Opinion
CIVIL ACTION NO. 03-2149, SECTION "C" (4)
May 17, 2004
ORDER AND REASONS
Before the Court is Defendant's, Mapa Broadcasting, LLC, Motion for Summary Judgment. (Rec. Doc. 12). Also, before the Court is Plaintiffs, United States of America ("United States"), Cross Motion for Summary Judgment. (Rec. Doc. 13).
After a thorough review of the record, the law, the Motions, and the memoranda filed in support thereof and in opposition thereto, Defendant's Motion for Summary Judgment is DENIED IN PART and DISMISSED IN PART and Plaintiff's Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART.
BACKGROUND
On March 14, 2001, Leroy Hall and Walter Gernon, agents of the Federal Communications Commission ("FCC"), inspected the radio broadcast station WSLA(AM) in Slidell, Louisiana. Defendant is a licensee of WLSA. During the inspection, the agents determined that Defendant had violated various FCC regulations by failing to have operational Emergency Alert System ("EAS") equipment in violation of 47 C.F.R. § 11.35(a), by failing to provide an effective locked fence enclosing the station's antenna structure in violation of 47 C.F.R. § 73.49, by failing to clean or repaint the antenna structure as often as necessary to maintain good visibility in violation of 47 C.F.R. § 17.50, and by failing to make entries of monthly and weekly EAS tests in violation of in violation of 47 C.F.R. § 73.1820(a)(1)(iii).
On April 26, 2001, the FCC's New Orleans Office issued a Notice of Violation citing Defendant for the aforementioned violations. The Notice advised Defendant that it must submit a written response to the Notice within 20 days. On May 14, 2001, the New Orleans Office received Defendant's response dated May 11, 2001, in which George Mayoral, General Manager and Chief Engineer of WSLA, admitted that the station lacked EAS equipment. (Rec. Doc. 13, exhibit 8). By way of explanation, Mayoral stated therein:
[Defendant was] under the erroneous impression that EAS participation for a part time low power operation under the umbrella of many New Orleans powerful radio stations was more or less voluntary. We failed to obtain a definite on this matter until you pointed out to us that this was a mandatory matter. We immediately contacted the EAS equipment manufacturer and arranged for delivery of EAS equipment . . . It is expected that the equipment will be delivered and installed within a month, as replacement to the already installed EBS equipment from the same manufacturer.Id. Defendant also admitted that it had not kept logs of monthly or weekly EAS tests because of the lack of such equipment. Id.
Regarding the citation for failing to maintain an effective locked fence around the tower, Defendant admitted that "at the time of the inspection the gate had been carelessly left open by yard men working or removing weeds, etc. [from the] base of [the] tower, in spite of [a] big sign at [the] key location reading Tower gate must be locked at all times per F.C.C. regulations." Id. Defendant additionally stated that the tower had no radio frequency present at its base. Id. Defendant also responded to the FCC's citation for failure to maintain paint on the tower by stating that, after "removal of several coax cables", "the tower has been repainted by its owner." Id.
Defendant submitted a revised version of its response, also dated on May 11, 2001, received on May 21, 2001, in which it altered its response to the FCC's citation for failure to maintain a locked enclosure around the tower by omitting its claim that the tower had no radio frequency present at its base. (Rec. Doc. 13, exhibit 9).
On July 24, 2001, the New Orleans Office issued a Notice of Apparent Liability, proposing a forfeiture in the amount of $15,000, including $8,000 for failure to have operational EAS equipment and $7,000 for failure to have an effective locked enclosure around the tower. (Rec. Doc. 13, exhibit 10). No assessment was proposed for Defendant's alleged violations for failure to maintain paint on the tower or failure to keep the EAS logs. Id. The Notice of Apparent Liability stated that Defendant must either pay the proposed forfeiture or file a written statement seeking reduction or cancellation of the forfeiture with the Office of the Secretary of the FCC. Id. The Notice was mailed by certified mail to Defendant. (Rec. Doc. 13, exhibit 11).
