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

In the Matter of                )
                                )
Florida Power and Light Company )    File Number EB-01-TP-371
9250 West Flagler Street        )
Miami, FL 33174                )     NAL/Acct. No.  20023270004
                                )
Antenna Structure Registration 1061028  )    FRN   Number   0001-

8253-14
                                )
Miami, FL 33174                 )
                                   

                        FORFEITURE ORDER 

Adopted:  April 23, 2002                     Released:      April 
25, 2002

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  Florida   Power  and  Light  Company   (``Florida 
  Power'')  for willful  violation  of Section  17.51(a)  of  the 
  Commission's Rules (``Rules'').1  The noted violation  involves 
  Florida  Power's  failure   to  exhibit  all  red   obstruction 
  lighting on  its Palm  Bay, Florida  antenna structure  between 
  sunset and sunrise.  

2.        On January  8, 2002,  the Commission's  Tampa,  Florida 
  Field Office  (``Tampa Office'')  issued a  Notice of  Apparent 
  Liability  for  Forfeiture  (``NAL'')  in  the  amount  of  ten 
  thousand  dollars ($10,000)  to  Florida Power  for  the  noted 
  violation.2   Florida Power  filed a  response  to the  NAL  on 
  January 28, 2002.

                           II.  BACKGROUND

3.        On September 12,  2001, the  Commission's Tampa  Office 
  received  a  complaint  regarding  a  lighting  problem  on  an 
  antenna   structure   with   antenna   structure   registration 
  (``ASR'')   number  1061028,   in  Palm   Bay,  Florida.    The 
  complainant alleged that  the lighting problem had existed  for 
  approximately one  year and that on  several occasions, he  had 
  attempted  to  contact  the  tower  owner  but  was  unable  to 
  satisfactorily  resolve the  problem.  The  FCC's ASR  database 
  confirmed  that  Florida  Power was  the  owner  of  the  tower 
  assigned ASR number 1061028 and located in Palm Bay.  The  same 
  day, the Tampa Office contacted Florida Power to determine  the 
  status of  the lights on the  antenna structure.  On  September 
  13, 2001, Mr. Michael Lawler of Florida Power left a  telephone 
  message that  the Palm Bay tower  lights had been repaired  the 
  previous  evening.   On October  29,  2001,  the  Tampa  Office 
  received another  complaint regarding the  lighting problem  on 
  the Palm Bay  antenna structure.  The complainant alleged  that 
  the red strobe tubes  had been removed due to interference  and 
  that  for  the  last  several  months,  white  daylights   were 
  flashing 24  hours a  day and  the obstruction  lights were  on 
  constantly.  

4.        On October  30, 2001,  the Tampa  Office contacted  the 
  Federal  Aviation  Administration (``FAA'')  and  was  notified 
  that a  Notice to Airmen  (``NOTAM'') had not  been issued  for 
  the antenna  structure.  FCC  Form 854,  ``FCC Application  for 
  Antenna Structure,'' for Florida Power indicates that the  Palm 
  Bay  antenna structure  is to  exhibit red  obstruction  lights 
  from sunset to sunrise.  The Tampa Office made another  attempt 
  to  contact  Mr.   Lawler.   Mr.  Lawler's  voicemail   message 
  indicated that he would be out of the office until October  31, 
  2001.  The  Tampa Office then called  the person listed on  FCC 
  Form 854, Mr. Tony  Padilla.  Mr. Padilla stated that he  would 
  investigate and provide  the status of the lights and  lighting 
  specifications for  the structure.   On November  9, 2001,  the 
  Tampa  Office left  a voicemail  message  for both  Lawler  and 
  Padilla  requesting the  status of  the lights  on the  antenna 
  structure.  No response was received.3  

5.        On November 19,  2001, the FAA  confirmed that a  NOTAM 
  still had not been  issued for the antenna structure.  The  FAA 
  also  confirmed  that  the  lighting  specifications  for   the 
  antenna structure  are medium  white strobe  lights during  the 
  day and  red lights  at night.   On November  27, 2001,  agents 
  from the  Tampa Office performed an  inspection of the  antenna 
  structure  site.    The  agents  observed   the  structure   at 
  approximately  4:25 P.M.   During  the inspection,  the  agents 
  observed flashing strobe lighting at the top and middle of  the 
  structure.  The  agents also observed  red sidelights, and  red 
  beacons installed at the middle and top of the structure.   The 
  agents returned to the  site on November 27, 2001 after  sunset 
  at approximately 6:00 P.M.  The agents noted that the only  red 
  lights illuminated were  at the 2/3 level sidelights.  A  white 
  light  was  flashing  at  the  top.   In  the  middle  of   the 
  structure, a  white light was flashing  only on the south  side 
  of the  structure.  No red  beacons were lit  in the middle  of 
  the structure.   The red sidelights at  the 1/3 level were  not 
  lit.  

