Click here for Microsoft Word Version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from
WordPerfect or Word 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
Word or WordPerfect version or Adobe Acrobat version (above).

*****************************************************************



                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
                                )
USA Tower, Inc.                 )    File No. EB-01-NF-069
ASR 1008468                     )
Elizabeth City, North Carolina )     NAL/Acct. No.  20013264004
                                   

                        FORFEITURE ORDER 

Adopted:  July 3, 2001                       Released:   July  6, 
2001  

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary forfeiture  in the  amount of  eight thousand  dollars 
  ($8,000)  to  USA  Tower,  Inc.  (``USA  Tower'')  for  willful 
  violation  of  Section  17.51(a)  of  the  Commission's   Rules 
  (``Rules'').1   The   noted  violation  involves  USA   Tower's 
  failure to  exhibit red obstruction  lighting on its  Elizabeth 
  City, North  Carolina antenna  structure.  We  also found  that 
  USA Tower failed to notify the Federal Aviation  Administration 
  (``FAA'') of the lighting outage.

2.        On May  11, 2001,  the Commission's  Norfolk,  Virginia 
  Office  (``Norfolk  Office'')  issued  a  Notice  of   Apparent 
  Liability  for  Forfeiture  (``NAL'')  in  the  amount  of  ten 
  thousand  dollars  ($10,000)   to  USA  Tower  for  the   noted 
  violation.2  USA  Tower filed a response  to the NAL dated  May 
  22, 2001, and filed a supplement to its response dated June  1, 
  2001.

                           II.  BACKGROUND

3.        USA  Tower  owns  an   antenna  structure  located   in 
  Elizabeth  City,   North  Carolina,   with  antenna   structure 
  registration  (``ASR'')  number  1008468.   The  ASR  for   the 
  Elizabeth  City   structure  indicates  that  red   obstruction 
  lighting is  required.  On February 9,  2001 at about 7:00  PM, 
  an agent from  the Norfolk Office inspected the Elizabeth  City 
  structure and  observed that the  structure's  red  obstruction 
  lighting was  not operating.   A Commission  agent then  called 
  the  person listed as  the contact  for USA Tower  on FCC  Form 
  854,   ``FCC   Application  for   Antenna   Structure''.    The 
  Commission  agent left  a  message requesting  that  USA  Tower 
  repair the  light, and  also requested that  USA Tower  contact 
  the FAA's Raleigh  Automated Flight Service Station  (``Raleigh 
  AFSS'') to  have a  Notice to Airmen  (``NOTAM'') issued.   The 
  Commission agent  then called  the Raleigh AFSS  to report  the 
  lighting outage, and to  have a NOTAM issued.  On February  27, 
  2001, the Norfolk Office  was notified that the NOTAM had  been 
  cancelled.  

4.        On March  8, 2001,  an agent  from the  Norfolk  Office 
  spoke with Mr.  Charles L. Whitehead, Marketing Manager of  USA 
  Tower, to find out whether the light had been repaired, as  the 
  Norfolk  Office   had  received  notification   of  the   NOTAM 
  cancellation.   Mr. Whitehead indicated that he was unaware  of 
  any lighting  problems, but  would find  out if  the light  was 
  operating.  Also on March  8, 2001, pursuant to a request  from 
  the  Norfolk  Office, the  Pasquotank  County,  North  Carolina 
  Sheriff's  Department  observed the  structure  and  determined 
  that the  light was operating.   On  March 12, 2001, USA  Tower 
  notified  the Norfolk  Office that  on December  11, 2000,  and 
  February 22,  2001, the light  was working and  that the  alarm 
  company had  no record  of an  outage alarm  for the  Elizabeth 
  City location.  On March 30, 2001, the Norfolk Office issued  a 
  Notice of  Violation (NOV) to  USA Tower.  On  April 24,  2001, 
  the Norfolk  Office received USA Tower's  response to the  NOV.   
  In its response, USA  Tower stated that it had been unaware  of 
  the  lighting outage  at the  tower and  acknowledged that  USA 
  Tower had not notified the FAA.  

