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 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 Dead  Air  Broadcasting  Company,  Inc. 
 Owner  of  Unregistered  Antenna  Structure  Dillon,  Montana 


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 File  Number:  EB-  03-  ST-  090 
 NAL/  Acct.  No.  200432980001  FRN  0010640480 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Released:  March  29,  2004 
 By  the  District  Director,  Seattle  Office,  Enforcement  Bureau: 


 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL),  we  find  that  Dead  Air  Broadcasting  Company,  Inc.  ("  Dead  Air"),  licensee  of  AM  radio  station  KDBM  and  owner  of  an 
 unregistered  antenna  structure  in  Dillon,  Montana,  apparently  willfully  and  repeatedly  violated  Section  17.4(  a)  of  the  Commission's  Rules  (  Rules)  by  failing  to  register  the  antenna  structure.  1  We  conclude, 
 pursuant  to  Section  503(  b)  of  the  Communications  Act  of  1934,  as  amended,  2  that  Dead  Air  is  apparently  liable  for  a  forfeiture  in  the  amount  of  three  thousand  dollars  ($  3,000). 


 II.  BACKGROUND 
 2.  On  May  16,  2002,  an  agent  from  the  Seattle  District  Office  conducted  an  inspection  of  AM  radio  station  KDBM.  At  the  time  of  the  inspection,  no  antenna  structure  registration  number  was  displayed 
 at  the  base  of  the  structure.  The  structure  is  approximately  80  meters  in  height  (265  feet)  and  is  required  to  be  lighted  and  painted.  The  structure  is  located  at  45  1413  north  latitude  and  112  3832  west  longitude. 
 At  the  time  of  the  inspection,  the  Vice  President  for  Dead  Air  could  not  locate  or  produce  a  registration  for  the  subject  tower.  The  structure  is  owned  by  Dead  Air,  the  licensee  of  KDBM. 


 3.  On  June  13,  2002,  the  Seattle  District  Office  issued  a  Notice  of  Violation  (  NOV)  to  Dead  Air,  for  violation  of  Section  17.4(  g)  of  the  Commissions  Rules,  for  failure  to  post  the  ASR  number  at  the 
 base  of  the  structure. 


 1  47  C.  F.  R.    17.4(  a). 
 2  47  U.  S.  C.    503(  b). 
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 4.  On  June  27,  2002,  the  Seattle  District  Office  received  a  response  to  the  NOV.  The  response  stated  that  following  an  extensive  review  of  the  files,  no  current  Antenna  Structure  Registration  number 
 had  been  found.  Evidence  was  found  that  the  previous  owners  filed  an  ASR  application  in  1998,  but  Dead  Air  had  no  confirmation  that  it  was  received.  The  response  further  stated  that  Dead  Air  would  apply  for  an 
 ASR  number  and  post  it  in  accordance  with  the  Rules. 
 5.  On  August  9,  2002,  Dead  Air  submitted  a  supplement  to  the  June  24,  2002,  reply  to  the  NOV,  and  stated  that  Dead  Air  had  completed  a  new  FCC  Form  854  that  duplicated  the  original  registration  that 
 was  submitted  by  the  previous  owners  on  October  28,  1996. 
 6.  On  March  26,  2003,  agents  from  the  Seattle  District  Office  conducted  an  inspection  of  the  KDBM  transmitter  site.  At  the  time  of  the  inspection,  no  antenna  structure  registration  number  was 
 displayed  at  the  base  of  the  structure. 
 7.  A  follow-  up  search  of  the  Antenna  Structure  Registration  database  on  April  3,  2003,  and  April  4,  2003,  revealed  no  registration  for  the  antenna  structure. 


 8.  On  October  22,  2003,  agents  from  the  Seattle  District  Office  conducted  an  inspection  of  the  KDBM  transmitter  site.  At  the  time  of  the  inspection,  no  antenna  structure  registration  number  was 
 displayed  at  the  base  of  the  structure. 
 9.  A  follow-  up  search  of  the  Antenna  Structure  Registration  database  on  February  3,  2004,  revealed  no  registration  for  the  antenna  structure. 