Defendant, through Mayoral, submitted a written statement seeking reduction or cancellation of the forfeiture. (Rec. Doc. 13, exhibit 12). Defendant admitted that the tower fence was unlocked at the time of the inspection and that someone entering the enclosure could touch the tower base and receive a radio frequency burn. Id. Defendant also admitted that a modified Emergency Broadcasting System ("EBS") unit with an AM tuner was functioning in place and the stations logs included EBS logging. Id.
On December 19, 2001, the FCC released its Forfeiture Order, finding Defendant willfully violated the FCC's provisions prohibiting failure to maintain an effective locked fence around the tower and failure to have operational EAS equipment. (Rec. Doc. 13, exhibit A). The Commission reduced the $15,000 forfeiture amount proposed by the New Orleans office to $2,500 based on Defendant's inability to pay a higher forfeiture. Id. Defendant filed a petition for reconsideration on January 24, 2002, (Rec. Doc. 14, exhibit 9), which was denied on June 4, 2002. (Rec. Doc. 15, exhibit 9).
On July 29, 2003, Plaintiff filed suit to collect the forfeiture. Defendant answered on October 23, 2003. Neither party demanded a jury trial. Defendant filed a Motion for Summary Judgment on March 31, 2004. Plaintiff filed his Cross Motion for Summary Judgment on April 13, 2004. The Motions were heard on the briefs on April 28, 2004.
STANDARD OF REVIEW
Before the Court states the appropriate standard of review, it is important to note that Plaintiff argues that, in nonjury cases, a "more lenient standard for summary judgment" applies. U.S. Fidelity Guarantee Co. v. Planters Bank Trust Co., 77 F.3d 863, 865 (5th Cir. 1996). The Fifth Circuit has not decided the issue yet, but it has suggested that the more lenient standard may be appropriate. Illinois Central R. Co. v. Mayeux, 301 F.3d 359, 362 n. 1 (5th Cir. 2002). The more lenient standard suggests that, on a motion for summary judgment in a case set for trial without a jury, when the facts are not in dispute, a district judge may draw inferences based on those facts, even inferences against the non-moving party, and render a judgment, thus obviating the need for a plenary trial. U.S. Fidelity Guarantee Co., 77 F.3d at 865.
However, in this case, as either the facts are in dispute or there is no dispute as to either the facts and the inferences to be drawn from those facts, the more lenient standard, even if proper, does not need to be employed to resolve these Motions. Therefore, the normal standard of review applies.
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
LAW AND ANALYSIS
The FCC is a federal regulatory agency created by Congress for the purpose of regulating interstate and foreign commerce in communication by wire and radio and charged with the duty of enforcing and executing the provisions of the Communication Act of 1934, as amended. See 47 U.S.C. § 151, et seq. The responsibilities of the FCC include ensuring that licensees of radio broadcast stations comply with the provisions of the Communications Act and with rules promulgated by the FCC pursuant to its authority. See 47 U.S.C. § 151, 152(a), 154(1), 301 303(r).To promote compliance with the Communications Act, Title 47, section 503 of the United States Code provides that any person who is determined by the Commission to have willfully or repeatedly failed to comply with any rule, regulation, or order issued by the Commission under its statutory authority, or its authority under any treaty, convention, or other agreement to which the United States is a party and which is binding on the United States, shall be liable to the United States for a forfeiture penalty. 47 U.S.C. § 503(b)(1)(B).
In practice, the FCC has two means of seeking a forfeiture penalty. The first means, not employed by the FCC in this case, the procedure for which is outlined in 47 U.S.C. § 503(b)(3), 47 U.S.C. § 402(a), and 5 U.S.C. § 554, involves a hearing before the Commission or an administrative law judge. 47 U.S.C. § 503(b)(3). After the hearing and the issuance of a final and unappealable order, the Attorney General may recover the forfeiture in any appropriate district court of the United States. Id. In such action, the validity and appropriateness of the final order imposing the forfeiture penalty is not subject to review by the court. Id.
The second means of seeking recovery of a forfeiture penalty is commenced by the Commission when it issues a Notice of Apparent Liability. 47 U.S.C. § 503(b)(4). After the notice is received by the person against whom the government seeks a forfeiture penalty, such person must be granted a reasonable period of time to show, in writing, why no such penalty should be imposed. Id. Afterwards, the Commission may determine a forfeiture penalty, if appropriate. Id. Again, after the determination of the forfeiture, the penalty may be recovered by a civil suit brought in the name of the United States. 47 U.S.C. § 504(a). However, in this case, suit for the recovery of the forfeiture shall be by trial de novo. Id.