5.        On May 11, 2001,  the Norfolk Office  issued an NAL  in 
  the amount of $10,000  to USA Tower for failure to exhibit  the 
  required  red  obstruction  lighting  on  the  Elizabeth   City 
  structure  in willful  violation  of Section  17.51(a)  of  the 
  Rules.   In  its  response  to  the  NAL,  USA  Tower  requests 
  reduction  or cancellation  of  the proposed  forfeiture.   USA 
  Tower clams  that it was not aware  of the failure of  lighting 
  on its structure because its alarm system failed to signal  USA 
  Tower or its  contractor for providing alarm systems  services, 
  Hi-Tech  Enterprises   (``Hi-Tech''),  indicating  a  loss   of 
  lighting.   USA  Tower   includes  a  statement  from   Hi-Tech 
  indicating that  no signals  were received from  the USA  Tower 
  antenna  from December  1, 2000,  through March  9, 2001.   USA 
  Tower  states  that  because  of  Hi-Tech's  apparently  faulty 
  system,  USA  Tower is  contracting  with  another  company  to 
  provide alarm  systems services.   According to  USA Tower,  it 
  did not notify the FAA of the extinguished lighting because  it 
  was unaware of the loss of lights.

6.        USA Tower  also argues  that the  forfeiture should  be 
  cancelled   because    the   violation    was   not    willful.  
  Specifically,  USA  Tower  states  that  an  ``unexpected   and 
  unpreventable  failure of  a  circuit breaker  in  the  tower's 
  electrical system'' caused the loss of lighting.  According  to 
  USA  Tower,   the  failure  of  the   circuit  breaker  is   an 
  unforeseeable  event,  and  the  defective  part  was  replaced 
  immediately upon  discovering that  it was  defective.  If  the 
  Commission declines to  cancel the proposed forfeiture,  argues 
  USA  Tower, it  would be  appropriate  to reduce  the  proposed 
  forfeiture  because  the   violation  was  the  result  of   an 
  unexpected event and not  under the control of USA Tower.   USA 
  Tower  contends  that  it  was  unforeseeable  that  a  circuit 
  breaker in the panel  box for the tower would fail, and it  did 
  not choose to install a defective circuit breaker.  

7.        In its supplement to the response to the NAL, USA Tower 
  states  that  it  has installed  a  new  alarm  system  at  the 
  Elizabeth City location in an effort to prevent the  recurrence 
  of the  situation that gave rise to  the NAL.  Also, USA  Tower 
  reports  that it  has  retained  a new  contractor  to  provide 
  twenty-four hour monitoring services for its tower.  USA  Tower 
  maintains  that it  has acted  in good  faith in  all  respects 
  regarding the  incident that underlies the  NAL, and thus,  the 
  forfeiture should be cancelled.  

                           III.  DISCUSSION

8.        As the NAL states, the  forfeiture amount in this  case  
  was assessed  in accordance  with Section 503(b)  of the  Act,3 
  Section 1.80  of the  Rules,4 and  The Commission's  Forfeiture 
  Policy Statement and Amendment of Section 1.80 of the Rules  to 
  Incorporate  the  Forfeiture  Guidelines,  12  FCC  Rcd   17087 
  (1997), recon.  denied, 15  FCC Rcd 303  (1999).  In  examining 
  USA Tower's  response, and supplement  thereto, 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.5

9.        Section 17.51(a)  of the  Rules provides  that all  red 
  obstruction lighting must  be exhibited from sunset to  sunrise 
  unless  otherwise specified  in the  ASR.  USA  Tower does  not 
  dispute our  finding that it violated  Section 17.51(a) of  the 
  Rules  by failing  to exhibit  red obstruction  lighting.   USA 
  Tower argues, however, that the lighting outage was the  result 
  of an  unexpected and unforeseeable  event, and therefore,  was 
  not  ``willful''.  We  disagree.  The  fact that  a  licensee's 
  violation  occurred through  inadvertence does  not prevent  it 
  from being  willful.  PJB Communications  of Virginia, Inc.,  7 
  FCC  Rcd 2088  (1992).  Section  17.47  of the  Rules  requires 
  antenna  structure owners  registered with  the Commission  and 
  subject to  lighting specifications to  make an observation  of 
  the antenna  structure's lights  at least once  every 24  hours 
  either  visually   or  by  observing   an  automatic   properly 
  maintained indicator designed  to register any failure of  such 
  lights,  to  insure  the  proper  functioning  of  the  antenna 
  structure's lights.6   Alternatively, antenna structure  owners 
  are required  to ``provide and  properly maintain an  automatic 
  alarm system designed to detect any failure of such lights  and 
  to  provide indication  of such  failure to  the owner''.7   It 
  does not appear from  the record before us that USA Tower  made 
  daily observations  of its Elizabeth City  tower, nor does  USA 
  Tower present  any evidence that it  had properly inspected  or 
  maintained its  automatic alarm systems,  which would have  led 
  it  to discover  the lighting  violations.  Thus,  USA  Tower's 
  lighting violations were willful.8  

