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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Holmes Farm, LLC File Number: EB-08-NY-041
Registrant of Antenna Structure NAL/Acct. No. 200832380006
ASR #1017802 FRN 0016 5102 08
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 13, 2008
By the District Director, New York Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Holmes Farm, LLC ("Holmes"), owner of antenna structure number
1017802, in Hicksville, New York, apparently willfully and repeatedly
violated Section 17.57 of the Commission's Rules ("Rules") by failing
to immediately notify the Commission of its ownership of an antenna
structure. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Holmes is
apparently liable for a forfeiture in the amount of three thousand
2. On January 14, 2006, the New York Office received a fax from the New
York Automated Flight Service Station stating that a Notice to Airman
("NOTAM ") had been issued three times for a light outage on antenna
structure number 1017802. According to the NOTAM, the lights had been
out since December 14, 2005.
3. On January 20, 2006, an agent in the Commission's New York Office
searched the Commission's Antenna Structure Registration ("ASR")
database, which showed that the registered owner of antenna structure
number 1017802 was Motorola, Inc. ("Motorola"). Motorola did not
respond to several messages left by the agent at the telephone number
listed for Motorola in the ASR database.
4. On January 26, 2006, the agent reviewed antenna structure inspection
records, which identified Pinnacle Towers LLC ("Pinnacle") as the
manager of antenna structure number 1017802. The Agent contacted
Pinnacle and spoke with a Pinnacle representative who confirmed that
Pinnacle had submitted the outage information to the FAA. The
representative stated, however, that he was unsure of the ownership of
the antenna structure. The Agent advised the Pinnacle representative
that FCC records showed Motorola as the current owner of the antenna
structure and that if Pinnacle was in fact the owner of the antenna
structure, Pinnacle would be in violation of the Commission's rules
for not immediately notifying the Commission of a change in the
5. On January 27, 2006, a Pinnacle representative called the agent to
report that the owner of the antenna structure is Holmes. On February
1, 2006, the agent received a fax from Pinnacle confirming that the
antenna structure was owned by Holmes and provided a contact name at
Holmes. On that same day, the agent checked the ASR database and found
that the ownership information had been updated on January 26, 2006,
and now lists Pinnacle as the registered owner of antenna structure #
6. On February 28, 2006, the New York Office sent a Letter of Inquiry to
Holmes to obtain additional information regarding the ownership of the
antenna structure. On March 20, 2006, the New York Office received a
response from Holmes stating that Holmes is the owner of the real
property on which the antenna structure is located, but not the owner
of the antenna structure. Holmes included with its response a copy of
a Memorandum of Lease and Consent, dated December 20, 1999, in which
Motorola assigned its lease for the antenna site to Pinnacle. The
Memorandum of Lease and Consent also referenced a "Purchase
Agreement," dated June 29, 1999, pursuant to which Motorola sold the
antenna structure to Pinnacle.
7. On December 21, 2006, the New York Office issued a Notice of Apparent
Liability for Forfeiture in the amount of $3,000 to Pinnacle. In its
response to the NAL, Pinnacle submitted documentation showing that
Holmes in fact owns both the real property and antenna structure #
1017802. Holmes confirmed its ownership of the tower in its response
to a Letter of Inquiry issued to Holmes by the New York Office.
8. In Holmes's response to the Letter of Inquiry, Holmes reports that the
Commission granted its application to change the ownership information
in the ASR database on June 1, 2007. According to the ASR database,
Holmes filed its application to change the ownership information on
May 23, 2007. Although Holmes states in its response to the Letter of
Inquiry that it did not determine that it owns the tower until the
Spring of 2007, there is evidence that Holmes knew that it owned the
tower long before that time. In the materials submitted by Pinnacle in
its response to the NAL, there is a letter to Susan M. Thomas,
Managing Member of Holmes, from Tracey W. Barton, FAA/FCC Compliance
Specialist, Global Signal, dated March 24, 2006. In that letter, Ms.
