Federal Communications Commission DA 16-1459 Before the Federal Communications Commission Washington, DC 20554 In the Matter of Pentecostal Temple Development Corporation ) ) ) ) ) ) File No.: EB-FIELDNER-15-00020416 File No.: EB-FIELDNER-15-00020418 NAL/Acct. No.: 201732400001 FRN: 0008656506 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: December 29, 2016 Released: December 30, 2016 By the Regional Director, Region One, Enforcement Bureau: I. INTRODUCTION 1. We propose a penalty against Pentecostal Temple Development Corporation (Pentecostal), licensee of AM Station WGBN, and owner of towers registered under Antenna Structure Registrations (ASR) 1026648 and 1026650 (the “Antenna Structures”), in Lincoln Borough, Pennsylvania, 1 for apparently willfully and repeatedly violating Section 303(q) of the Communications Act of 1934, as amended (“Act”) 2 and Sections 17.23, 17.48(a) and 17.50(a) of the Commission’s rules (“Rules”), 3 by failing to light and repaint the Antenna Structures as often as necessary to maintain good visibility, and for failing to notify the FAA of a lighting outage. Such structures present a significant public safety risk, especially to passing aircraft. Pentecostal has previously been warned that it must repair the required lights and repaint the Antenna Structures to bring them into compliance with the Commission’s rules. Despite Pentecostal’s assurances that it would complete the lighting and marking repairs to the Antenna Structures by the end of May 2016, Commission agents found during an inspection that the Antenna Structures had not been brought into compliance at the end of August 2016. Because Pentecostal failed to bring the Antenna Structures into compliance after multiple warnings, we conclude that Pentecostal is apparently liable for a forfeiture in the amount of twenty-five thousand dollars ($25,000). II. BACKGROUND 2. On October 14, 2015, in response to an anonymous complaint, agents from the Enforcement Bureau’s Philadelphia Office inspected the Antenna Structures. According to the Rules and its ASR database, the Antenna Structures were required to be painted and lit. 4 The agents observed that the paint 1 WGBN owns a total of five antenna towers, four of which are located at this site. However, only two of those towers, the ones registered under ASR 1026648 and 1026650, are at issue in this proceeding. 2 47 U.S.C. § 303(q). 3 47 U.S.C. §§ 17.23 (“[E]ach antenna structure must be painted and lighted in accordance with any painting and lighting requirements prescribed on the antenna structure's registration, or in accordance with any other specifications provided by the Commission.”); 17.48(a) (Tower owner “[s]hall report immediately to the FAA… any observed or otherwise known extinguishment or improper functioning of any top steady burning light or any flashing obstruction light, regardless of its position on the antenna structure, not corrected within 30 minutes”); 17.50(a) (“Antenna structures requiring painting under this part shall be cleaned or repainted as often as necessary to maintain good visibility”). 4 Pursuant to Section 17.21 of the Rules, antenna structures shall be painted and lit when they exceed 60.96 meters in height above ground. 47 C.F.R. § 17.21. The Antenna Structures are 63.1 meters in height above ground and (continued…) Federal Communications Commission DA 16-1459 2 on the Antenna Structures was faded and chipped, significantly reducing the Antenna Structures’ visibility. On January 5, 2016, an agent returned to the site to inspect the Antenna Structures. The agent found that the top level beacon on the tower registered under ASR 1026648 was out, and that one of the two side steady burning obstruction lighting globes was out on the tower registered under ASR 1026650. 3. On February 9, 2016, the Philadelphia Office issued a Notice of Violation (NOV) to Pentecostal. 5 First, the NOV noted that Pentecostal had failed to clean and repaint the Antenna Structures as required to maintain good visibility, in violation of Section 17.50(a) of the Rules. 6 Second, Pentecostal had failed to maintain the required lighting of the Antenna Structures. Under the terms of ASR 1026648 and ASR 1026650, the tower structures were required to have a red obstruction lighting system that includes a top-level beacon and at least two steady burning lamps at the 1/3 and 2/3 levels. As noted above, during the January 5, 2016, inspection, the agent observed that the top-level beacon on the antenna structure registered under ASR 1026648 was extinguished, and that one of the two steady burning lamps at the 2/3 level on the antenna structure registered under ASR 1026650 was extinguished. 7 This constituted a violation of Section 17.23 of the Rules. 