******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Private Land Mobile Station KNDH363 ) NAL Acct. No. 315NF0044 Summerfield, North Carolina ) Licensed to Motorola, Inc. ) MEMORANDUM OPINION AND ORDER Adopted: September 24, 1997 Released: September 29, 1997 By the Chief, Compliance and Information Bureau: I. Introduction 1. The Compliance and Information Bureau (CIB) has before it a Petition for Reconsideration filed by Motorola, Inc. (Motorola) under Section 1.106 of the Commission's rules, 47 C.F.R.  1.106, requesting cancellation or mitigation of the monetary forfeiture issued against Station KNDH363 pursuant to Section 503 of the Communications Act, as amended, (Act), 47 U.S.C.  503, for violation of Sections 17.48, 17.50 and 17.51 of the Commission's rules. 47 C.F.R.  17.48, 17.50, 17.51. For the reasons noted below, we deny the Petitioner's request for Reconsideration. We also find that a forfeiture for $5,000 is warranted. II. Background 2. On December 16, 1992, FCC agents from CIB's Norfolk Field Office inspected Motorola's tower facility located in Summerfield, North Carolina, at N-36-13-00, Longitude, W- 079-54-28, Latitude. The inspection revealed that all of the tower lights were extinguished. The inspection also revealed that the paint on the tower was so badly faded and peeling that there were no contrasting orange and white bands. The FCC agent then notified the nearest Federal Aviation Administration (FAA) flight service station and Motorola that the tower lights were extinguished. The Norfolk Field Office issued Notices of Apparent Liability (NAL) to Motorola and 59 other licensees on the tower for $10,000 for violating the Commission's rules regarding tower lighting and painting. In its response to the NAL, Motorola contended that the forfeiture should be reduced or mitigated because it contacted the FAA about the light outage on October 16, 1992, and stayed in contact with the FAA until the light outage was fixed on December 18, 1992. In support of this contention, Motorola submitted information from the FAA. Based on this information, the Norfolk Field Office issued a Notice of Forfeiture (NOF) to Motorola that reduced the forfeiture amount to $5,000. From this NOF, Motorola now appeals. III. Discussion and Conclusion 3. In its response to the NOF, Motorola requests cancellation or mitigation of the forfeiture on the basis that Motorola had contracted in October 1992 to have the Summerfield tower painted in May 1993 "when conditions permitted the proper application of paint." Motorola also asked that the amount of the forfeiture be prorated among the various licensees using the tower in order to reduce the amount each licensee must pay for the violation. 4. Initially, we note that the monetary amount assessed in the NOF was calculated based on the Commission's Forfeiture Policy Statement and Section 503 of the Act. The Commission's forfeiture guidelines were vacated by the court in United States Telephone Assn. v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). In light of the court's decision, we are evaluating the forfeiture amount in light of the factors set forth in Section 503(b) of the Act. Section 503(b) of the Act requires that the Commission take into account the nature, circumstances, extent, and gravity of the violation 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. 47 U.S.C.  503 (b)(2)(D). 5. Section 17.48 requires that each licensee notify the nearest FAA flight service center of any improperly functioning lights whenever the problem cannot be repaired within 30 minutes. 47 C.F.R.  17.48. According to the record, Motorola notified the FAA prior to the inspection of the tower by the field agents, and presented evidence that supported this contention. Moreover, Motorola presented information that it stayed in contact with the FAA until the light outage was corrected. Thus, it appears that correcting the light outage stemmed from Motorola's own efforts and not a hasty attempt to comply due to the FCC inspection on December 16, 1992. 6. We reject Motorola's argument, however, that the forfeiture amount should be reduced because Motorola took action to paint the tower. Motorola did not present evidence that its efforts to paint the tower began prior to the FCC's inspection of the tower. Although Motorola claims that it contracted to have the tower inspected in October 1992, Motorola did not submit evidence to corroborate this contention. Even assuming that Motorola did receive a recommendation from its contractor based on an October 1992 inspection that the tower needed to be painted, it is unclear what "conditions" Motorola believes could justify a five month delay after the FCC inspection and an eight month delay after its own inspection to paint the tower. The condition of the paint on the tower indicated longstanding neglect. Between October 1992 and December 16, 1992, whenthe FCC inspection occurred, Motorola had ample time to repaint the tower. Moreover, Motorola presented no justification for the extended delay in correcting the tower condition that the inspections revealed. 7. Lastly, we note that Commission records indicate that the other Notices of Apparent Liability were not sent to the licensees' addresses of record in accordance with the Commission's rules. See 47 C. F. R.  1.5, 1.80 (f)(2). Because the other licensees were not properly informed of the notices of apparent liability assessing a forfeiture against them, they cannot be held liable. Therefore, it is unnecessary to address Motorola's contention that the forfeiture amount be prorated among all of the licensees on the tower. 8. Based on the consideration of the facts before us in light of Section 503 of the Act, we believe that a forfeiture for $5,000 is warranted. IV. Ordering Clauses 9. IT IS ORDERED, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.106 of the Rules, 47 C.F.R.  1.106, that the Petition for Reconsideration is DENIED. 10. IT IS FURTHER ORDERED that Motorola must pay the forfeiture amount of five thousand dollars ($5,000) within thirty (30) days of the release date of this Order, or file an Application for Review pursuant to Section 1.115 of the Commission's rules, 47 C.F.R. 1.115. Payment may be made by check, money order, or credit card drawn on a U.S. financial institution, payable to the Federal Communications Commission. Please place NAL/Acct. No. 315NF0044 on the remittance and mail to: Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 Forfeiture penalties not paid within 30 days will be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C. 504(a). 11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by certified mail, return-receipt requested to Motorola. FEDERAL COMMUNICATIONS COMMISSION Richard D. Lee Acting Chief, Compliance and Information Bureau