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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Titan Towers, LP ) File No. EB-02-OR-194
) NAL/Acct. No. 200232620009
Owner of Antenna Structure ) FRN 0004-5429-99
Registration No. 1233271 near )
Pine Bluff, Arkansas )
Abilene, Texas )
Adopted: May 15, 2003 Released: May 19, 2003
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand dollars
($2,000) to Titan Towers, LP (``Titan''), owner of an antenna
structure with Antenna Structure Registration (``ASR'') number
1233271 near Pine Bluff, Arkansas, for willful violation of
Section 17.4(g) of the Commission's Rules (``Rules'').1 The
noted violation involves Titan's failure to post its ASR
number so that it is readily visible in a conspicuous place
near the base of the antenna structure.
2. On July 22, 2002, the Commission's New Orleans,
Louisiana Field Office (``New Orleans Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to Titan
for a forfeiture in the amount of three thousand dollars
($3,000).2 Titan filed a response to the NAL on August 21,
3. On May 22, 2002, an agent from the New Orleans Office
inspected an antenna structure near Pine Bluff, Arkansas. The
agent observed that the ASR number was not posted anywhere
near the base of the structure. A subsequent search of the
Commission's ASR database revealed that this structure was
registered to and owned by Titan. The database further showed
that construction of this structure was completed on April 16,
4. On July 22, 2002, the New Orleans Office issued an NAL
for a $3,000 forfeiture to Titan for failing to post its ASR
number near the base of the antenna structure in willful
violation of Section 17.4(g) of the Rules. The NAL noted that
the base forfeiture amount established by the Commission for
failure to post an ASR number is $2,000.3 However, the NAL
found that a 50% upward adjustment of the base forfeiture
amount to $3,000 was appropriate in this case because Titan
has a history of non-compliance with the ASR posting
requirement.4 In its response to the NAL, Titan admits that
the ASR number was not posted near the base of its Pine Bluff
antenna structure at the time of the inspection, but requests
cancellation or reduction of the proposed $3,000 forfeiture.
Titan states that its standard practice is to erect the tower
structure itself, construct any ground structures needed to
house ancillary equipment at the base of the tower structure,
and then install a fence surrounding the tower and ancillary
equipment and affix the ASR sign to the fence. In this
instance, Titan states that inclement weather caused an
unanticipated delay between the time it completed construction
of the tower on April 16, 2002 and the time it installed the
fence with the appropriate ASR sign. Titan asserts that the
unfortunate delay in its construction schedule was not
expected and should not be construed by the Commission as an
indication that Titan is less than diligent in its efforts to
satisfy all Commission requirements, including the
requirements of Section 17.4(g). Titan also asserts that
should a similar situation arise in the future, its policy
will be to display the ASR sign on the tower itself
temporarily and then move the sign to the fence upon
installation. Finally, Titan objects to the 50% upward
adjustment of the base forfeiture amount for this violation
based on the three NOVs previously issued to Titan for ASR
number posting violations. With respect to the three prior
NOVs, Titan asserts that the first involved a case where the
ASR number was affixed to the tower base, but FCC personnel
could not see it from outside the fence, the second involved a
case where the tower was voluntarily registered, and Titan has
no record of receiving the third NOV.
5. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),5 Section 1.80 of the Rules,6 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 Titan'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
6. Section 17.4(g) of the Rules requires the owner of an
antenna structure to post the ASR number so that it is readily
visible in a conspicuous place near the base of the antenna
structure. Titan admits that the ASR number for its Pine
Bluff antenna structure was not posted at the time of the
inspection on May 22, 2002, more than one month after Titan
completed construction of the tower on April 16, 2002.
Moreover, Titan clearly knew that it was required to post the
ASR number near the base of the Pine Bluff tower. We
accordingly conclude that Titan willfully8 violated Section
17.4(g) of the Rules.
7. Titan asserts that the violation occurred because
inclement weather caused an unanticipated delay in the
construction of the fence surrounding the tower, on which the
ASR sign was to be affixed. We do not believe that this
circumstance warrants cancellation or reduction of the
forfeiture amount. We expect tower owners to post their ASR
numbers promptly upon completion of construction of the
antenna structure. Here, more than a month lapsed between the
time Titan completed construction of its antenna structure and
the time it posted the ASR sign. The unanticipated delay in
the construction of the fence surrounding the tower does not
excuse Titan's failure to post its ASR sign as required by
Section 17.4(g). To the extent that Titan was unable to
construct the fence on which it intended to affix its ASR
sign, it could have posted a temporary ASR sign on or near the
antenna structure. Furthermore, the fact that Titan has
changed its policy to provide for such a temporary ASR sign if
a similar situation arises in the future does not mitigate
8. However, we agree with Titan that the 50% upward
adjustment of the $2,000 base forfeiture amount for this
violation based on its past history of non-compliance was not
warranted. Review of the three prior cases cited in the NAL
as a basis for the upward adjustment reveals that in one case
the ASR number was in fact posted on the base of the tower and
in one case the ASR number was not required to be posted
because the tower was registered voluntarily. Thus, it
appears that Titan was not in violation of the ASR posting
requirement in two of the three prior cases cited in the NAL.9
Under the circumstances presented here, we do not believe that
Titan's one previous ASR posting violation warrants a 50%
increase in the base forfeiture amount for its violation of
Section 17.4(g) in the instant case. Accordingly, we will
reduce the forfeiture for Titan's violation of Section 17.4(g)
from $3,000 to $2,000.
9. We have examined Titan'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 Titan willfully violated Section 17.4(g) of the
Rules, but we reduce the forfeiture for this violation from
$3,000 to $2,000.
IV. ORDERING CLAUSES
10. 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,10 Titan Towers, LP IS LIABLE FOR A MONETARY
FORFEITURE in the amount of two thousand dollars ($2,000) for
willful violation of Section 17.4(g) of the Rules.
11. 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.11 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. 200232620009 and FRN
0004-5429-99. 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.
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to Titan Towers, LP, 1500 Industrial Blvd., Abilene,
Texas 79602, and to its counsel, Elizabeth R. Sachs, Esq.,
Lukas, Nace, Gutierrez & Sachs, Chartered, 1111 19th Street,
N.W., 12th Floor, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.4(g).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232620009 (Enf. Bur., New Orleans Office, released July 22,
3 See American Tower Corporation, 16 FCC Rcd 1282 (2001).
4 In support of the decision to adjust the base forfeiture
amount upward in this case, the NAL cited three Notices of
Violation issued to Titan for failure to post its ASR on or near
the base of an antenna structure: one issued on April 25, 2002
by the Detroit, Michigan Field Office (File No. EB-02-DT-392);
one issued on August 18, 2000 by the Denver, Colorado Field
Office (File No. EB-00-DV-418); and one issued on June 28, 1999
by the Dallas, Texas Field Office (File No. 99DL237).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 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).
9 Titan asserts that it never received the NOV issued by the
Detroit Field Office on April 25, 2002. However, on April 30,
2002, Titan submitted a response to the NOV in which it stated
that the ASR number had been posted on the fence surrounding the
tower, but the fence had been taken down in order to be replaced.
Titan further stated that it posted the ASR number again after it
completed construction of a new fence.
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.