Plaintiff has decided to proceed under the second means. It is now to the Court to decide if summary judgment is appropriate in favor of either party. The Court must determine whether there is a genuine issue of material fact as to whether or not Defendant willfully violated the FCC rules by failing to have operational Emergency Alert System equipment in violation of 47 C.F.R. § 11.35(a) and by failing to provide an effective locked fence enclosing the station's antenna structure in violation of 47 C.F.R. § 73.49, thus entitling Plaintiff to a forfeiture penalty under 47 U.S.C. § 503.
Defendant contends that there is no genuine issue of material fact that it did not violate any of the rules for which it was originally cited. While the record is not clear whether Defendant violated the FCC rules by failing to clean or repaint the antenna structure as often as necessary to maintain good visibility in violation of 47 C.F.R. § 17.50 or by failing to make entries of monthly and weekly EAS tests in violation of in violation of 47 C.F.R. § 73.1820(a)(1)(iii), the record does clearly show that the FCC did not determine any forfeiture penalty on those grounds and Plaintiff has not sought recovery of a forfeiture penalty on those grounds. Therefore, insofar as Defendant seeks summary judgment on the basis that there is no genuine issue of material fact that it did not fail to clean or repaint the antenna structure as often as necessary to maintain good visibility or to make entries of monthly and weekly EAS tests, Defendant's Motion is dismissed.
Defendant also contends that there is no genuine issue of material fact that it did not willfully violate the FCC rules by failing to have operational Emergency Alert System equipment in violation of 47 C.F.R. § 11.35(a) and by failing to provide an effective locked fence enclosing the station's antenna structure in violation of 47 C.F.R. § 73.49.
Willful means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate the Communications Act. 47 U.S.C. § 312(f). 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. H.R. Rep. No. 97-765, 97th Cong.2d Sess. 51 (1982). 47 C.F.R. § 11.35 provides that:
In its Cross Motion for Summary Judgment, Plaintiff presents a great deal of evidence that Defendant actually knew that its failure to have the EAS equipment was an actual violation of the FCC regulations. Plaintiff asserts that, although 47 C.F.R. § 11.39 was not made effective until 1997, it was included in the Code of Federal Regulations, as was its effective date, as early as 1995. Plaintiff asserts that, because Defendant was licensed in 1996 and part of the licensing procedure requires that Defendant certify that its station meets all FCC regulations, he knew that 47 C.F.R. § 11.39 would be effective in 1997. However, as the definition of wilful listed above makes clear, whether or not Plaintiff actually knew the failure to have EAS equipment was a violation of the FCC regulations is irrelevant except insofar as it shows that he knew that he did not have the EAS equipment at all.
(a) Broadcast stations and cable systems and wireless cable systems are responsible for ensuring that EAS Encoders, EAS Decoders and Attention Signal generating and receiving equipment used as part of the EAS are installed so that the monitoring and transmitting functions are available during the times the stations and systems are in operation. Additionally, broadcast stations and cable systems and wireless cable systems must determine the cause of any failure to receive the required tests or activations specified in §§ 11.61(a)(1) and (2). Appropriate entries must be made in the broadcast station log as specified in § 73.1820 and § 73.1840 of this chapter, cable system record as specified in §§ 76.1700, 76.1708, and 76.1711 of this chapter, MDS/MMDS station records as specified in § 21.304 of this chapter, indicating reasons why any tests were not received.
(b) If the EAS Encoder or EAS Decoder becomes defective, the broadcast station, cable system or wireless cable system may operate without the defective equipment pending its repair or replacement for 60 days without further FCC authority. Entries shall be made in the broadcast station log, cable system or wireless cable system station records showing the date and time the equipment was removed and restored to service. For personnel training purposes, the required monthly test script must still be transmitted even though the equipment for generating the EAS message codes, Attention Signal and EOM code is not functioning.
