**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Mortenson Broadcasting Co. ) File No. EB-02-CF-338

) NAL/Acct. No. 200232340002

Owner of Antenna Structure ) FRN 0004-1688-29

Registration No. 1020434 )

South Charleston, West Virginia )

## FORFEITURE ORDER 

**Adopted: May 9, 2003 Released: May 13, 2003**

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
    Mortenson Broadcasting Co. ("Mortenson"), owner of an antenna
    structure with Antenna Structure Registration ("ASR") number 1020434
    in South Charleston, West Virginia, for willful and repeated
    violation of Section 17.51(a) of the Commission's Rules
    ("Rules").[^1] The noted violation involves Mortenson's failure to
    exhibit red obstruction lighting on its antenna structure between
    sunset and sunrise.

2.  On July 9, 2002, the Commission's Columbia, Maryland Field Office
    ("Columbia Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Mortenson for a forfeiture in the amount of
    ten thousand dollars (\$10,000).[^2] Mortenson filed a response to
    the *NAL* on August 7, 2002.

####  II. BACKGROUND

3.  On May 15, 2002, at approximately 9:20 p.m., agents from the
    Columbia Office observed that the obstruction lighting on an antenna
    structure with ASR number 1020434 in South Charleston, West
    Virginia, was extinguished. Mortenson is the registered owner of
    this antenna structure and uses it in conjunction with the operation
    of its licensed station, WSCW(AM), South Charleston, West Virginia.

4.  On May 16, 2002, at approximately 9:30 a.m., one of the agents
    visited the WSCW studio and determined that station personnel were
    unaware that the tower had been unlit the previous night. Chris
    Colagrosso, WSCW's program director and designated chief operator,
    initially told the agent that he had observed the tower lights at
    approximately 6:00 a.m. that morning and that the lights were
    functioning properly at that time. Subsequently, however, Mr.
    Colagrosso stated that perhaps he had observed the lights on an
    adjacent antenna structure. The agent advised Mr. Colagrosso and
    WSCW's station manager that Mortenson was required to notify the FAA
    of the unlit tower immediately if the outage was not corrected
    within 30 minutes.

5.  On May 23, 2002, the agent contacted the Federal Aviation
    Administration ("FAA") Flight Service Center in Elkins, West
    Virginia. FAA personnel told the agent that Mortenson notified the
    FAA of the light outage at 8:14 a.m. on May 17, 2002.

6.  On July 9, 2002, the Columbia Office issued an *NAL* for a \$10,000
    forfeiture to Mortenson for failing to exhibit obstruction lighting
    on its antenna structure between sunset and sunrise in willful and
    repeated violation of Section 17.51(a) of the Rules. In its response
    to the *NAL*, Mortenson argues that no forfeiture is warranted for
    this violation because the violation was neither willful nor
    repeated. Mortenson asserts that the violation was not willful
    because the lighting failure was the result of an equipment
    malfunction that was beyond its control, the tower lighting is
    monitored visually each day by station personnel and through use of
    an automatic alarm system, and its engineer attempted to correct the
    problem as quickly as possible. Mortenson asserts that the violation
    was not repeated because the tower was unlit for only one day. In
    support of these assertions, Mortenson provides written statements
    from Mr. Colagrosso and Lester Lovejoy, WSCW's chief engineer. Mr.
    Colagrosso states that he believes that the FCC agent who visited
    WSCW was mistaken in reporting that the tower lights were out on the
    evening of May 15, 2002. In this regard, Mr. Colagrosso asserts that
    he observed the tower lights on the morning of May 16, 2002 and was
    "almost positive" that the beacon was flashing, and that the
    automatic alarm monitor did not indicate any problem with the
    lights. Mr. Colagrosso further states that after speaking with the
    FCC agent, he asked Mr. Lovejoy to check the lights, and that he
    assumed Mr. Lovejoy would notify the FAA if there was a problem with
    the lights. Mr. Lovejoy states that on the evening of May 16, 2002,
    he checked the tower lights and confirmed that the lights were out,
    but he was unable to correct the outage at that time. Mr. Lovejoy
    asserts that he thought there would be no harm in waiting until the
    next morning to notify the FAA of the light outage because there was
    another lit tower about 250 feet away from the WSCW tower.[^3]
    Further, Mr. Lovejoy reports that the outage was corrected the
    following morning, that he has checked the alarm system to ensure
    that it is working properly, and that he has scheduled regular
    routine checks and maintenance on the tower lighting and reporting
    equipment. Finally, Mortenson argues that no harm resulted from the
    lights being out for one day and that its overall history of
    compliance with the Commission's rules supports cancellation of the
    forfeiture.

```{=html}
<!-- -->
```
III. **DISCUSSION**

```{=html}
<!-- -->
```
7.  The forfeiture amount in this case was assessed in accordance with
    Section 503(b) of the Communications Act of 1934, as amended,
    ("Act"),[^4] Section 1.80 of the Rules,[^5] 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 Mortenson'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 other such matters as justice may
    require.[^6]

