^20] Section 17.51 of the Rules states
    that all red obstruction lighting shall be exhibited from sunset to
    sunrise unless otherwise specified.[^21] According to its ASR
    record, antenna structure number 1023390 is required to have, at its
    top, a flashing beacon equipped with two lamps and red filters,
    along with at least two lamps enclosed in red obstruction light
    globes located on a level at approximately one-half the overall
    height of the tower.[^22] Section 17.47(a) 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.[^23] Section 17.48 of
    the Rules requires the owner of an antenna structure to report
    immediately by telephone or telegraph to the nearest Flight Service
    Station or office of the FAA any observed or otherwise known
    extinguishment or improper functioning or any top steady burning
    light or any flashing obstruction light, regardless of its position
    on the antenna structure, not corrected within 30 minutes.[^24]
    Section 17.57 of the Rules requires the owner of an antenna
    structure to immediately notify the Commission, using FCC Form 854,
    upon any change in structure height or change in ownership
    information.[^25]

16. On April 24, 2007, and May 9, 2007, Denver agents, in response to
    lighting outages on antenna structure number 1023390 reported by
    Rifle, Colorado police officers, contacted the FAA Flight Service
    Station and found that Western Slope had not reported the outages,
    thus requiring the Denver agents to request the issuance of
    NOTAMs.[^26] On May 15, 2007, Denver agents made several
    observations of antenna structure number 1023390 and found, at
    approximately 9:00 p.m., MDT, that all of the tower\'s obstruction
    lighting, top beacon and side lights, had failed. A review of the
    tower light observation logs for antenna structure number 1023390
    revealed that the last tower observation documented in writing
    occurred on November 20, 2006. No entries were found in the logs
    indicating any tower light outages from April 2007 up to the day of
    the agents\' May 16, 2007, inspection. The general manager
    acknowledged to the Denver agents that he was unaware of any
    lighting problems at the tower site prior to the agents\'
    inspection. An inspection of the tower site revealed that the
    tower\'s remote automatic tower light indicator system failed to
    report any current for the tower\'s lighting while at the
    transmitter site and that the remote system, designed to register
    lighting failures, had failed to notify Western Slope.

17. On November 14, 2007, further investigation by the Denver Office
    revealed that Johnson was not the current tower owner despite the
    fact that Johnson was listed as the owner in the Commission\'s ASR
    database. On November 16, 2007, the Regional Manager for Western
    Slope confirmed to the Denver agent that Western Slope had purchased
    the land and antenna structure number 1023390 from Johnson in 1996.

18. In its *Response*, Western Slope does not dispute the facts, as
    detailed above. Western Slope first argues that the proposed
    forfeiture should be reduced or eliminated because it would pose an
    undue hardship on its station KRGS(AM), Rifle, Colorado, which
    broadcasts from antenna structure number 1023390, as the forfeiture
    amount is approximately equal to KRGS(AM)'s projected annual gross
    revenue. To support this assertion, Western Slope included in its
    *Response* the "balance sheet" for KRGS(AM), for the first ten
    months of 2007. We note that in the *NAL*, the Denver Office
    instructed Western Slope, if it sought cancellation or reduction of
    the forfeiture based on inability to pay, to supply:

    \(1\) 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.[^27]

    Western Slope provided data related only to KRGS(AM) and did not
    provide sufficient information related to Western Slope
    Communications, LLC, the owner of the antenna structure that is the
    subject of the *NAL*. Moreover, Western Slope provided data that
    covers only ten months in duration, not the required three years of
    data. Consequently, we find Western Slope provided insufficient
    documentation, to support its request for cancellation or reduction
    of the forfeiture based on its inability to pay.[^28]

19. Western Slope also argues that it made good faith efforts to comply
    with the Rules, by fitting antenna structure number 1023390 with
    "modern remote sensing equipment to notify of lighting outages." As
    detailed above, the remote sensing equipment was apparently
    installed by Western Slope to comply with its obligations under
    Section 17.47(a) of the Rules, which requires that the owner of any
    antenna structure which is registered with the Commission and has
    been assigned lighting specifications 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 any failure. Unfortunately, the equipment
    failed, and Western Slope failed repeatedly over the course of
    nearly one month to notice the lighting failure. Thus, while the
    installation of the equipment shows an effort to comply with Section
    17.47(a), as required, the equipment's inoperability, and Western
    Slope's failure to notice the equipment's inoperability, resulted in
    Western Slope's failure to exhibit the obstruction lighting on
    structure number 1023390 for over three weeks. Had Western Slope
    known of the failure of its monitoring equipment prior to the
    inspection by the Denver agents, and had it taken steps to correct
    equipment malfunctions prior to that inspection, we would be willing
    to consider its good faith argument. [^29] Because Western Slope
    made no efforts to repair the equipment prior to being notified of
    its failure by the Denver Office, it does not qualify for a good
    faith reduction.