6.        On January 8, 2002, the  Tampa Office issued an NAL  in 
  the amount of $10,000 to Florida Power for failure to  properly 
  exhibit red  obstruction lights between  sunset and sunrise  on 
  the Palm Bay antenna structure in willful violation of  Section 
  17.51(a)  of the  Rules.   The  Tampa Office  also  found  that 
  Florida Power  did not  notify the  FAA of  the tower  lighting 
  malfunctions.   In  its response  to  the  NAL,  Florida  Power 
  acknowledges  the  violation, but  argues  that  it  has  taken 
  substantial and swift actions to have the lighting repaired  on 
  its Palm  Bay tower,  and therefore, the  forfeiture should  be 
  rescinded  or  reduced.   Florida  Power  indicates  that  upon 
  receipt of  each of  the complaints  from the  Tampa Office  in 
  September  2001 and  October  2001, it  immediately  dispatched 
  personnel to  repair the antenna  structure's lighting  system.  
  Florida Power asserts,  however, that damage may have  occurred 
  to the lighting system after each repair and caused the  lights 
  to malfunction.   Specifically, Florida  Power speculates  that 
  ``subsequent  malfunctions may  have  been caused  by  repeated 
  lightning strikes that  damaged critical components, which  may 
  have led  to a failure  of the automatic  monitoring system  to 
  alert Florida Power personnel.''  Florida Power states that  in 
  January 14,  2002,4 it  contacted the  FAA to  report that  the 
  lights were  malfunctioning on its  Palm Bay tower.   According 
  to  Florida  Power,  a NOTAM  was  issued,  and  Florida  Power 
  technicians  investigated  and  resolved  the  tower   lighting 
  issue.  Florida Power claims to have subsequently examined  the 
  circuitry  for the  automatic  monitoring system  and  improved 
  operations.  

7.        Florida Power contends that at no time was its  antenna 
  structure ever  a ``dark tower''.   Specifically, Flower  Power 
  asserts  that at  all times,  lights  were illuminated  on  its 
  antenna structure,  although they may  not have been  operating 
  in  the proper  mode.  After  investigation and  repair of  the 
  tower's  lighting, argues  Florida  Power, it  will  now  cycle 
  properly   from  daytime   to   nighttime  operation   at   the 
  appropriate  times.  Moreover,  Florida  Power claims  that  in 
  addition  to  repairing its  antenna  structure,  it  has  also 
  improved its  antenna structure monitoring  and record  keeping 
  procedures  to guard  against  future mishaps.   Florida  Power 
  also questions the  accuracy of the complaints received by  the 
  Commission.  Specifically,  Florida Power states that  although 
  it cannot  identify precisely  when the tower  lights began  to 
  malfunction, it  does not believe the  problem existed for  the 
  length of time  alleged in the complaint.  Also, Florida  Power 
  claims that  contrary to  the complaint, it  never removed  the 
  red strobe tubes  from the tower.  Florida Power contends  that 
  in view  of the corrective measures  taken to repair the  tower 
  lighting system, the enhancements it has made to guard  against 
  future  tower lighting  failures, and  its history  of  overall 
  compliance,  the proposed  forfeiture  should be  cancelled  or 
  significantly  reduced.  Florida  Power  states that  in  cases 
  where towers  have fallen ``completely  dark'', the  Commission 
  has reduced  proposed forfeitures on the  basis of a  company's 
  history of  compliance with the  Commission's rules.5   Florida 
  Power  contends that  in this  case, its  tower was  not  dark.  
  Rather, Florida  Power states that  the tower was  lit so  that 
  aircraft could see it after sunset.  