8.  Section 17.51(a) of the Rules requires that red obstruction lighting
    on an antenna structure be exhibited from sunset to sunrise. On the
    morning of May 16, 2002, an FCC agent informed Mortenson employees
    that the tower lighting was not operating. Mortenson admits in its
    response to the *NAL* that it did not correct the light outage or
    report the outage to the FAA until the morning of May 17, 2002.
    Accordingly, we conclude that Mortenson violated Section 17.51(a) of
    the Rules.

9.  Mortenson argues that the violation of Section 17.51(a) was not
    "willful." We disagree. The term "willful," as used in Section
    503(b) of the Act, does not require a finding that the rule
    violation was intentional or that the violator was aware that it was
    committing a rule violation.[^7] Rather, the term "willful" simply
    requires that the violator knew it was taking the action in
    question, irrespective of any intent to violate the Commission's
    rules.[^8] We think that it is irrelevant that Mr. Colagrossa may
    have believed that the tower light was functioning when he observed
    the tower at 6:00 a.m. on the morning of May 16, 2003, or that the
    light outage may have been the result of an equipment malfunction.
    At approximately 9:30 that morning, an FCC agent informed Mr.
    Colagrossa of the light outage and advised Mr. Colagrossa to notify
    the FAA immediately if the outage could not be corrected within 30
    minutes. Thus, regardless of whether Mr. Colagrossa believed that he
    had seen the lights operating that morning or whether he had
    received an alert from the tower's automatic alarm system, the FCC
    agent put him on specific notice that there was a light outage or
    potential light outage. Mr. Colagrossa made a conscious and
    deliberate decision not to investigate the outage report immediately
    or to notify the FAA immediately, as advised by the FCC agent. In
    this regard, we are not persuaded by Mortenson's claim that its
    engineer attempted to correct the problem as quickly as possible.
    According to Mr. Colagrosso, Mr. Lovejoy said that he could not
    check the lighting until evening as the lights would be off until
    then. Although it is true that the tower lighting was not scheduled
    to come on until sunset, we see no reason, and Mortenson offers no
    explanation, why Mortenson could not have inspected the tower
    lighting during the day to determine whether it was functioning
    properly. Tower owners routinely inspect and perform maintenance on
    lighting systems, including nighttime lighting systems, during
    daytime hours.

10. Furthermore, when Mortenson's engineer did confirm the light outage
    that evening, he failed to notify the FAA of the outage immediately.
    That Mr. Lovejoy believed that there would be no harm in waiting
    until the next morning to notify the FAA of the lighting outage
    because there was a lit tower nearby does not excuse his failure to
    notify the FAA of the lighting outage immediately, as required by
    Section 17.48(a) of the Rules. Moreover, the Commission has long
    held that licensees and other Commission regulatees are responsible
    for the acts and omissions of their employees.[^9] Thus, Mortenson
    is responsible for Mr. Lovejoy's failure to notify the FAA.
    Accordingly, based on the record before us, we conclude that
    Mortenson willfully violated Section 17.51(a) of the Rules.

