In re WKLC, Inc.
| Decision Date | 12 August 2005 |
| Docket Number | EB-03-CF-472,DA 05-2264 |
| Court | Federal Communications Commission Decisions |
| Parties | In the Matter of WKLC, Inc. WJYP(AM) St. Albans, West Virginia |
Adopted: August 10, 2005
NAL/Acct. No. 200432340002 FRN: 0002-0120-03
Kris Anne Monteith Acting Chief, Enforcement Bureau
By the Acting Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order), we cancel a proposed monetary forfeiture issued to WKLC, Inc. ("WKLC")[1] for alleged willful and repeated violation of the Commission's Rules ("Rules") requiring the registration and painting of antenna structures.[2] Based on the information now before us the Enforcement Bureau (Bureau) finds that no forfeiture should be imposed, contingent upon WKLC fulfilling the condition imposed herein.
2. WKLC, Inc. is the licensee of WJYP (AM) and the owner of the station's antenna structure located at approximately 38º 23' 43" North Latitude and 82º 51' 00" West Longitude, near St. Albans, West Virginia. On July 23, 2003, as part of ongoing inspections of radio operations, the Bureau investigators observed apparent violations of the Commission's rules requiring the registration and painting of antenna structures. Specifically, the investigator noted that the tower at the listed coordinates had never been painted. Moreover, the investigator noted that the tower was a replacement for the originally registered tower and that the replacement was not registered. Accordingly, the Bureau issued a Notice of Apparent Liability for Forfeiture, proposing a $13, 000 forfeiture for the alleged violations.
3. WKLC, Inc. responded to the NAL on March 29, 2004. In its response, WKLC stated that the antenna structure is exempt from the Commission's registration and painting requirements because the structure itself is less than 200 feet in height. It bases this argument on a declaration provided by Fred A. Francis, President of Francis Technical Services, the contract engineer for Station WJYP. Mr. Francis declares that an employee of A&B Communications climbed the "WYYP" (sic) tower and dropped a 100 foot tape measure, while another member of his crew placed a mark on the tower at that level. The two employees then determined that the measurement from the mark to the ground was 97 feet 7 inches. Therefore, states Mr. Francis, the measurement of the tower is 197 feet 7 inches.
4. Mr. Francis further declares that the tower consists of twenty 10-foot sections that sit on a two-foot concrete pier with a one-foot insulator. The tower sections are each 10 feet in height, but 3.5 inches of each section end inserts into the next section for bolting purposes; therefore, he states, 3.5 inches in tower height are lost for each section. For twenty sections, Mr. Francis calculates a total loss of five feet 10 inches; in addition, the tower has a top plate, which he states adds an additional 3 inches to the height. Calculating the loss for each section plus the top plate, Mr. Francis states that the tower measures 197 feet 7 inches.
5. On the basis of the new information provided by WKLC in its response to the Bureau's NAL, we conclude that actual height of the station's new replacement antenna structure, which was constructed in 2002, is 197 feet, 5 inches.[3] Because the structure measures less than 200 feet, it does not require notice of proposed construction to the Federal Aviation Administration and, thus, is not subject to the Commission's antenna structure registration rules. For the same reason, the structure also is not subject to the painting requirements of Section 17.50 of the Commission's Rules. Accordingly, those rule sections were not violated by the structure in question and no forfeiture should be imposed.
6. Although we conclude that no violation of Sections 17.4(a)(2) and 17.50 of the Rules has occurred, we have found no information in the Commission records to indicate that WKLC, Inc. ever sought authorization to construct a replacement tower at a new height. Replacing an authorized tower with a tower of different height at the same location requires prior approval by the Commission. See Section 73.1690(b)(1) of the Rules.[4]
7. Accordingly, we require, pursuant to Section 308(b) of the Communications Act of 1934, as amended, that WKLC submit a report to the Enforcement Bureau within 30 days of the release of this Order demonstrating that it has filed an FCC Form 301 application for construction permit specifying the correct height of the tower and an FCC Form 302 application for license. WKLC's report must be submitted in the form of an affidavit or declaration, under penalty of perjury, and signed by an officer or...
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