10.       Moreover, we do not  believe that USA Tower's  reliance 
  on  its  contractor  warrants  mitigation  of  the   forfeiture 
  amount.  See  MTD, Inc., 6  FCC Rcd 34,  35 (1991);  Wagenvoord 
  Broadcasting  Co., 35  FCC  2d 361  (1972).   Furthermore,  USA 
  Tower's remedial  efforts to  correct the violation  are not  a 
  mitigating factor.  See Station KGVL, Inc., 42 FCC 2d 258,  259 
  (1973).

11.       Finally, USA Tower argues  that we should consider  its 
  history of  overall compliance with the  Rules.  We will do  so 
  and reduce the $10,000 forfeiture to $8,000.

                        IV.  ORDERING CLAUSES

12.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503(b)  of   the  Communications  Act   of  1934,  as   amended 
  (``Act''),9 and  Sections 0.111,  0.311 and  1.80(f)(4) of  the 
  Rules,10 USA Tower IS  LIABLE FOR A MONETARY FORFEITURE in  the 
  amount  of  eight thousand  dollars  ($8,000)  for  failure  to 
  exhibit red  obstruction lighting on  its antenna structure  in 
  willful violation of Section 17.51(a) of the Rules.11

13.       Payment of the forfeiture shall  be made in the  manner 
  provided for in Section  1.80 of the Rules12 within 30 days  of 
  the  release of  this Order.   If the  forfeiture is  not  paid 
  within the  period specified, the case  may be referred to  the 
  Department  of  Justice  for  collection  pursuant  to  Section 
  504(a) of the Act.13  Payment shall be made by mailing a  check 
  or  similar instrument,  payable to  the order  of the  Federal 
  Communications  Commission,   to  the  Federal   Communications 
  Commission,  Forfeiture  Collection  Section,  Finance  Branch, 
  P.O.  Box 73482,  Chicago,  Illinois 60673-7482.   The  payment 
  should note the  NAL/Acct. No. referenced above.  Requests  for 
  full  payment under  an installment  plan  should be  sent  to: 
  Chief,  Revenue  and Receivables  Operations  Group,  445  12th 
  Street, S.W., Washington, D.C. 20554.14

14.       IT IS FURTHER ORDERED that, a copy of this Order  shall 
  be sent  by Certified  Mail, Return Receipt  Requested, to  USA 
  Tower, Inc.,  310 U.  S. 13-17 South,  Windsor, North  Carolina 
  27983-9120,  and  to  its  counsel,  Lars  P.  Simonsen,  Esq., 
  Pritchett & Burch, PLLC, 203 Dundee Street, Post Office  Drawer 
  100, Windsor, NC 27983.

      

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

     1 47 C.F.R.  17.51(a).

  2   Notice of Apparent Liability for Forfeiture, NAL/Acct.  No. 
20013264004 (Enf. Bur., Norfolk Office, released May 11, 2001).

  3  47 U.S.C.  503(b)(2)(D).

  4  47 C.F.R.  1.80.

  5  47 U.S.C.  503(b)(2)(D).

  6   47 C.F.R.  17.47(a)(1).

  7   47 C.F.R.  17.47(a)(2).

  8   TeleCorp Communications Inc., 16 FCC Rcd 5270 (2001). 

  9   47 U.S.C.  503(b).

  10   47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  11  47 C.F.R.  17.51(a).

     12 47 C.F.R.  1.80.

     13 47 U.S.C.  504(a).

     14 See 47 C.F.R.  1.1914.