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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Qualicom Systems, Inc. )
File Number EB-08-TP-0307
Owner of Antenna Structure )
NAL/Acct. No. 200932700003
Estero, FL 33928 )
Antenna Structure Registration )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 23, 2008
By the District Director, Tampa Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Qualicom Systems, Inc. ("Qualicom"), owner of antenna structure
number 1012977 located in Estero, Florida, apparently willfully and
repeatedly violated Section 17.4(g) of the Commission's Rules
("Rules") by failing to display in a conspicuous place the Antenna
Structure Registration ("ASR") number for its antenna structure and
apparently repeatedly violated Section 17.48(a) of the Rules by not
informing the Federal Aviation Administration ("FAA") of a malfunction
of the antenna structure lighting. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Qualicom is apparently liable for a forfeiture in the amount of five
thousand dollars ($5,000).
2. On September 15, 2008, in response to a complaint of an unlit tower,
an agent from the Commission's Tampa Office of the Enforcement Bureau
("Tampa Office") contacted the FAA's Flight Service Station and was
advised that a Notice to Airmen ("NOTAM") had not been issued for an
antenna structure with ASR number 1012977 in Estero, Florida.
3. On September 16, 2008, an agent from the Tampa Office conducted an
inspection of antenna structure number 1012977 and observed, several
hours prior to sunrise, that the nighttime aviation red top beacon was
not functioning. Instead the daytime white flashing obstruction light
was on at nighttime. Additionally, the ASR number was not displayed
anywhere near the antenna structure base.
4. On September 17, 2008, an agent from the Tampa Office performed
another inspection of antenna structure number 1012977 and observed
that the ASR number was still not conspicuously displayed anywhere
near the antenna structure base.
5. On September 17, 2008 an agent from the Tampa Office spoke to a
representative of Qualicom, who stated that he was aware that the
aviation red top beacon was malfunctioning and had been working to
have it repaired. He stated he was unaware of the requirement to
contact the FAA in the event of a malfunctioning antenna structure
light. The agent provided him the FAA contact information. He also was
unaware if the ASR number for antenna structure number 1012977 was
posted anywhere near the structure's base.
6. In a subsequent conversation on September 30, 2008, the Qualicom
representative stated that he became aware of the red top beacon
malfunction on September 9, 2008.
7. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly 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) of the Act 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 once or for more than one day.
8. Section 17.4(g) of the Rules requires that the ASR number be displayed
in a conspicuous place so that it is readily visible near the base of
the antenna structure. On September 16 and 17, 2008, the ASR number
for antenna structure number 1012977 was not displayed at the base of
the tower. Qualicom was not aware of any signs listing the ASR number
around antenna structure number 1012977.
9. Section 17.48(a) of the Rules requires that the owner of an antenna
structure, registered by the Commission and assigned lighting
specifications, shall report immediately any extinguishment or
improper functioning of any top steady burning light not corrected
within 30 minutes. Antenna structure number 1012977 is required to be
painted and lit. Qualicom became aware that the structure's top red
beacon was not lit on September 9, 2008. On September 16, 2008, an
agent from the Tampa Office observed that the top red beacon was still
not lit. Qualicom was unaware of the requirement to notify the FAA of
a lighting outage on September 17, 2008 and had not contacted the FAA
prior to that date.
10. Based on the evidence before us, we find that Qualicom apparently
willfully and repeatedly violated Section 17.4(g) of the Rules by
failing to display the ASR number at the base of antenna structure
number 1012977 and apparently repeatedly violated Section 17.48(a) of
the Rules by not reporting immediately a malfunctioning light, which
could not be corrected within 30 minutes, to the FAA.
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 failing to file required information is
$3,000. Section 1.80 of the Rules does not establish a base forfeiture
amount for failure to post the ASR number. The Commission has
determined, however, that an appropriate base forfeiture amount for
failure to post the ASR number is $2,000 per violation. In assessing
the monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(E) 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, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Qualicom is apparently liable for a
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act of 1934, as amended, and Sections 0.111, 0.311, 0.314 and 1.80 of the
Commission's Rules, Qualicom Systems, Inc., is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of five thousand dollars
($5,000) for violations of Sections 17.4(g) and 17.48(a) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Qualicom Systems, Inc., SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
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 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, South Central Region, Tampa Office,
2203 N. Lois Avenue, Suite 1215, Tampa, Florida, 33607 and must
include the NAL/Acct. No. referenced in the caption.
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 Qualicom Systems, Inc. at its address
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
South Central Region
47 C.F.R. S: 17.4(g).
47 C.F.R. S: 17.48(a).
47 U.S.C. S: 503(b).
The agent requested that the FAA issue a NOTAM at that time.
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."
The antenna structure is 98 meters in height above ground. Antenna
structures are required to be painted and lighted when they exceed 60.96
meters in height above ground. See 47 C.F.R. S: 17.21.
American Tower Corporation, Notice of Apparent Liability, 16 FCC Rcd 1282
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 17.4 (g),
Federal Communications Commission
Federal Communications Commission