8 Finally, Pentecostal had failed to timely file the required Notice to Airmen (NOTAM) about the lighting outage at the tower registered under ASR 1026648, which was a violation of Section 17.48(a). 9 4. On March 4 and March 7, 2016, the Philadelphia Office received Pentecostal’s responses to the NOV. 10 In the Response to NOV, Pentecostal stated that it had taken steps to get the tower repainted. It said that it had obtained quotes for the cost of repainting, was raising funds in order to pay for the repainting, and was planning to get the towers repainted by the end of May, 2016. 11 Similarly, Pentecostal claimed that it was planning to have the lighting repaired within two weeks of filing the Response to NOV. 12 It also said it had tried to file a NOTAM on January 7, 2016, but a NOTAM had already been filed by a Commission agent. 13 In its Supplemental Response to NOV, Pentecostal acknowledged that the top-level beacon on ASR 1026648 was extinguished, although it claimed that (Continued from previous page…) 61.3 in meters in height above ground. See ASR 1026648 and ASR 1026650 (on file in EB-FIELDNER-15- 00020416). 5 Pentecostal Temple Development Corporation, Notice of Violation, February 9, 2016. 6 NOV at 2; 47 CFR § 17.50. 7 NOV at 2. 8 47 CFR § 17.23. The NOV inadvertently characterized this as a violation of Section 17.51 rather than Section 17.23 of the Rules. 9 A representative of WGBN notified the FAA on December 3, 2015 about the outage on antenna structure no. 1026648. In response, the FAA issued NOTAM #12/027 which was valid for only 30 days and automatically expired on January 4, 2016. On January 5, 2016, the agent inspected antenna structure no. 1026648 and found that the top-level beacon was still extinguished. The agent reported the outage and the FAA issued NOTAM #01/05 which expired on February 6, 2016. See NOV at 2-3, n.4. 47 CFR § 17.48(a). 10 See Letter from Bishop Loran Mann, President, Pentecostal Temple Development Corporation, to David Dombrowski, District Director, Philadelphia Office, Response to NOV (March 4, 2016) (on file in EB-FIELDNER- 15-00019082)(Response to NOV); Letter from Bishop Loran Mann, President, Pentecostal Temple Development Corporation, to David Dombrowski, District Director, Philadelphia Office, Supplemental Response to NOV (March 7, 2016) (on file in EB-FIELDNER-15-00020416)(Supplemental Response to NOV). 11 Response to NOV at 2. 12 Response to NOV at 2. 13 Response to NOV at 3. The Supplemental Response to NOV at Att. 3 discusses the fact that a NOTAM was previously filed on December 3, 2015 and expired on January 4, 2016. That NOTAM does not contradict the finding that Pentecostal failed to have a NOTAM on file on January 5, 2016, as required, when the Commission’s agent inspected the Antenna Structures. Pentecostal also states that NOTAMs were filed on February 4 and 29, 2016, which is not relevant to whether it failed to file the required NOTAM in January, 2016. Federal Communications Commission DA 16-1459 3 both side steady burning obstruction lighting globes were functioning normally. 14 It also acknowledged that the lower level side steady burning obstruction lighting globes on ASR 1026650 had only one working fixture, but maintained that the top-level beacon and upper side steady burning obstruction lighting globe were working properly. 15 Finally, Pentecostal admitted that it made no attempt to file a NOTAM for ASR 1026648 until three days after the previous NOTAM had expired. 16 5. On August 31, 2016, agents from the Philadelphia Office re-inspected the Antenna Structures to verify that the violations from the NOV had been corrected. The agents observed that the Antenna Structures had not been repainted. They also observed that the top-level beacon on the antenna registered under ASR 1026648 was extinguished and was still that one of the two red steady burning obstruction lighting globes at the 2/3 level of the antenna registered under ASR 1026650 extinguished. III. DISCUSSION 6. 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 thereunder, shall be liable for a forfeiture penalty. 17 Section 312(f)(1) of the Act defines “willful” as the “conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law. 18 The Commission may also assess a forfeiture for violations that are merely repeated, and not willful. 19 The term “repeated” means the commission or omission of such act more than once or for more than one day. 20 Based on the record before us, Pentecostal’s apparent violations of Section 303(q) of the Act and Sections 17.23 and 17.50(a) are both willful and repeated. 7. We find Pentecostal apparently willfully and repeatedly violated Section 303(q) of the Act and Section 17.50(a) of the Rules by failing to clean and repaint the Antenna Structures as required to maintain good visibility, Section 17.23 of the Rules by failing to correct the lighting failures on the towers registered under ASR 1026648 and ASR 1026650, and Section 17.48(a) of the Rules by failing to timely file the NOTAM for the tower registered under ASR 1026648. 