                           III.  DISCUSSION

8.        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, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC  Rcd 
  303  (1999).  In  examining Florida  Power'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.8

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  (emphasis   added).  
  Florida Power  acknowledges that  some of  the red  obstruction 
  lights on  its Palm Bay tower  malfunctioned.  The accuracy  of 
  the complaints  is not  at issue here.   Section 1.80(b)(4)  of 
  the Rules  prescribes a base forfeiture  amount of $10,000  for 
  this  violation.   Florida  Power  argues,  however,  that  the 
  forfeiture amount  should be rescinded or  reduced in light  of 
  its immediate actions to  repair the lighting on the tower  and 
  the  enhancements it  has made  to guard  against future  tower 
  lighting  failures.   We disagree.   Florida  Power's  remedial 
  efforts to correct the violation, while commendable, are not  a 
  mitigating factor.  See Station KGVL, Inc., 42 FCC 2d 258,  259 
  (1973).  In  addition, although Florida  Power asserts that  it 
  investigated  and  repaired  the  tower's  lighting  system  in 
  January  2002,9  it is  undisputed  that  at the  time  of  the 
  November 27, 2001  inspection, it violated Section 17.51(a)  of 
  the  Rules  by failing  to  properly  exhibit  red  obstruction 
  lights between sunset and sunrise.

10.       Further, to the extent that lightning strikes may  have 
  caused subsequent malfunctions  of the tower's lighting  system 
  and  automatic  alarm  system  after  each  repair,  and  thus, 
  Florida  Power did  not receive  alerts  to timely  repair  the 
  damage, we do not believe that this warrants mitigation of  the 
  forfeiture  amount.   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.10  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''.11   It 
  does not  appear from the record  before us that Florida  Power 
  made  daily  observations  of its  Palm  Bay  tower,  nor  does 
  Florida  Power  present  any  evidence  that  it  had  properly 
  inspected  or maintained  its  automatic alarm  systems,  which 
  would  have  led  it  to  discover  the  lighting   violations.  
  Finally,  Florida Power  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

11.       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,12 Florida Power IS LIABLE FOR A MONETARY  FORFEITURE 
  in the  amount of eight thousand  dollars ($8,000) for  failure 
  to  properly exhibit  red obstruction  lighting between  sunset 
  and sunrise  on its antenna structure  in willful violation  of 
  Section 17.51(a) of the Rules.

12.       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.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, P.O. Box 73482, Chicago, Illinois 60673-7482.   The 
  payment should  note NAL/Acct.  No. 20023270004  and FRN  0001-
  8253-14.  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

13.       IT IS FURTHER ORDERED that, a copy of this Order  shall 
  be  sent  by  Certified  Mail,  Return  Receipt  Requested,  to 
  Florida  Power and  Light Company,  9250 West  Flagler  Street, 
  Miami, Florida,  33174, and to its  counsel, Nancy K.  Spooner, 
  Esq.,  Swidler Berlin  Shereff Friedman,  LLP, 3000  K  Street, 
  N.W., Suite 300, Washington, DC 20007.

      

                         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. 
20023270004 (Enf. Bur., Tampa Office, released January 8, 2002).

  3   Florida   Power    states   that   it   appears   that    a 
``miscommunication or disconnect'' occurred, and the Tampa Office 
did not receive  Mr. Padilla's  message that the  Palm Bay  tower 
lights had been repaired.

  4 Although  Florida Power's response  states that it  contacted 
the FAA on ``January 14, 2001,'' we believe, based on the date of 
the NAL, the date  of its response, and  other dates included  in 
the response that it  meant to state that  the event occurred  on 
January 14, 2002.

  5  American InfoAge,  LLC, 16  FCC Rcd  16185 (2001)  (reducing 
forfeiture from $10,000 to $8,000 on the basis of overall history 
of  compliance);  USA  Tower,  Inc.,  16  FCC  Rcd  13182  (2001) 
(reducing forfeiture  from  $10,000 to  $8,000  on the  basis  of 
overall history of compliance).

  6 47 U.S.C.  503(b)(2)(D).

  7 47 C.F.R.  1.80.

  8 47 U.S.C.  503(b)(2)(D).

  9  Although Florida  Power  reports  in its  response  that  it 
dispatched technicians on ``January 14-15, 2001'' to  investigate 
and repair  the lighting  system  malfunctions, for  the  reasons 
stated in  note 4,  supra  we believe  that  the actual  date  of 
reference is January 14-15, 2002.

  10 47 C.F.R.  17.47(a)(1).

  11 47 C.F.R.  17.47(a)(2).

  12 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

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

  14 See 47 C.F.R.  1.1914.