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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
Tidewater Communications, Inc. ) File Number EB-01-NF-276
Owner of Antenna Structure No. ) NAL/Acct. No. 200232640001
1028287 ) FRN: 0003-3044-90
Chesapeake, Virginia 23320
Adopted: May 9, 2002 Released: May 13,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a monetary
forfeiture in the amount of ten thousand dollars ($10,000) to
Tidewater Communications, Inc. (``Tidewater'') for willful
violation of Section 17.51(a) of the Commission's Rules
(``Rules'').1 The noted violation involves Tidewater's
failure to exhibit lighting on its Windsor, Virginia antenna
2. On December 12, 2001, the Commission's Norfolk, Virginia
Resident Agent Office (``Norfolk Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL''),2 finding
Tidewater apparently liable for a forfeiture in the amount of
$10,000 for willful violation of Section 17.51(a) of the
Rules. On January 11, 2002, Tidewater filed a response.
3. On November 6, 2001, the Norfolk Office received information
originating from a Navy pilot's report that there was an unlit
antenna structure in Windsor, Virginia. After confirming this
report by visual inspection on the same day, a Resident Agent
from the Norfolk Office ascertained that the antenna
structure, Antenna Structure Registration (``ASR'') Number
1028287, belonged to Tidewater.
4. On November 16, 2001, the Norfolk Office issued a Notice of
Violation (``NOV'') to Tidewater. First, the NOV cited
apparent violation of Section 17.51(a) of the Rules, which
requires an owner to exhibit red obstruction lighting.
Second, it cited apparent violation of Section 17.47(a) of the
Rules, 3 which requires an owner to (1) observe antenna
structure lights at least once every 24 hours either visually
or by an automatic indicator of lighting failure, or (2)
provide a properly maintained automatic alarm system
indicating lighting failure. On November 30, 2001, Tidewater
filed a response to the NOV.
5. On December 12, 2001, the Norfolk Office issued an NAL
for the Section 17.51(a) violation. In its January 11, 2002
response to the NAL, Tidewater states that, pursuant to
Section 17.47(a) of the Rules, it observes the antenna
structure's lights at least once every 24 hours by means of an
automatic light system, that includes an alarm. Tidewater
notes that, after being notified of the lighting failure by
telephone from the Resident Agent, it found that the alarm did
not indicate an outage of the lighting and that the alarm
itself did not otherwise appear to be malfunctioning.
Tidewater further explains that its retained independent
contractor subsequently found and repaired several system
components, accounting for both the failure of the lighting
and the failure of the alarm system.
6. Tidewater argues that the failure of the alarm system does
not show willful violation of Section 17.51(a) of the Rules in
the sense of a conscious or deliberate commission or omission
of an act, but rather shows inadvertence. Tidewater cites
Vernon Broadcasting,4 in which the Commission canceled a
forfeiture for a fencing violation because there was no
indication that the licensee was aware of the violation or had
failed to monitor the condition of the site prior to the
Commission's inspection. Tidewater also submits that there is
no probative and acceptable evidence that the violation was
repeated apart from the one day that the Navy pilot and the
Norfolk Office Resident Agent observed the antenna structure
on November, 6, 2001. Finally, Tidewater maintains that
imposition of the base amount forfeiture of $10,000 for this
type of violation under Section 1.80(b)(4)5 is too high and
claims that the Norfolk Office did not consider its good faith
or voluntary disclosure, and its history of overall
7. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended (``Act''),6 Section 1.80 of the Rules,7 and
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.8 In examining Tidewater's response, 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.9
8. Tidewater does not contest that the antenna structure lights
were unlit on November 6, 2001. Rather, it argues that the
outage was not willful because its automatic light system and
alarm malfunctioned and therefore failed to indicate that the
outage had occurred. Pursuant to Section 17.47(a)(1) of the
Rules, an owner is required to observe the antenna structure's
lights at least once every 24 hours either visually or by
observing a properly maintained automatic indicator that
registers any failure of the lights; or, pursuant to Section
17.47(a)(2) of the Rules, an owner is required to provide a
properly maintained automatic alarm system designed to detect
any failure of the lights and to provide indication of such
failure to the owner.
9. Tidewater presents no evidence, or even claims, that it has
ever inspected its automatic light system and alarm equipment
prior to the light outage and the tower inspection by the
Norfolk Office. Moreover, contrary to its intentions,
Tidewater's reliance on Vernon Broadcasting is unavailing,
because there the damage to the antenna structure fencing
occurred shortly after the owner had last inspected the
facility and just prior to the Commission's inspection that
detected the violation.10 Accordingly, we reject Tidewater's
argument that the lighting outage was not willful due to the
failure of its automatic light system and alarm.11
10. Tidewater's claim that there is no showing of repeated
violations beyond the single day the outage was observed is
immaterial. The NAL alleged that Tidewater's act was willful
and did not reach the question of whether it was repeated.
11. Finally, Tidewater's argument that the forfeiture should at
least be reduced is not persuasive. The base forfeiture
amount for this violation is $10,000.12 Tidewater presents no
showing of good faith beyond what we have already considered
as inadequate to overcome a finding of willfulness.
Furthermore, the only indication of voluntary disclosure
occurred after the outage was detected. Moreover, Tidewater
does not have a history of overall compliance with the
Commission's Rules.13 Consequently, in this case, we will
impose the originally proposed forfeiture of $10,000.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b)
of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,14 Tidewater Communications, Inc, IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for failure to exhibit obstruction lighting on its
antenna structure in willful violation of Section 17.51(a) of
13. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules 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.15 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232640001 and FRN
0003-3044-90. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables Group,
445 12th Street, S.W., Washington, D.C. 20554.1614. IT IS FURTHER ORDERED that, a copy of this Order shall be
sent by Certified Mail - Return Receipt Requested - to
Tidewater Communications, Inc., 870 Greenbrier Circle, Suite
399 Chesapeake, Virginia, 23320, and to its counsel, Gary S.
Smithwick, Esq., Smithwick & Belendiuk, P.C., 5028 Wisconsin
Avenue, N.W., Suite 301, Washington, D.C. 20016.
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.
200232640001 (Enf. Bur., Norfolk Office, rel. Dec. 12, 2001).
3 47 C.F.R. § 17.47(a).
4 Vernon Broadcasting, Inc., 60 RR 2d 1275 (1986).
5 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
9 47 U.S.C. § 503(b)(2)(D).
10 The Commission found the violation was not willful because the
licensee monitored the condition of the antenna site through
regular inspections, and to the extent that the licensee found
the fence to be in good condition during its inspection of the
antenna site shortly before the Commission inspection, the
licensee was unaware of the violation.
11 See Eure Family Limited Partnership, 16 FCC Rcd 21302 (Enf.
Bur. 2001); recon. denied, DA 02-878, rel. April 17, 2002.
12 See 47 C.F.R. § 1.80(b)(4), Note to Paragraph (b)(4):
Guidelines for Assessing Forfeitures.
13 See Tidewater Communications, 11 FCC Rcd 7814 (1996); recon.
denied, 12 FCC Rcd 11830 (1997).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.