14 Supplemental Response to NOV at Att. 1. 15 Supplemental Response to NOV at Att. 1. 16 Supplemental Response to NOV at Att. 3. Attachment 2 to the Supplemental Response to NOV includes an invoice for lighting repairs made in September 2015. Attachment 4 to the Supplemental Response to NOV is the lighting logs for November and December 2015. Attachments 2 and 4 do not provide any information relevant to determining whether the Antenna Structures were adequately painted or lit at the time of the agent’s inspection on January 5, 2016, and so are not relevant to the apparent violations at issue in this NAL. 17 47 U.S.C. § 503(b). 18 47 U.S.C. § 312(f)(1). The legislative history to Section 312(f)(1) of the Act clarifies that this definition of willful applies to both Sections 312 and 503(b) of the Act, and the Commission has so interpreted the term in the Section 503(b) context. H.R. Rep. No. 97-765, 97 th Cong. 2d Sess. 51 (1982) (“This provision [inserted in Section 312] defines the terms ‘willful’ and ‘repeated’ for purposes of section 312, and for any other relevant section of the act (e.g., Section 503) . . . . As defined[,] . . . ‘willful’ means that the licensee knew that he was doing the act in question, regardless of whether there was an intent to violate the law. ‘Repeated’ means more than once, or where the act is continuous, for more than one day. Whether an act is considered to be ‘continuous’ would depend upon the circumstances in each case. The definitions are intended primarily to clarify the language in Sections 312 and 503, and are consistent with the Commission’s application of those terms . . . .”); see, e.g., S. Cal. Broad. Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (1991), recons. denied, 7 FCC Rcd 3454 (1992). 19 See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable television operator’s repeated signal leakage). 20 See 47 U.S.C. § 312(f)(2); Callais Cablevision, Inc., 16 FCC Rcd at 1362, para. 9. Federal Communications Commission DA 16-1459 4 A. Failure to Clean or Repaint the Antenna Structures 8. 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. 21 Section 17.50(a) of the Rules requires that antenna structures requiring painting shall be cleaned or repainted as often as necessary to maintain good visibility. 22 On October 14, 2015, and on January 5, 2016, Commission agents observed that the paint on the Antenna Structures was severely faded and chipped and immediately notified Pentecostal of the Antenna Structures’ condition. In response to the NOV, Pentecostal admitted that the Antenna Structures needed to be repainted, and planned to have them repainted by May 2016. 23 Yet Pentecostal still had not repainted the Antenna Structures when the agents re-inspected them on August 31, 2016. Because Pentecostal failed to clean or repaint the Antenna Structures as often as necessary to maintain good visibility, as required by the Rules, we find that the violation was willful. Because the violation occurred over several months, we find that the violation was repeated. Accordingly, we find that Pentecostal apparently willfully and repeatedly violated Section 303(q) of the Act and Section 17.50(a) of the Rules by failing to clean or repaint Antenna Structures as often as necessary to maintain good visibility. B. Failure to Maintain Antenna Structure Lighting 9. The Antenna Structures are required to be painted and to have a red obstruction lighting system that includes a top-level beacon and at least two steady burning lamps at the 1/3 and 2/3 levels. 24 Under Section 17.23, “each antenna structure must be painted and lighted in accordance with any painting and lighting requirements prescribed on the antenna structure's registration.” 25 During the inspection on January 5, 2016, the agent observed that the top-level beacon on the tower registered under ASR 1026648 was extinguished. The agent also observed that one of the two steady burning lamps at the 2/3 level on ASR 1026650 was extinguished. In its Response to NOV, Pentecostal admitted the lighting outages, and maintained that it planned to fix those outages by mid-March 2016. 