20. Western Slope also argues that the proposed forfeiture should be
    reduced or cancelled because it corrected the violations as soon as
    it was notified, and that it cooperated fully with Commission staff.
    Reduction is not warranted as the Commission expects antenna
    structure registrants to correct errors when they are brought to
    their attention.[^30] Western Slope further argues that its station
    KRGS(AM), has a history of compliance with the Commission's Rules
    "under the current licensee." The *NAL*, in this case was issued to
    Western Slope, not KRGS(AM).[^31] Western Slope is commonly owned
    with WS Communications, LLC, which was assessed a \$4,000 forfeiture
    by the Enforcement Bureau in 2000, for willful and repeated
    violation of the Commission's public inspection file requirements
    found in Section 73.3526 of the Rules.[^32] Because of the
    relationship between and the common control of Western Slope and WS
    Communications, LLC, we find that reduction of the forfeiture based
    on a history of compliance is not warranted.[^33]

21. Western Slope also asserts that its failure to notify the Commission
    of the change in ownership of antenna structure number was an
    "inadvertent error" that had "no substantive effect" because
    although the person listed as the structure's owner was the former
    general manager of KRGS(AM), the agents contacted the current
    general manager of station, without delay. We find no merit in this
    argument. The agents contacted current KRGS(AM) personnel because
    they had already investigated Western Slope's other violations of
    the Commission's antenna structure rules, and were aware that
    KRGS(AM) broadcasts from antenna structure number 1023390. The
    Commission has emphasized in the past the importance of correct
    tower registrations in order to be able to contact the tower owner
    in case a problem arises.[^34] Although Western Slope states that
    the former owner was still the correct contact person, he was no
    longer affiliated with Western Slope. Additionally, we are troubled
    by the fact that this violation continued for over 11 years, and was
    not corrected by Western Slope after the inspection by the Denver
    agents in May 2007. Six more months passed until the Denver agents
    contacted Western Slope to determine the correct owner of the
    structure, and only after that inquiry did Western Slope take action
    to comply with Section 17.57 of the Rules. Contrary to Western
    Slope's assertion, inadvertence for failure to notify the Commission
    of the ownership change of the structure does not excuse or mitigate
    its violation of the Rules.[^35] Additionally, Western Slope's
    assertion that its violation of Section 17.57 resulted in no actual
    or potential harm is also unavailing, as it is well established that
    the absence of public harm is not considered a mitigating factor of
    a rule violation." [^36]

22. We have examined the *Response* to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. As a result of our review, we conclude that
    Western Slope repeatedly violated Section 303(q) of the Act, and
    Sections 17.51(a), 17.47(a), 17.48, and 17.57 of the Rules.
    Considering the entire record and the factors listed above, we find
    that no reduction of the proposed \$13,000 forfeiture is warranted.

# IV. ORDERING CLAUSES

23. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended ("Act"), and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, Western Slope
    Communications, LLC, **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of \$13,000 for repeatedly violating Section 303(q) of the
    Act, and Sections 17.51(a), 17.47(a), 17.48, and 17.57 of the
    Rules.[^37]

24. 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.[^38] 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/Account Number and FRN Number referenced above.
    Payment by check or money order may be mailed to Federal
    Communications Commission, P.O. Box 979088, St. Louis, MO
    63197-9000. Payment by overnight mail may be sent to U.S. Bank --
    Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
    Louis, MO 63101. Payment by wire transfer may be made to ABA Number
    021030004, receiving bank TREAS/NYC, and account number 27000001.
    For payment by credit card, an FCC Form 159 (Remittance Advice) must
    be submitted.  When completing the FCC Form 159, enter the
    NAL/Account number in block number 23A (call sign/other ID), and
    enter the letters "FORF" in block number 24A (payment type code).
    Requests for full payment under an installment plan should be sent
    to:  Chief Financial Officer \-- Financial Operations, 445 12th
    Street, S.W., Room 1-A625, Washington, D.C.  20554.   Please contact
    the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
    <ARINQUIRIES@fcc.gov> with any questions regarding payment
    procedures. Western Slope Communications, LLC, shall also send
    electronic notification on the date said payment is made to
    WR-Response@fcc.gov.

25. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Western Slope Communications, LLC, at its address of record, and
    Frank R. Jazzo, its counsel of record.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 U.S.C. § 303(q).

[^2]: 47 C.F.R. §§ 17.47(a), 17.48, 17.51(a), 17.57.

[^3]: FAA Circular Number 70/7460-1J, Chapters 3, 4, 5 and 13.

[^4]: FAA Circular Number 70/7460-1J, Chapters 3 and 13.

[^5]: FAA Circular Number 70/7460-1J, Chapters 4, 5 and 13.

[^6]: FAA Circular Number 70/7460-1J, Appendix 1, Figure 11.

[^7]: FAA Circular Number 70/7460-1J, Chapters 5 and 13.

[^8]: According to the U.S. Naval Observatory, sunset in Rifle,
    Colorado, occurred at 8:18 p.m., MDT, on May 15, 2007.

[^9]: Western Slope is the licensee of KRGS(AM), Rifle, Colorado.

[^10]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200832800001 (Enf. Bur., Western Region, Denver Office, released
    December 7, 2007).

[^11]: 47 U.S.C. § 303(q).

[^12]: 47 C.F.R. § 17.51(a).

[^13]: 47 C.F.R. § 17.47(a).

[^14]: 47 C.F.R. § 17.48.

[^15]: 47 C.F.R. § 17.57.

[^16]: 47 U.S.C. § 503(b).

[^17]: 47 C.F.R. § 1.80.

[^18]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^19]: 47 U.S.C. § 503(b)(2)(E).

[^20]: 47 U.S.C. § 303(q).

[^21]: 47 C.F.R. § 17.51(a).

[^22]: FAA Circular Number 70/7460-1J, Chapters 4 and 5.

[^23]: 47 C.F.R. § 17.47(a).

[^24]: 47 C.F.R. § 17.48.

[^25]: 47 C.F.R. § 17.57.

[^26]: The Denver agents\' requests to issue NOTAMs were done to protect
    the public safety, given that the FAA-mandated lighting on the
    structure was not functioning and the antenna structure was
    therefore a potential hazard to air navigation. We caution antenna
    structure owners, however, that it is incumbent upon them, and not a
    third party, to notify the FAA of any extinguishments or
    malfunctioning lights.

[^27]: *NAL* at para 23.

[^28]: *See SM Radio, Inc.*, 23 FCC Rcd 2429 (2008) ( if a licensee
    argues an inability to pay, it must provide evidence that it cannot
    pay the forfeiture as assessed, despite all of the financial
    resources available to it).

[^29]: *See Radio One Licenses, Inc.,* 18 FCC Rcd 15964, 15965 (2003),
    *recon. denied,* 18 FCC Rcd 25481 (2003).

[^30]: *AT&T Wireless Services, Inc.* 17 FCC Rcd 21866, 21871-76 (2002).

[^31]: We note that our records show that KRGS(AM) received several oral
    warnings from FCC Denver Office agents during an inspection in 2004.

[^32]: 47 C.F.R. § 73.3526. *See WS Communications*, 15 FCC Rcd 10384
    (EB 2000).

[^33]: *See* *Hill Country Real Estate Development*, 18 FCC Rcd 21079
    (EB 2003).

[^34]: *See American Tower Corporation*, 16, FCC Rcd 1282 (2001).

[^35]: *Mercury Broadcasting Company*, 19 FCC Rcd 18909, 18911 (EB
    2004). As the Commission has stated, "inadvertence . . . is at best
    ignorance of the law," and is not considered a basis for reduction
    of a forfeiture. *Southern California Broadcasting*, 6 FCC Rcd 4387,
    4388 (1991).

[^36]: *Pacific Western Broadcasters, Inc.*, 50 FCC 2d 819 (1975). *See
    also, Auburn Broadcasters, Inc.,* 41 FCC 2d 462 (1973); *The
    McLendon Corp.*, 18 FCC 2d 224 (1969).

[^37]: 47 U.S.C. §§ 303(q), 503(b), 47 C.F.R. §§ 0.111, 0.311,
    1.80(f)(4), 17.47(a), 17.48, 17.51.

[^38]: 47 U.S.C. § 504(a).