Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number: EB-02-BF-
Niagara Mohawk Power ) 250
Owner of Antenna Structure # ) NAL/Acct. No.
1002926 ) 200332280004
Miser Hill, Rutland, New York )
FRN: 0005 9076 21
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 7,
By the Resident Agent, Buffalo Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Niagara Mohawk Power Corporation,
(``NMPC'') owner of antenna structure #1002926, has apparently
violated Section 17.50 of the Commission's Rules (``Rules'')1 by
failing to clean and repaint its antenna structure to maintain
good visibility. We conclude that NMPC is apparently liable for
a forfeiture in the amount of ten thousand dollars ($10,000).
2. On August 27, 2002, an agent of the Buffalo Office
inspected the antenna structure bearing FCC antenna structure
registration (``ASR'') #1002926 and located on Miser Hill,
Rutland, New York. At the time of inspection, the tower's paint
was chipped and faded reducing the visibility of the structure.
3. On September 3, 2002, the Buffalo Office issued an
Official Notice of Violation (``NOV'') to NMPC for the violation
found during the August 27, 2002 inspection. Agent Stanbro cited
Niagara Mohawk Power Corporation for non-compliance with Section
17.50 of the Rules.
4. On September 11, 2002, the Buffalo Office received a
response from Mr. Robert Tiller, Communications Engineer, Niagara
Mohawk Power Corporation. Mr. Tiller stated as of September 10,
2002, the tower (#1002926) was being repainted and would be
finished within the next four days, depending on the weather.
5. Section 17.50 of the Rules states that antenna
structures requiring painting under this part shall be cleaned or
repainted as often as necessary to maintain good visibility. The
agent observed that the tower paint was badly faded and chipped,
making the tower a hazard to air navigation.
6. Based on the evidence before us, we find that NMPC
willfully2 and repeatedly3 violated Section 17.50 of the rules by
failing to repaint the tower to maintain good visibility. The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303(1999)
(``Forfeiture Policy Statement'')4, sets the base forfeiture
amount at $10,000 for failure to comply with prescribed lighting
and/or marking of antenna structures. In assessing the monetary
forfeiture amount, we must take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Communications
Act of 1934 (``Act''), as amended5, which include 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. Applying the Forfeiture Policy Statement
and the statutory factors to the instant case and applying the
inflation adjustments, we believe that a ten thousand dollar
($10,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6, and Sections 0.111, 0.311 and 1.80 of the
Rules7, Niagara Mohawk Power Corporation is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for willful and repeated violation of
Section 17.50 of the Commissions Rules.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Niagara Mohawk Power Corporation, SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332280004 and FRN: 0005 9076 21.
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. 200332280004.
11. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
12. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
13. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical and Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Niagara Mohawk Power Corporation, 300 Erie
Blvd. W., Syracuse, New York 13612
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
Buffalo, New York Office
1 47 C.F.R. § 17.50.
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provide that ``the
term `willful', when used with reference to the commission or
omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to
violate any provision of this Act....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
3 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference to
the commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.