11. We find that Mortenson's violation of Section 17.51(a) was also
    repeated.[^10] A violation is "repeated" within the meaning of
    Section 503(b) of the Act if it occurs more than once or it
    continues for more than one day.[^11] Mortenson's violation of
    Section 17.51(a) was repeated because it continued from at least the
    evening of May 16, 2002, when Mortenson observed the light outage,
    until the morning of May 17, 2002, when Mortenson finally contacted
    the FAA. Thus, we conclude that the record supports a finding that
    Mortenson's violation of Section 17.51(a) was repeated.

12. Mortenson further argues that no harm resulted from the tower lights
    being out for one day. We think it is irrelevant that there is no
    indication that air safety was actually compromised by the lighting
    outage. The potential hazard to air navigation presented by the
    unlit tower raises serious safety of life concerns justifying a
    forfeiture.[^12] However, after considering Mortenson's overall
    history of compliance with the Commission's rules, we conclude that
    reduction of the proposed forfeiture from \$10,000 to \$8,000 is
    warranted.

13. We have examined Mortenson'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
    Mortenson willfully and repeatedly violated Section 17.51(a) of the
    Rules, but we reduce the forfeiture proposed for this violation from
    \$10,000 to \$8,000.

####  IV. ORDERING CLAUSES

14. Accordingly, **IT IS ORDERED** that, pursuant to Section 503 of the
    Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^13]
    Mortenson Broadcasting Co. **IS LIABLE FOR A MONETARY FORFEITURE**
    in the amount of eight thousand dollars (\$8,000) for willful and
    repeated violation of Section 17.51(a) 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.[^14] 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. 200232340002 and FRN
    0004-1688-29. 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.[^15]

16. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by first class mail and certified mail return receipt requested to
    Mortenson Broadcasting Co., 3270 Blazer Parkway, Suite 101,
    Lexington, Kentucky 40509, and to its counsel, Jerrold Miller, Esq.,
    Miller & Miller, P.C., 1990 M Street, N.W., Suite 760, Washington,
    D.C. 20036.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 17.51(a).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200232340002 (Enf. Bur., Columbia Office, released July 9, 2002).

[^3]: Mr. Colagrosso states that when he learned on the morning of May
    17, 2002 that Mr. Lovejoy had not notified the FAA of the light
    outage, he immediately did so.

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: 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.*, 6 FCC Rcd 4387
    (1991) ("*Southern California*").

[^8]: *Id*.

[^9]: *See MTD, Inc*., 6 FCC Rcd 34, 35 (1991); *Wagenvoord Broadcasting
    Co*., 35 FCC 2d 361 (1972).

[^10]: Section 503(b)(1) of the Act provides that a forfeiture penalty
    may be imposed if the violation is either willful or repeated. 47
    U.S.C. § 503(b)(1).

[^11]: Section 312(f)(2) of the Act provides that "\[t\]he term
    'repeated,' ... means the commission or omission of such act more
    than once or, if such commission or omission is continuous, for more
    than one day." 47 U.S.C. § 312(f)(2). *See* *Southern California*, 6
    FCC Rcd at 4388.

[^12]: *Cf. AT&T Wireless Services, Inc.*, 17 FCC Rcd 21866, 21871
    (2002) (finding it irrelevant that there was no indication that air
    safety was actually compromised by unpainted coaxial cable on a
    tower because the potential hazard to air navigation presented by
    the unpainted cable raised serious safety of life concerns
    justifying a \$10,000 forfeiture).

[^13]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^14]: 47 U.S.C. § 504(a).

[^15]: *See* 47 C.F.R. § 1.1914.