YOU own it. No, YOU own it. No, YOU own it . . . .
A recent decision from the full Commission teaches us a couple of valuable lessons when it comes to potential liabilities both for tower owners and for those who may not think that they’re tower owners.
It all started in 2006, when Ely Radio, LLC bought KWNA(AM), Winnemucca, Nevada. The deal provided, in standard contractual terms, that the buyer would be acquiring all the “property and fixtures . . . used or useful” in the station’s operation. The average reader might leap to the conclusion that the “property and fixtures” in question would necessarily include the station’s tower. Don’t be so sure.
Fast forward a couple of years. The Enforcement Bureau’s San Francisco Field Office determines that the station’s tower hasn’t been lit at night; making matters worse, the tower’s owner hasn’t been making the required observations and, as a result, hasn’t reported the outage to the FAA. When the Enforcement folks check the FCC’s database, they determine that the tower’s owner is listed not as Ely Radio, LLC, but rather the company that had sold the station back in 2006.
Covering all their bases, the Field Office reps notify both the 2006 seller and buyer of the problem. The seller promptly writes back to advise the Commission that the tower was sold to Ely Radio as part of the 2006 deal, even though the seller did apparently hold onto the land on which the tower is situated. Based on that information, the Enforcement Bureau issues a Notice of Apparent Liability to Ely Radio for the tower lighting, observation and notification violations; the Bureau throws in an additional violation – failure to notify the Commission of the 2006 change in the tower’s ownership. Ely Radio responds that, contrary to what the 2006 seller may be saying, Ely Radio did not acquire the tower as part of its deal, so the seller is the one who should be liable for any tower-related violations.
At this point, let’s recall the Commission’s longstanding policy of refusing to adjudicate issues relating to local law.Continue Reading...