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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Morris Communications, Inc. ) File No. EB-02-AT-217
Owner of Unregistered Antenna Structure in ) NAL/Acct. No.
Adrian, South Carolina )
) FRN 0001-8848-57
Adopted: April 29, 2003 Released: May 1, 2003
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand four hundred
dollars ($2,400) to Morris Communications, Inc. (``Morris''),
owner of the antenna structure located at coordinates 33° 58'
12'' North latitude and 79° 02' 03'' West longitude in Adrian,
South Carolina, for willful violation of Section 17.4(a) of
the Commission's Rules (``Rules'').1 The noted violation
involves Morris's failure to register its antenna structure.
2. On July 8, 2002, the Commission's Atlanta, Georgia
Field Office (``Atlanta Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Morris for a forfeiture
in the amount of three thousand dollars ($3,000).2 Morris
filed a response to the NAL on August 7, 2002,3 and
supplemented its response on August 13, 2002.
3. On May 7, 2002, an agent from the Atlanta Office
inspected the tower located at coordinates 33° 58' 12'' North
latitude and 79° 02' 03'' West longitude in Adrian, South
Carolina. Although the tower was over 200 feet in height, and
therefore was required to be registered with the Commission,4
the agent observed that there was no antenna structure
registration (``ASR'') number posted on or near the base of
the tower. A subsequent search of the Commission's ASR
database indicated that the tower was not registered.
4. On May 22, 2002, the agent spoke with Trace Morris,
president of Morris, and verified that the antenna structure
was owned by Morris and was not registered with the
Commission. Mr. Morris stated that Morris had previously
attempted to register the tower, but that the Commission had
returned its application.
5. On May 29, 2002, Morris sent the Atlanta Office a copy
of a tower registration application (FCC Form 854) for the
Adrian tower that was filed twice in 1999. The application
was date stamped ``received'' by the Commission's Wireless
Telecommunications Bureau on January 29, 1999, and again on
August 9, 1999. The Commission returned the January 29, 1999
application to Morris with a cover letter dated February 8,
1999, which indicated that the application was being returned
because Item 28 on the application, the environmental
assessment question, was incomplete. Morris apparently
resubmitted the same application form to the Commission on
August 9, 1999, as evidenced by the second date stamp. Morris
stated that the Commission returned its second submission of
the application without explanation. Morris filed a new
application to register the tower on May 29, 2002.5
6. On July 8, 2002, the Atlanta Office issued an NAL to
Morris for a $3,000 forfeiture for failing to register its
antenna structure in willful violation of Section 17.4(a) of
the Rules. In its response to the NAL, Morris admits that its
tower was not registered, but argues that the forfeiture
should be rescinded because it did not ``willfully'' violate
the rules. Morris asserts that it made two good faith
attempts to register the structure in 1999, but the Commission
first rejected its application on erroneous grounds and later
returned it without explanation. According to Morris, because
the Commission returned its application without explanation,
it received no guidance from the Commission as to when or if
it would have been required to resubmit its application.
Morris maintains that its failure to submit the application a
third time was inadvertent and argues that the Commission
should not impose a forfeiture on it when the Commission
failed to provide it with the information it needed to timely
and completely resubmit its application. Morris also asserts
that it submitted another tower registration application
almost immediately after the agent notified it that the tower
was not registered. Finally, Morris argues that if the
forfeiture is not rescinded, the forfeiture should be reduced
because the violation was minor, it displayed good faith after
being informed of the violation, and it has a history of
compliance with the Commission's rules.
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, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Morris'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
8. Section 17.4(a) of the Rules provides that, effective
July 1, 1996, the owner of any proposed or existing antenna
structure that requires notification to the Federal Aviation
Administration (``FAA'') must register the structure with the
Commission. Section 17.4(a)(2) of the Rules provides that the
owner of an antenna structure that had been assigned painting
or lighting requirements prior to July 1, 1996 must register
the structure prior to July 1, 1998. Morris admits that its
Adrian tower was not registered at the time of the inspection
on May 7, 2002. Accordingly, we find that Morris violated
Section 17.4(a) of the Rules.