26 Yet, as noted above, when agents reinspected the Antenna Structures on August 31, 2016, the top-level beacon at the tower registered under ASR 1026648 remained out, and one of the two steady burning obstruction lighting globes at the tower registered under ASR 1026650 was out, in violation of Section 17.23. Because Pentecostal failed to maintain the lighting as required by the rules, we find that the violation was willful. Because the violation occurred over several months, we find that the violation was repeated. Accordingly, we find that Pentecostal apparently willfully and repeatedly violated Section 17.23 of the Rules by failing to display the lighting required in the ASRs. C. Failure to File NOTAM 10. During its January 5, 2016 inspection, the agent checked if a NOTAM for the top-level beacon outage for the tower registered under ASR 1026648 had been filed. The agent searched for a valid NOTAM and when he did not find one, reported the lighting outage to the FAA. The FAA issued NOTAM #01/05 which was valid until February 6, 2016. In the Supplemental Response to NOV, Pentecostal informed the Commission that a NOTAM was issued on December 3, 2015, and that it had expired on January 4, 2016. 21 47 U.S.C. § 303(q). 22 47 C.F.R. § 17.50(a). 23 Response to NOV at 2. 24 See ASR 1026648 and 1026650 (on file in EB-FIELDNER-15-00020416). 25 47 C.F.R. § 17.23. 26 Response to NOV at 2. See also Supplemental Response to NOV at Att. 1 (admitting the lighting outages). Federal Communications Commission DA 16-1459 5 11. Under Section 17.48(a), the FAA must be notified of any top-level steady burning beacon or any flashing obstruction light outage not corrected within 30 minutes. 27 The agent filed for a NOTAM for the antenna registered under ASR 1026648, approximately a full day after the previous NOTAM for this antenna structure had expired. Pentecostal admits that it did not attempt to file a NOTAM for this antenna structure until January 7, 2016, three days after the previous NOTAM for this antenna structure had expired. 28 Because Pentecostal failed to file the NOTAM as required by the rules, we find that the violation was willful. D. Proposed Forfeiture 12. Section 503(b) of the Act authorizes the Commission to impose a forfeiture against any entity that “willfully or repeatedly fail[s] to comply with any of the provisions of [the Act] or of any rule, regulation, or order issued by the Commission.” 29 Here, Section 503(b)(2)(A) of the Act authorizes us to assess a forfeiture against Pentecostal of up to $47,340 for each day of a continuing violation, up to a statutory maximum of $473,402 for a single act or failure to act. 30 In exercising our forfeiture authority, we must consider 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.” 31 In addition, the Commission has established forfeiture guidelines; they establish base penalties for certain violations and identify criteria that we consider when determining the appropriate penalty in any given case. 32 Under these guidelines, we may adjust a forfeiture upward for violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator. 33 13. Pursuant to the Commission’s Forfeiture Policy Statement, and Section 1.80 of the Rules, the base forfeiture amount for failing to comply with prescribed lighting and marking is $10,000. 34 In 27 47 C.F.R. § 17.48(a). Under Section 17.48(b), side beacon lighting outages must be corrected “as soon as practicable,” but are not required to be reported to the FAA. 47 C.F.R. §17.48(b). 28 Supplemental Response to NOV at Att. 3. 29 47 U.S.C. § 503(b). 30 See 47 U.S.C. § 503(b)(2)(A); 47 CFR §§ 1.80(b)(7), (9). These amounts reflect inflation adjustments to the forfeitures specified in Section 503(b)(2)(A) ($25,000 per violation or per day of a continuing violation and $250,000 per any single act or failure to act). The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101-410, 104 Stat. 890, as amended by the Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, Sec. 31001, 110 Stat. 1321 (DCIA), as further amended by the Federal Reports Elimination Act of 1998, Pub. L. No. 105-362, Sec. 1301, 112 Stat. 3280, and as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Sec. 701, Pub. L. No. 114-74, 129 Stat. 599 (codified as amended 28 U.S.C. § 2461 note) (the 2015 Inflation Adjustment Act), requires the Commission to adjust its penalties for inflation and publish interim final rules with the initial penalty adjustment amounts by July 1, 2016 and new penalty levels must take effect no later than August 1, 2016. See 28 U.S.C. § 2461 note. The Commission published those interim final rules on June 30, 2016. See Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of Civil Monetary Penalties to Reflect Inflation, Order, 31 FCC Rcd 6793 (EB 2016); see also Adjustment of Civil Monetary Penalties to Reflect Inflation, 81 Fed. Reg. 42554 (June 30, 2016) (setting August 1, 2016, as the effective date for the increases). The adjustments to the civil monetary penalties adopted by the Bureau pursuant to 2015 Inflation Adjustment Act will apply only to such penalties assessed after the effective date of the amendments to Section 1.80(b). See 28 U.S.C. § 2461 note (6). 31 47 U.S.C. § 503(b)(2)(E). 