Corrected Copy Notice of Apparent Liability for Forfeiture

Federal Communications Commission

Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Pembrook Pines Elmira, LTD ) EB-06-BF-008 Antenna Structure Registrant ) EB-06-BF-009 ASR#s1008080 and 1008079 ) EB-06-BF-010 Licensee of Stations ) EB-06-BF-011 WEHH(AM), Elmira Hts-Horseheads, NY ) WELM(AM), Elmira, NY ) NAL/Acct. No. 200732280001 Facility IDs # 55271, 52120 ) FRN 0003744174 ) ) ) ) )

CORRECTED COPY NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Released: January 12, 2007

By the Resident Agent, Northeast Region, Enforcement Bureau:

I. INTRODUCTION

1. In this Notice of Apparent Liability for Forfeiture (“NAL”), we find that Pembrook Pines Elmira, Ltd. (“Pembrook”), licensee of stations WEHH(AM), Elmira Heights-Horseheads, NY, and WELM(AM), Elmira, NY, and registrant of antenna structure numbers 1008080 and 1008079 in Elmira, NY, apparently willfully and repeatedly violated Sections 17.48(a), 17.51(a), and 73.1745(a) of the Commission's Rules (“Rules”)1 by failing to comply with antenna structure lighting requirements, failing to notify the FAA of an antenna structure light outage, and failing to operate its AM stations consistent with the modes and power authorized in the stations’ licenses. We conclude, pursuant to Section 503(b) of the Communications Act of 1934, as amended (“Act”),2 that Pembrook is apparently liable for a forfeiture in the amount of nineteen thousand dollars ($19,000).

II. BACKGROUND

1. Between January 17, 2006, and January 19, 2006, an agent in the Commission’s Buffalo Office conducted an inspection of the Pembrook stations and their associated antennas structures.

A. Antenna Structures

2. On January 17, 2006, at 6:00 p.m., an agent in the Commission’s Buffalo Office observed that the top lights were extinguished on antenna structure # 1008079 and antenna structure # 1008080, which are part of the three-tower array associated with AM stations WEHH and WELM. According to

1 47 C.F.R. §§ 17.48(a), 17.51(a), and 73.1745(a). 247 U.S.C. § 503(b). Federal Communications Commission the structures’ FCC registration, the structures are required to have a flashing red beacon at the top of the structure.3

2. When the agent observed that the top lights still were not illuminated on January 18, 2006, the agent contacted Pembrook regarding the status of the antenna structure lighting. Pembrook indicated that it was aware of the tower light outages, but was unable to provide evidence that it had notified the Federal Aviation Administration (“FAA”) regarding the outage. At the direction of the agent, Pembrook contacted the FAA and a Notice to Airmen (“NOTAM”) was issued that same day. When Pembrook notified the agent via facsimile that a NOTAM had been issued, it also sent documents, which revealed that Pembrook was aware of the light outage as early as September 28, 2005, and had been attempting to locate someone to install the top beacon lights. Pembrook also claimed that it had notified the FAA on December 24, 2005, but never was able to produce evidence that it had notified the FAA or that a NOTAM had been issued prior to January 18, 2006. The agent also independently contacted the FAA and found no evidence that a prior NOTAM had been issued.4

B. Transmitter Operation

3. On January 18, 2006, the agent conducted an inspection of station WEHH’s transmitter. Station WEHH is authorized to operate with a directional antenna at 5000 watts during the day and 170 watts at nighttime. During the inspection, the agent found that WEHH was not capable of reducing power to its authorized nighttime power or switching to its authorized nighttime directional antenna pattern. Specifically, the station remained in its daytime directional antenna pattern with a reduced transmitter power of 450 watts, which far exceeds its authorized nighttime power. Pembrook filed a letter with the Commission’s Media Bureau on January 26, 2006, requesting special temporary authority to operate WEHH with 1350 watts daytime power and 46 watts nighttime power.5

4. Also on January 18, 2006, the agent conducted an inspection of station WELM’s transmitter. Station WELM is authorized to operate at 5000 watts during the day with a non-directional antenna and 1000 watts at nighttime with a directional antenna. The agent found that WELM was not capable of switching to its nighttime operation with a directional antenna. The agent found that the station’s failure to switch to the directional antenna resulted in each of its monitoring points exceeding the authorized limits by at least 400%. On January 26, 2006, Pembrook filed a letter with the Media Bureau regarding WELM’s operations and requested special temporary authority to operate WELM at 5000 watts daytime power and 250 watts nighttime power.6

III. DISCUSSION

3. 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. The term “willful” as used in Section 503(b) is interpreted to mean simply that the acts or omissions are committed knowingly.7 The term “repeated” means the commission