9. Morris argues that its violation of Section 17.4(a) was
not willful because it made two good faith efforts to register
the tower in 1999. We disagree. The term ``willful,'' as
used in Section 503(b) of the Act, does not require a finding
that the rule violation was intentional or that the violator
was aware that it was committing a rule violation.9 Rather,
the term ``willful'' simply requires that the violator knew it
was taking the action in question, irrespective of any intent
to violate the Commission's rules.10 Section 17.4(a)(2)
required the owner of a tower that had been assigned painting
or lighting requirements prior to July 1, 1996 to register the
structure prior to July 1, 1998. Morris's first ASR
application for the Adrian tower, filed late on January 29,
1999,11 was dismissed because Morris did not provide a
response to Item 28, the environmental assessment question.
Morris asserts that this application was dismissed erroneously
because it did provide a response to Item 28 in the
application. In support of this assertion, Morris provides a
copy of the application date stamped by the Wireless
Telecommunications Bureau on January 29, 1999, and again on
August 9, 1999, which includes a response to Item 28.
However, this copy establishes only that Morris provided a
response to Item 28 when it resubmitted the application on
August 9, 1999. It does not establish that the original
application filed by Morris on January 29, 1999 was
10. Morris maintains that when it resubmitted the
application on August 9, 1999, the Commission returned the
application without explanation. It is not entirely clear
from the record before us why Morris's application was
returned a second time.13 We note, however, that in the cover
letter accompanying the returned January 29, 1999 application,
the Wireless Telecommunications Bureau stated that Morris must
resubmit the application within 60 days of the return date of
the letter, February 8, 1999, or its registration would
``purge'' from the Commission's database. Morris did not
resubmit the application until more than six months later.
Morris offers no explanation as to why it waited more than six
months to resubmit the application. We further note that the
geographic coordinates for the antenna structure which Morris
provided in the returned application were apparently
incorrect. In this regard, Morris indicates that in the
Spring of 2000, it contacted a land survey company to obtain
certification regarding the specifics of the tower in order to
ensure the accuracy of this information in preparation for
resubmitting the application to the Commission. The land
survey company provided Morris corrected coordinates for the
tower in June 2000.14 Morris states that it inadvertently
failed to resubmit the application after it obtained the tower
certification from the land survey company. Under these
circumstances, particularly given Morris's admission that it
failed to resubmit the application after obtaining the
corrected tower coordinates from the land survey company, we
find unpersuasive Morris's assertion that it did not resubmit
its application because the Commission failed to provide it
with the information it needed to timely and completely
resubmit the application. In addition, although Morris claims
that its failure to resubmit the application was inadvertent,
Morris offers no evidence that it had prepared an application
or that it had made any efforts whatsoever to comply with the
registration requirements subsequent to obtaining the tower
certification from the land survey company.
11. Morris also asserts that the forfeiture should be
rescinded because it submitted another tower registration
application almost immediately after the FCC agent notified it
that the tower was not registered, and thus acted in good
faith. However, Morris's remedial efforts to correct the
violation do not warrant either rescission or reduction of the
forfeiture amount.15 Forfeitures may be reduced in
appropriate cases for good faith efforts to comply prior to
FCC detection of the violation, not subsequent to FCC
12. Morris further asserts that the forfeiture should be
reduced because the violation was minor and it has a history
of overall compliance with the Commission's rules. We
disagree with Morris's assertion that the violation was minor
because it received a ``no hazard'' determination for the
tower from the FAA16 and complied with the FAA's painting and
lighting specifications for the tower. Although we recognize
that failure to register a tower is relatively minor in
comparison to other tower violations, such as failure to
comply with prescribed tower painting and lighting
requirements, that factor has already been taken into account
in setting the base forfeiture amount for failure to register
an antenna structure at $3,000.17 Furthermore, we have
previously rejected the argument that a tower owner's failure
to post an ASR number on or near the base of an antenna
structure is a minor violation, citing the potential impact on
public safety that an ASR posting violation might have.18 We
similarly believe that failure to register an antenna
structure, which is a more serious violation than failure to
post an ASR number, is not a minor violation due to the
potential impact on public safety.19 Nevertheless, we agree
that reduction of the forfeiture amount from $3,000 to $2,400
is warranted based on Morris's history of overall compliance
with the Commission's rules.
13. We have examined Morris's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Morris willfully violated Section 17.4(a) of the
Rules, but we reduce the $3,000 forfeiture proposed for this
violation to $2,400 in light of Morris's history of compliance
with the Commission's rules.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,20 Morris Communications Group, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of two thousand four hundred
dollars ($2,400) for willful violation of Section 17.4(a) of
15. 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.21 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. 200232480011 and FRN
0001-8848-57. 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.
16. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to Morris Communications, Inc., P.O. Box 16419,
Greenville, South Carolina 29606, and to its counsel,
Frederick M. Joyce, Esq., Alston & Bird, L.L.P., 601
Pennsylvania Avenue, N.W., North Building, 10th Floor,
Washington, D.C. 20004-2601.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.4(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480011 (Enf. Bur., Atlanta Office, released July 8, 2002).
3 Morris's pleading was captioned as a ``petition for
reconsideration,'' rather than a response to the NAL. Consistent
with Section 1.80(f)(3) of the Rules, 47 C.F.R. § 1.80(f)(3), we
will treat this pleading as a response to the NAL.
4 See 47 C.F.R. § 17.7(a).
5 On June 3, 2002, the Commission dismissed Morris's tower
registration application because the geographic coordinates and
elevation height for the antenna structure specified in the
application did not match the geographic coordinates and
elevation height specified in the FAA study on file with the
Commission for that structure. Morris subsequently filed for a
new FAA study and resubmitted its registration application. On
August 13, 2002, the Commission granted Morris's ASR application
and issued a registration number (ASR No. 1235383) for the tower.
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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) (``Southern California'').
10 See Southern California, 6 FCC Rcd at 4387.
11 We note that ASR applications for existing antenna
structures in South Carolina were required to be filed during a
30-day filing window from April 1 to April 30, 1998.
Streamlining the Commission's Antenna Structure Clearance
Procedure and Revision of Part 17 of the Commission's Rules
Concerning Construction, Marking and Lighting of Antenna
Structures, 11 FCC Rcd 4272, 4279 (1995) (``Streamlining'').
12 Indeed, we note that Morris's response to Item 28 on this
copy of the application appears to be in a different handwriting
than the rest of the application.
13 Although current Commission records do not indicate why the
August 9, 1999 application was returned to Morris, we think it is
unlikely that the application was returned without any
explanation. However, even assuming arguendo that the Commission
returned the application to Morris without any explanation,
Morris does not explain why it did not even attempt to ascertain
why the application was returned.
14 The returned application listed the geographic coordinates
for the tower as 33° 58' 05'' North latitude and 79° 02' 00''
West longitude. The tower certification provided by the land
survey company in June 2000 indicates that the coordinates for
the tower are actually 33° 58' 11.5'' North latitude and 79° 02'
03'' West longitude. The FAA requires a new aeronautical study
for corrections in latitude or longitude of one second or more,
or a correction in height of one foot or more. In such a case,
the tower owner must seek a new FAA determination of ``no
hazard'' prior to registration. See Streamlining, 11 FCC Rcd at
15 See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
16 We note that Morris's 1984 ``no hazard'' determination from
the FAA was no longer valid because that determination was based
on incorrect geographic coordinates. See supra n. 14.
17 We note that the base forfeiture amount for failure to
comply with tower painting or lighting requirements is $10,000.
See 47 C.F.R. § 1.80(b)(4), Note to paragraph (b)(4): Section I.
Base Amounts for Section 503 Forfeitures; Forfeiture Policy
Statement, 12 FCC Rcd at 17114, Appendix A, Section I.
18 See AT&T Wireless Services, Inc., 16 FCC Rcd 6805, 6806
(Enf. Bur. 2001).
19 In support of its assertion that the violation was minor,
Morris cites Motorola, Inc., 12 FCC Rcd 15268 (Comp. & Inf. Bur.
1997) (``Motorola''), a case in which the former Compliance and
Information Bureau (``Bureau'') reduced a forfeiture issued to a
tower owner for a tower lighting violation from $10,000 to
$5,000. Contrary to Morris's suggestion, the Bureau did not
reduce the forfeiture in Motorola because it determined that the
light outage was a minor violation. Rather, the Bureau reduced
the forfeiture in that case because Motorola presented evidence
that it had notified the FAA of the light outage prior to the
inspection by the FCC agents and stayed in contact with the FAA
until the light outage was corrected. Thus, unlike the instant
case, the Bureau found that Motorola's correction of the light
outage ``stemmed from Motorola's own efforts and not a hasty
attempt to comply due to the FCC inspection.'' 12 FCC Rcd at
20 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
21 47 U.S.C. § 504(a).
22 See 47 C.F.R. § 1.1914.