Michael Higgs Jr.
Shulman, Rogers, Gandal, Pordy & Ecker
The FCC has issued a monetary forfeiture in the amount of $8,000 to Martin Broadcasting for violations related to its failure to exhibit red obstruction lighting from sunset until sunrise and monitor the antenna structure lighting on a daily basis. Initially, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability (NAL) in the amount of $10,000 for Martin’s Beaumont, Texas, tower infractions, but that fine was reduced by the commission based “solely on its history of compliance with the rules.”
An agent from the Houston field office observed that the top and midpoint red obstruction lights and the ¾ side lights on the antenna structure were extinguished after sunset on November 28 and 29, 2011. Martin admitted that it was not observing the antenna structure’s lights once every 24 hours and had no automatic alarm system. The fines are based on a violation of section 303(q) of the act and sections 17.47(a) and 17.51(a) of the rules.
In other enforcement news, the commission has issued a monetary forfeiture in the amount of $7,000 to Wagenvoord Advertising Group for failure to have an effective locked fence around its antenna structure, in violation of section 73.49 of the rules. Wagenvoord asserted in its defense that the antenna structure did not pose a public safety hazard because it stands on top of a 7-foot concrete pylon, which does not have RF potential at its base or, alternatively, qualify as an “other enclosure,” and the NAL overstated the size of the break in the fence surrounding the antenna structure.
The Commission disagreed with the first point, and found that the “base” referenced in section 73.49 refers to the base of the metal portion of the antenna structure, not the base of anything to which the structure may be attached. Because the station’s antenna structure had RF potential at the metal base (albeit not at ground level), the commission concluded that the rule does apply. The case relied upon by Wagenvoord for classifying its concrete base as an “other enclosure” is distinguishable because in that prior case the structure was situated in a flood plain, which, along with local zoning rules, precluded the erection of a fence.
In discussing the details of the size of the break in the fence, the commission determined that if “the gap was large enough to afford people access to the base,” then the fence was not effective. Although the commission has “credited natural barriers or even [natural] conditions that temporarily impede direct access to a tower as mitigating factors,” no such natural conditions were found to present in this instance.
For more information, contact Michael Higgs at [email protected]