FCC 90·288 Federal Communications Commission Record 5 FCC Red No. 19

also reasserts its claim, made in its Application for Re­ Before the view, that the FAA had notice that the towers were not Federal Communications Commission lit. Washington, D.C. 20554 4. As part of its Petition for Reconsideration, Oro presents a. copy of a "Request for Expedited Processing and Grantmg of KIQI Construction Permit Application" In the Matter of (Request) that was filed with the Commission in March 1978, by the station's previous licensee, San Francisco Petition for Reconsideration Wireless Talking Machine Company, Inc. The Request, of Commission's Denial of Application which was eventually withdrawn, was for permission to r:tove the trans~itter site to Hayward, CA. The previous for Review filed by Oro Spanish hcensee stated m the Request that if permission to move Broadcasting, Inc., Licensee of Station the transmitter site were not granted, it would be required KIQI(AM), San Francisco, California to engage in costly repairs. It stated that it was impossible to replace burnt out tower lights because the towers were For a Forfeiture dangerously unstable, unable to support the weight of a person climbing up them, and the surrounding ground was too marshy to allow a "cherry picker" to be used for MEMORANDUM OPINION AND ORDER the job. 5. Petitioner submits this Petition for Reconsideration Adopted: August 16, 1990; Released: September 12, 1990 pursuant to Section 1.106(c)(2) of the Commission's Rules, which allows petitions for reconsideration relying By the Commission: on facts not previously presented to the Commission to be entertained if the Commission determines that consider­ 1. The Commission has under consideration a Petition ation of such facts is in the public interest. However, for Reconsideration, filed March 15, 1990, 1 of the Com­ Section l.l06(b )(2)(ii), which sets forth the procedures for mission's denial of an Application for Review, released Petitions for Reconsideration of a Commission action February 13, 1990, upholding a forfeiture in the amount denying an Application for Review, states that such a of eight thousand dollars ($8,000.00) against Oro Spanish petition will be entertained only when it "relies on facts Broadcasting Company, Inc. (Oro), licensee of KIQI(AM), unknown to petitioner until after his last opportunity to San Francisco, California, for failure to light the station's pre:ent such matters which could not, through the ex­ tower lights. erctse of ordinary diligence, have been learned prior to such opportunity." We believe that the applicable section 2. A Notice of Apparent Liability for $9,300.00 was to this Petition for Reconsideration is Section originally issued to Oro after an April 7, 1989, inspection l.106(b )(2)(ii). We further beiieve that the petitioner by a member of the San Francisco office of the Field could have known of the material on which it now relies Operations Bureau (FOB) found the following violations: through the exercise of reasonable diligence prior to filing (a) the Public Inspection File was not readily available for his Application for Review. The material was a part of the inspection upon request by the inspecting officer in will­ license file for the station and could have been retrieved ful violation of Section 73.3526(d) of the Commission's in a timely fashion. Finally, even if we had had them Rules ($300.00): (b) daily logging entries were made sug­ before us when we decided the Application for Review, gesting that the tower lights were routinely turned on and these "new facts" would not have altered our previous off when the lights were, in fact. not functioning in determination in this case given that the licensee failed to repeated violation of Sections 17.47(a)(l) and (2), and follow the available procedure2 and the serious dangers 17.49 ($1,000.00); and (c) the station's tower lights were posed by lack of compliance with the involved rules. extinguished as confirmed by observations by FOB per­ sonnel on April 3, 4, and 5, 1989, at approximately 10:00 6. ACCORDINGLY, IT IS ORDERED, That the Peti­ p.m. and on June 5, 1989, at 9:00 p.m. in repeated tion for Reconsideration. filed March 15, 1990, by Oro violation of Sections 73.1213(a) and (b), 17.48 and Spanish Broadcasting, Inc., licensee of Station KIQI(AM), 17.56(a) ($8,000.00). The August 11, 1989, Forfeiture Or­ San Francisco, California, IS DENIED. der deleted the Public Inspection File forfeiture, reducing 7. IT IS FURTHER ORDERED That Oro Spanish the total forfeiture to $9,000.00. An Application for Re­ Broadcasting Inc., licensee of Station KIQI(AM). San view, filed September 7, 1989, by Oro sought recision of Francisco, California, SHALL FORFEIT to the UNITED that forfeiture. In a Memorandum Opinion and Order, 5 STATES OF AMERICA the sum of eight thousand dol­ FCC Red 833 (1990), the Commission deleted the Jogging lars ($8,000.00) for repeated violations of Section entry forfeiture and denied recision of the lighting for­ 73.1213(a) and (b), 17.48 and 17.56(a) of the Commis­ feiture, reducing the total forfeiture to $8,000.00. sion's Rules. 3. In its Petition for Reconsideration of that decision, Oro acknowledges that it did not maintain tower lighting FEDERAL COMMUNICATIONS COMMISSION as required by the KIQI(AM) authorization and that it should have requested the Commission to waive the light­ ing requirment. It admits that when it purchased KIQI(AM) it was aware that the towers were unlit but believed that "the authorities had been notified the towers Donna R. Searcy were unsafe to climb and lighting was not required." Oro Secretary

. 5500 5 FCC Red No. 19 Federal Communications Commission Record FCC 90-288

FOOTNOTES 1 On April 4, 1990, Oro filed a Supplement to Petition for Reconsideration, which is herein included in any reference to licensee's Petition for Reconsideration. 1 Variances from lighting requirements must be issued by the Antenna Survey Branch after a Federal Aviation Administra­ tion determination that the lighting is unnecessary. Public No­ tice, Air Hazards Caused by Improperly Marked and Lighted Communications Towers, 66 RR 2d 924 (1989).

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