32 47 CFR § 1.80(b)(8), Note to paragraph (b)(8). 33 Id. 34 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087 (1997) (“Forfeiture Policy Statement”), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80. Federal Communications Commission DA 16-1459 6 assessing the monetary forfeiture amount, we must also take into account the statutory factors set forth in Section 503(b)(2)(E) of the Act, which include the nature, circumstances, extent, and gravity of the violations, 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. 35 Applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that the forfeiture should be assessed for each of the Antenna Structures that does not comply with the Commission’s rules for marking and lighting to maintain visibility. We also find that an upward adjustment is warranted. Despite repeated warnings regarding the Antenna Structures’ faded paint and lighting outage, the apparent violations continued, demonstrating a deliberate disregard for the Rules. We therefore conclude that Pentecostal is apparently liable for a forfeiture in the amount of $25,000. IV. CONCLUSION 14. We have determined that Pentecostal apparently willfully and repeatedly violated Section 303(q) of the Act and Sections 17.23, 17.48 and 17.50(a) of the Commission’s rules. As such, Pentecostal is apparently liable for a forfeiture of $25,000. V. ORDERING CLAUSES 15. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act 36 and Sections 1.80 of the Rules, 37 Pentecostal Temple Development Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of TWENTY FIVE THOUSAND DOLLARS ($25,000) for willful and repeated violations of section 303(q) of the Act; 38 and Sections 17.23, 17.48 and 17.50(a) of the Rules. 39 16. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules, 40 within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture, Pentecostal Temple Development Corporation SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 19 below. 17. Payment of the forfeiture must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above. Pentecostal Temple Development Corporation shall send electronic notification of payment to Janet F. Moran at Janet.Moran@fcc.gov, with a copy to NER-Response@fcc.gov on the date said payment is made. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted. 41 When completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters “FORF” in block number 24A (payment type code). Below are additional instructions that should be followed based on the form of payment selected: • Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with the completed Form 159) must be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197- 35 47 U.S.C. § 503(b)(2)(E). 36 47 U.S.C. § 503(b). 37 47 CFR § 1.80. 38 47 U.S.C. § 303(q). 39 47 CFR §§ 17.23, 17.48, 17.50(a). 40 47 CFR § 1.80. 41 An FCC Form 159 and detailed instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. Federal Communications Commission DA 16-1459 7 9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2- GL, 1005 Convention Plaza, St. Louis, MO 63101. • Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated. • Payment by credit card must be made by providing the required credit card information on FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment. The completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. 18. Any request for making full payment over time under an installment plan should be sent to: Chief Financial Officer—Financial Operations, Federal Communications Commission, 445 12th Street, SW, Room 1-A625, Washington, DC 20554. 42 Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov. 19. The written statement seeking reduction or cancellation of the proposed forfeiture, if any, must include a detailed factual statement supported by appropriate documentation and affidavits pursuant to Sections 1.16 and 1.80(f)(3) of the Rules. 43 The written statement must be mailed to the Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554, ATTN: Enforcement Bureau – Field Division, Office of the Field Director, and must include the NAL/Account Number referenced in the caption. The statement must also be e-mailed to Janet F. Moran at Janet.Moran@fcc.gov, with a copy to NER-Response@fcc.gov. 20. 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; 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. 21. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by first class mail and certified mail, return receipt requested, to Bishop Loran Mann, President, Pentecostal Temple Development Corporation, , and to Dan J. Alpert, Esq., The Law Office of Dan J. Alpert, 2120 North 21 st Road, Arlington, Virginia 22201. FEDERAL COMMUNICATIONS COMMISSION David Dombrowski Regional Director Region One Enforcement Bureau 42 See 47 CFR § 1.1914. 43 47 CFR §§ 1.16, 1.80(f)(3).