Barton provided documents to Ms. Thomas showing that Holmes is indeed
the owner of the tower. The letter further advised Ms. Thomas that the
FCC needed to be notified of the change.
9. Section 503(b) of the Act provides that any person who willfully fails
to comply substantially with the terms and conditions of any license,
or willfully fails to comply with any of the provisions of the Act or
of any rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term "willful" as used
in Section 503(b) has been interpreted to mean simply that the acts or
omissions are committed knowingly. The term "repeated" means the
commission or omission of such act more than one or for more than one
10. Section 17.57 of the Rules requires the owner of an antenna structure
to immediately notify the Commission, using FCC Form 854, upon any
change in structure height or change in ownership information. In its
response to the New York Office's Letter of Inquiry, Holmes confirms
that it owns antenna structure # 1017802. The documents provided by
Pinnacle in its response to the NAL reveal that Holmes was provided
evidence of its ownership of antenna structure # 1017802 as early as
March 24, 2006. Holmes did not notify the FCC of the change in
ownership information, however, until May 23, 2007, more than one year
later. Based on the evidence before us, we find that Holmes willfully
and repeatedly violated Section 17.57 of the Rules by failing to
immediately notify the Commission of a change in ownership information
for antenna structure number # 1017802.
11. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for failure to file required forms or
information with the Commission is $3,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement and the
statutory factors, we conclude that Holmes, owner of antenna structure
number # 1017802, is apparently liable for $3,000 forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's Rules, Holmes Farm, LLC, is hereby NOTIFIED
of this APPARENT LIABILITY FOR A FORFEITURE in the amount of three
thousand dollars ($3,000) for violations of Section 17.57 of the
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Holmes Farm, LLC, SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
14. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment[s] by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, Suite 1151, New York, NY 10014, within thirty (30) days
from the release date of this Notice of Apparent Liability for
Forfeiture and must include the NAL/Acct. No. referenced in the
16. 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 submitted.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent by Certified Mail, Return
Receipt Requested, and regular mail, to Holmes Farm, LLC, at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
47 C.F.R. S: 17.57.
47 U.S.C. S: 503(b).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732380004
(Enf. Bur., New York Office, released December 21, 2006)("NAL").
See Letter of Inquiry from Daniel W. Noel, District Director, New York
Office, Northeast Region, Enforcement Bureau, to Susan M. Thomas, Holmes
Farm LLC, dated February 8, 2008; Letter from Susan M. Thomas, Managing
Member, Holmes Farm, LLC.
See Application No. A0550436.
See Letter from Tracey Barton, FAA/FCC Compliance Specialist, Global
Signal, to Susanna Thomas, Holmes Farm, LLC, dated March 24, 2006. Global
Signal is Pinnacle's former parent company. See Pinnacle's response to
NAL at n. 1.
The documents provided to Holmes by Pinnacle were (1) 1964 Antenna Site
and Lease Agreement between Holmes's predecessor-in-interest (Dorothy H.
Menah and W. Lincoln Holmes) and Motorola's predecessor-in-interest
(Motorola Communications and Electronics, Inc.); (2) 1999 Memorandum of
Lease and Consent, which references a June 29, 1999 Agreement for Purchase
and Sale of Assets, between Motorola and Pinnacle Tower's Inc., Pinnacle's
predecessor-in-interest; and (3) relevant portions of the 1999 Agreement
for Purchase and Sale of Assets.
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[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."
47 C.F.R. S: 17.57.
We note that, according to the documents submitted by Pinnacle, Holmes has
always owned both the real property and the tower, but has leased them,
initially to Motorola and then to Motorola's successors-in-interest. Our
finding here concerning Holmes's failure to notify the FCC of a change in
ownership information does not address whether Holmes always should have
been listed in the ASR database as the tower's owner.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(D).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80, 17.57.
Federal Communications Commission
Federal Communications Commission