3 The structures’ FCC registration provides that the structures are subject to FCC paragraphs 1, 3, 11, and 21. 4 We note that, even if a NOTAM had been issued on December 24, 2005, it would have expired on January 7, 2006 because the FAA cancels NOTAMs automatically after fifteen days. The documents submitted by Pembrook include a copy of a billing statement for beacon and obstruction bulbs, dated September 28, 2005, and an e-mail regarding delays associated with installing the new beacon lights, dated December 8, 2005. 5 See Letter from Harry F. Cole, counsel for Pembrook, to Media Bureau, dated January 26, 2006, regarding WEHH. 6 See Letter from Harry F. Cole, counsel for Pembrook, to Media Bureau, dated January 26, 2006, regarding WELM. 7Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies to violations for which forfeitures are assessed (continued....) 2 Federal Communications Commission or omission of such act more than once or for more than one day.8

A. Antenna Structure

4. 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.9 Section 17.51(a) of the Rules requires that all red obstruction lighting be exhibited from sunset to sunrise unless otherwise specified.10 On January 17, 2006, the agent observed that the top red beacon light was extinguished on antenna structure # 1008079 and antenna structure # 1008080. According to documents provided to the agent, Pembrook was aware as early as September 28, 2005, that the top red beacon lights were extinguished. We therefore find that Pembrook apparently willfully and repeatedly violated Section 17.51(a) of the Rules by failing to exhibit all red obstruction lighting from sunset to sunrise.

5. Section 17.48(a) of the Rules requires that tower registrants notify the FAA Flight Service Station or office of any extinguishment or malfunction of any required top mounted lighting or flashing light no matter the position on the structure. 11 As noted above, Pembrook was aware of the extinguished red beacon lights as early as September 28, 2005. There is no evidence of a NOTAM being issued until January 18, 2006, which was issued only after Pembrook was directed to notify the FAA by the FCC agent. Accordingly, we find that Pembrook apparently willfully and repeatedly violated Section 17.48(a) of the Rules by failing to notify the FAA immediately regarding the extinguished top red beacon lights.

B. Transmitter Operation

6. Section 73.1745(a) of the Rules provides that “[n]o broadcast station shall operate at times, or with modes or power, other than those specified and made a part of the license. . . .” During the inspection, the agent found that WEHH was not capable of reducing power to its authorized nighttime power or switching to its authorized nighttime directional antenna pattern. The agent also found that WELM was not capable of switching from its daytime operation with a non-directional antenna to its authorized nighttime operation with a directional antenna. In light of these problems, on January 26, 2006, Pembrook filed with the FCC’s Media Bureau a request for special temporary authority to operate station WEHH and WELM at variance with their licenses. We find that Pembrook apparently willfully and repeatedly violated Section 73.1745(a) of the Rules by failing to operate stations WEHH and WELM in accordance with the modes and power authorized in its licenses.

7. 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”), and Section 1.80 of the Rules,12 the base forfeiture amount for failure to comply with prescribed lighting and/or marking is

(...continued from previous page) 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 . . . .” See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 8Section 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 ‘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.” 947 U.S.C. § 303(q). 1047 C.F.R. § 17.51(a). 1147 C.F.R. § 17.48(a). 1212 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80.

3 Federal Communications Commission

$10,000. Because Pembrook submitted evidence that it had purchased new beacon lights and was attempting to locate an individual to install the new lights, we reduce the proposed forfeiture to $8,000 for its good faith efforts to comply with our Rules. The base amount for failing to file required information is $3,000. We find that failing to notify the FAA of an outage constitutes a failure to file required information. The base amount for exceeding power limits is $4,000 for each occurrence. 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 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.13 Appling the Forfeiture Policy Statement, Section 1.80, and the statutory factors, a $19,000 forfeiture is warranted.

IV. ORDERING CLAUSES

29. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's Rules, Pembrook Pines Elmira, LTD. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of nineteen thousand dollars ($19,000) for violations of Sections 17.48(a), 17.51(a), and 73.1745(a) of the Rules.14

30. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's Rules within thirty days of the release date of this Notice of Apparent Liability for Forfeiture, Pembrook Pines Elmira, LTD SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.

31. 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/Acct. No. and FRN No. referenced above. Payment by check or money order may be mailed to Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911-6106.

32. The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Northeast Region, Buffalo Office, 6400 Sheridan Drive, Williamsville, New York 14221 and must include the NAL/Acct. No. referenced in the caption.

3 33. 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 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.

34. Requests for payment of the full amount of this Notice of Apparent Liability for Forfeiture under an installment plan should be sent to: Associate Managing Director, Financial Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.8

1347 U.S.C. § 503(b)(2)(D). 1447 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80, 17.48(a), 17.51(a), and 73.1745(a). 8See 47 C.F.R. § 1.1914.

4 Federal Communications Commission

35. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by Certified Mail, Return Receipt Requested, and regular mail, to Pembrook Pines Elmira, LTD. at its address of record.

FEDERAL COMMUNICATIONS COMMISSION

David Viglione Resident Agent Buffalo Office Northeast Region Enforcement Bureau