 III.  DISCUSSION 
 10.  Section  503(  b)  of  the  Act  provides  that  any  person  who  willfully  or  repeatedly  fails  to  comply  substantially  with  the  terms  and  conditions  of  any  license,  or  willfully  or  repeatedly  fails  to  comply  with  any 
 of  the  provisions  of  the  Act  or  of  any  rule,  regulation  or  order  issued  by  the  Commission  there  under,  shall  be  liable  for  a  forfeiture  penalty.  3  The  term  "willful"  as  used  in  Section  503(  b)  has  been  interpreted  to  mean 
 simply  that  the  acts  or  omissions  are  committed  knowingly  and  the  term  "repeated"  means  the  commission  or  omission  of  the  Act  more  than  once  or  for  more  than  one  day.  4 


 11.  Generally,  the  Rules  require  that  antenna  structures  that  are  greater  than  200  feet  in  height  comply  with  painting  and  lighting  specifications  designed  to  ensure  air  safety.  5  Antenna  structure  owners 
 3  47  U.  S.  C.    503(  b). 
 4  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',  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."  See  Southern  California  Broadcasting  Co.,  6  FCC  Rcd  4387  (1991).  Section  312(  f)(  2)  of  the  Act,  47  U.  S.  C.    312(  f)(  2), 
 which  also  applies  to  Section  503(  b),  provides:  "[  t]  he  term  "repeated",  when  used  with  reference  to  the  commission  or  omission  of  any  act,  means  the  commission  or  omission  of  such  act  more  than  once  or,  if  such  commission  or  omission 
 is  continuous,  for  more  than  one  day." 
 5  47  C.  F.  R.    17.21. 
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 must  register  antenna  structures  with  the  Commission  and  post  ASR  numbers  at  the  base  of  antenna  structures  to  allow  for  easy  contact  if  problems  arise.  6  The  Rules  requiring  antenna  structure  registration 
 for  all  antenna  structures  that  may  pose  a  hazard  to  air  navigation  have  been  in  effect  since  1996.  7  The  Commission  has  repeatedly  advised  antenna  structure  owners  that  all  existing,  unregistered  antenna 
 structures  subject  to  the  Rules  must  be  registered  immediately  or  the  owners  will  face  a  monetary  forfeiture  or  other  enforcement  action.  8 


 12.  Specifically,  Section  17.4(  a)  of  the  Rules  requires  that  the  owner  of  any  proposed  or  existing  antenna  structure  that  requires  notice  of  proposed  construction  to  the  Federal  Aviation  Administration 
 must  register  the  structure  with  the  Commission.  Dead  Air  owns  the  antenna  structure  used  by  AM  radio  station  KDBM  in  Dillon,  Montana.  This  structure  requires  notice  of  proposed  construction,  and  therefore, 
 Commission  registration,  because  the  structures  height  exceeds  200  feet.  9  Dead  Air  is  aware  of  the  responsibility  and  obligation  to  register  the  antenna  structure.  Dead  Air  received  a  Notice  of  Violation  in 
 June  of  2002,  for  failing  to  register  the  structure  and  Dead  Airs  President  represented  to  the  Commission  in  June  of  2002,  that  the  structure  would  be  registered.  As  of  February  3,  2004,  the  antenna  structure  had 
 not  been  registered. 
 13.  Based  on  the  evidence  before  us,  we  find  that  Dead  Air  apparently  willfully  and  repeatedly  violated  Section  17.  4(  a)  of  the  Rules  by  failing  to  register  its  antenna  structure  with  the  Commission. 


 14.  Pursuant  to  The  Commission's  Forfeiture  Policy  Statement  and  Amendment  of  Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines  (  Forfeiture  Policy  Statement)  10  and  Section  1.80  of 
 the  Rules,  11  the  base  forfeiture  amount  for  failure  to  file  required  forms  or  information  (e.  g.,  failure  to  file  an  antenna  registration  form)  is  $3,000.  In  assessing  the  monetary  forfeiture  amount,  we  must  also  take 
 into  account  the  statutory  factors  set  forth  in  Section  503(  b)(  2)(  D)  of  the  Act,  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.  12  Considering  the  entire  record  and  applying  the  factors  listed  above,  this  case  warrants  a  $3,000  forfeiture. 


 6  47  C.  F.  R.    17.4. 
 7  Antenna  structure  owners  were  required  to  register  existing  antenna  structures  during  a  two-  year  filing  period  between 
 July  1,  1996  and  June  30,  1998,  and  to  register  new  antenna  structures  prior  to  construction.  Streamlining  the  Commission's  Antenna  Structure  Clearance  Procedure,  11  FCC  Rcd  4272  (1995). 


 8  Subsequent  to  the  expiration  of  the  filing  period,  the  Commission  staff  issued  a  Public  Notice  warning  antenna 
 structure  owners  to  register  any  unregistered  antenna  structures  subject  to  our  requirements  immediately  or  face  possible  monetary  forfeitures  or  other  enforcement  action.  Public  Notice,  No-  Tolerance  Policy  Adopted  for 


 Unregistered  Antenna  Structures,  1999  WL  10060  (WTB  rel.  Jan.  13,  1999).  In  addition,  in  June  and  July  1999,  the  Wireless  Telecommunications  Bureau  sent  letters  to  licensees  informing  them  that  the  Commission  had  no  valid 
 registration  for  their  antenna  site  and  that  owners  and,  to  the  extent  they  were  liable,  tenants  could  face  monetary  forfeitures  for  antenna  structures  that  remained  unregistered. 


