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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
Adopted: July 3, 2001 Released: July 6,
By the Chief, Enforcement Bureau:
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,
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
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.
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
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.