(c) If repair or replacement of defective equipment is not completed within 60 days, an informal request shall be submitted to the District Director of the FCC field office serving the area in which the broadcast station, cable system or wireless cable system is located for additional time to repair the defective equipment. This request must explain what steps have been taken to repair or replace the defective equipment, the alternative procedures being used while the defective equipment is out of service, and when the defective equipment will be repaired or replaced.47 C.F.R. § 11.35.
47 C.F.R. § 73.49 provides that:
Antenna towers having radio frequency potential at the base (series fed, folded unipole, and insulated base antennas) must be enclosed within effective locked fences or other enclosures. Ready access must be provided to each antenna tower base for meter reading and maintenance purposes at all times. However, individual tower fences need not be installed if the towers are contained within a protective property fence.47 C.F.R. § 73.49.
In Mayoral's affidavit submitted with Defendant's Motion for Summary Judgment, Mayoral states that, at the time of the inspection, the enclosure surrounding the tower was not locked because a man was cutting the grass inside the enclosure. (Rec. Doc. 12). He states that at all other times the enclosure was properly locked with a properly functioning lock. Id.
Agent Hall states in his deposition that, at the time of the inspection, the lock was rusted and non-functioning. He also states that, at the time of the inspection, there was no indication that anyone was cutting the grass inside the enclosure.
Regarding the fence, there exist genuine issues of material fact. Therefore, insofar as the Motions for Summary Judgment seek summary judgment over the issue of whether Defendant willfully failed to provide an effective locked fence enclosing the station's antenna structure in violation of 47 C.F.R. § 73.49, the Motions are both denied.
In regard to the lack of the EAS equipment, Mayoral testified that, prior to the citation or the inspection, he was uncertain of the FCC rules governing the EAS equipment. He states that he contacted the local FCC chief who stated that he should contact the national FCC as well as Washington and industry leaders such as the National Association of Broadcasters. Mayoral further states that he did so and requested voluntary inspection and instruction. At the time the FCC agents inspected WSLA, Mayoral believed they were there to conduct the voluntary inspection and instruction. He further states that no FCC agent has inspected WSLA since he installed the EAS equipment and that he believes he was in full compliance with the FCC rules. He does not state anywhere that he had the EAS equipment at the time of the inspection or that the failure to have the EAS equipment was not willful.
Defendant also attached the affidavit of Gary G. Baylor. Although Baylor opines that there is a lot of controversy in the broadcasting field as to what constitutes compliance with the EAS requirement and that he believes Defendant was in full compliance with the FCC rules, he likewise does not state that Defendant had the necessary EAS equipment at the time of the inspection or that Defendant's failure was not willful.
Plaintiff has attached the deposition of Agent Hall, who states that he did not find the EAS equipment anywhere when he inspected. (Rec. Doc. 13, exhibit B, pp. 23-24). Plaintiff also attaches the two responses issued by Mayoral on May 11, 2001 to the Notice of Violation, his August 21, 2001 written statement seeking reduction or cancellation to the Commission, and his petition for reconsideration. (Rec. Doc. 13). In each of these documents, Mayoral, or his counsel at the time, states that Defendant did not have the EAS equipment at the time of the inspection. Id.
It seems clear to the Court that, insofar as both Motions address Defendant's failure to have the proper EAS equipment, there are no genuine issues of material fact and summary judgment in favor of Plaintiff is appropriate.
Neither party has requested that the Court grant summary judgment as to the amount of the forfeiture involved. Under the de novo provisions of 47 U.S.C. § 504(a), it appears that this Court may determine the quantum of the forfeiture award. 47 U.S.C. § 504(a); see United States v. Daniels, 418 F. Supp. 1074 (D.S.D. 1976). However, since neither party has requested the Court do so in their respective Motions and there are likely genuine factual issues, summary judgment on the issue of quantum in favor of either party is inappropriate.
CONCLUSION
Defendant's Motion for Summary Judgment is DENIED IN PART and DISMISSED IN PART and Plaintiff's Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART.
Insofar as the Motions for Summary Judgment seek a judgment over the issue of whether Defendant willfully failed to provide an effective locked fence enclosing the station's antenna structure in violation of 47 C.F.R. § 73.49, the Motions are both denied.
Insofar as both Motions address Defendant's failure to have the proper EAS equipment, there are no genuine issues of material fact and summary judgment in favor of Plaintiff is appropriate.