 9  47  C.  F.  R.    17.7(  a). 
 10  12  FCC  Rcd  17087  (1997),  recon.  denied  15  FCC  Rcd  303  (1999). 
 11  47  C.  F.  R.    1.80. 
 12  47  U.  S.  C.    503(  b)(  2)(  D). 
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 ORDERING  CLAUSES 
 15.  Accordingly,  IT  IS  ORDERED  THAT,  pursuant  to  Section  503(  b)  of  the  Act,  13  and  Sections  0.111,  0.311  and  1.80  of  the  Rules,  14  Dead  Air  Broadcasting  Company,  Inc.,  is  hereby  NOTIFIED  of  this 
 APPARENT  LIABILITY  FOR  A  FORFEITURE  in  the  amount  of  three  thousand  dollars  ($  3,000)  for  willful  and  repeated  violation  of  Section  17.  4(  a)  of  the  Rules  by  failing  to  register  its  antenna  structure  with 
 the  Commission.  15 
 16.  IT  IS  FURTHER  ORDERED  THAT,  pursuant  to  Section  1.80  of  the  Rules,  within  thirty  days  of  the  release  date  of  this  NAL,  Dead  Air  Broadcasting  Company,  Inc.,  SHALL  PAY  the  full  amount  of  the 
 proposed  forfeiture  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 


 17.  .  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.  and  FRN  referenced  above.  Requests  for  payment  of  the  full  amount  of  this  NAL 
 under  an  installment  plan  should  be  sent  to:  Chief,  Revenue  and  Receivables  Operations  Group,  445  12th  Street,  S.  W.,  Washington,  D.  C.  20554.  16  . 


 18.  The  response,  if  any,  must  be  mailed  to  Federal  Communications  Commission,  Office  of  the  Secretary,  445  12  th  Street  S.  W.,  Washington  D.  C.  20554,  Attn:  Enforcement  Bureau-  Spectrum  Enforcement 
 Division  and  MUST  INCLUDE  THE  NAL/  Acct.  No.  referenced  above. 
 19.  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  petitioners  current  financial 
 status.  Any  claim  of  inability  to  pay  must  specifically  identify  the  basis  for  the  claim  by  reference  to  the  financial  documentation  submitted. 


 20.  Under  the  Small  Business  Paperwork  Relief  Act  of  2002,  Pub  L.  No.  107-  198,  116  Stat.  729  (June  28,  2002),  the  FCC  is  engaged  in  a  two-  year  tracking  process  regarding  the  size  of  entities  involved  in 
 forfeitures.  If  you  qualify  as  a  small  entity  and  if  you  wish  to  be  treated  as  a  small  entity  for  tracking  purposes,  please  so  certify  to  us  within  thirty  (30)  days  of  this  NAL,  either  in  your  response  to  the  NAL  or  in 
 a  separate  filing  to  be  sent  to  the  Spectrum  Enforcement  Division.  Your  certification  should  indicate  whether  you,  including  your  parent  entity  and  its  subsidiaries,  meet  one  of  the  definitions  set  forth  in  the  list 
 provided  by  the  FCCs  Office  of  Communications  Business  Opportunities  (OCBO)  set  forth  in  Attachment 
 13  47  U.  S.  C.    503(  b). 
 14  47  C.  F.  R.    0.111,  0.311,  1.80. 
 15  47  C.  F.  R.    17.4(  a). 
 16  47  C.  F.  R.    1.1914. 
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 A  of  this  Notice  of  Apparent  Liability.  This  information  will  be  used  for  tracking  purposes  only.  Your  response  or  failure  to  respond  to  this  question  will  have  no  effect  on  your  rights  and  responsibilities  pursuant 
 to  Section  503(  b)  of  the  Communications  Act.  If  you  have  questions  regarding  any  of  the  information  contained  in  Attachment  A,  please  contact  OCBO  at  (202)  418-  0990. 


 21.  IT  IS  FURTHER  ORDERED  THAT  a  copy  of  this  NOTICE  OF  APPARENT  LIABILITY  shall  be  sent  by  Certified  Mail,  Return  Receipt  Requested,  and  regular  mail,  to  Dead  Air  Broadcasting 
 Company,  Inc.,  610  North  Montana,  Dillon,  Montana  59725. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Dennis  Anderson  District  Director,  Seattle  Office 
 Enclosure:  FCC  List  of  Small  Entities,  October  2002 
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