Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Haviland Telephone Co., Inc., ) File Number EB-02-KC-331
Owner of Antenna Structure ) NAL/Acct. No. 200232560009
No. 1033509 )
) FRN 0005-0815-67
Adopted: January 31, 2003 Released: February 4,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand five hundred
dollars ($2,500) to Haviland Telephone Co., Inc., (``Haviland'')
for willful violation of Section 17.21 of the Commission's Rules
(``Rules'').1 The noted violation involves Haviland's failure to
exhibit the prescribed painting.
2. On June 13, 2002, the Commission's Kansas City, Kansas
Field Office (``Kansas City Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of ten thousand
dollars ($10,000) to Haviland for the noted violation.2 Haviland
filed a response to the NAL on July 22, 2002, and filed a
supplement to its response dated August 20, 2002.
3. On May 16, 2002, an agent from the Kansas City Office
inspected Haviland's antenna structure number 1033509 in
Haviland, Kansas. The structure's height was 122 meters (400
feet), thus requiring painting and lighting. The agent observed
that the antenna structure was unpainted, there were no daytime
obstruction lights in operation, and that there was no antenna
structure registration (``ASR'') number visible at or near the
base of the tower. The ASR and the Federal Aviation
Administration (``FAA'') records for this structure both
prescribe that red obstruction lighting and paint be exhibited on
4. On June 13, 2002, the Kansas City Office issued an NAL
in the amount of $10,000 to Haviland for failure to exhibit the
prescribed painting in willful violation of Section 17.21 of the
Rules. In its response to the NAL, Haviland requests that the
proposed forfeiture be remitted or substantially reduced.
Haviland states that the NAL mistakenly asserts that the daytime
obstruction lights were not in operation on May 16, 2002.
Specifically, Haviland claims that it received a telephone call
from the Kansas City Office on May 16, 2002, and that it visually
inspected the tower while the caller was on the telephone. At
this time, argues Haviland, the tower's lighting system was
operating properly. In addition, Haviland states that when the
tower was constructed in 1993, Haviland proceeded with the ``good
faith belief'' that medium intensity strobe lighting was an
equivalent to painting and red obstruction lighting. Moreover,
Haviland indicates that the FAA clearance in Aeronautical Study
No. 93-ACE-0022-OE stated that the structure was to be marked and
lighted ``in accordance with FAA Advisory Circular 70/7460-1H
(``FAA Circular'').'' Haviland argues that paragraphs 37(b) and
42(b) of the FAA Circular state that when medium-intensity
flashing white (strobe) obstruction lighting systems are used on
structures of 500 feet or less in height, other methods of
marking and lighting the structure may be omitted. Haviland
contends that its decision not to paint the tower and to
substitute white strobe lighting for red obstruction lighting was
made with its belief at the time that this change was permitted
without any further regulatory involvement. Moreover, Haviland
contends that its change to white strobe lighting was not done
surreptitiously with any intent to deceive the regulatory
agencies or gain some undue advantage. In fact, argues Haviland,
in its notification to the FAA in May 1993 of construction of its
tower, Haviland indicated that its structure would be lit with
white lighting. Haviland states that it believed at the time
that this was all it was required to do. Haviland adds that its
change did not result in a compromise in aeronautical safety.
Haviland states that it has now learned that while medium
intensity white strobe lighting may be substituted for painting
and red obstruction lighting, this substitution requires prior
coordination with the FAA and the FCC. Haviland argues that
following receipt of the NAL, it referred the matter to its
counsel when it first learned of the requirement of coordination
with the FAA and FCC prior to making such a change. Haviland
states that its counsel promptly submitted a formal request to
the FAA for authorization to utilize white strobe lighting in
lieu of painting and red obstruction lighting.
5. Next, Haviland argues that Section 17.17(a) of the
Rules implies a grandfathering of tower marking and lighting as
it existed prior to July 1, 1996. According to Haviland, under
this interpretation of Section 17.17(a), it may retain its
existing white strobe lighting without penalty since neither the
overall structure height nor the site coordinates have changed
since the tower was built, consistent with the apparent wording
of the Rule. Haviland also argues that all of the downward
adjustment criteria apply, and consequently, a reduction in the
forfeiture amount is warranted.3 Based on its statement of
facts, contends Haviland, the only violation in this case is its
failure in 1993 to file the required forms with the FAA and FCC
to coordinate the change from painting and red obstruction
lighting to medium intensity white strobe lighting. Thus,
Haviland states that this is the only offense for which a
forfeiture should be considered. With respect to the finding in
the NAL that there was no ASR number visible at or near the base
of the tower, Haviland states that the placard which had been
secured to the tower apparently blew away in a storm several days
before the inspection. Haviland indicates that it subsequently
secured a new placard to the tower.4 In its supplement to the
response to the NAL, Haviland reports that the FAA issued the
formal clearance on July, 17, 2002, for Haviland to utilize white
strobe lighting instead of painting and red obstruction lighting.
Haviland also states that its corresponding application for
modification of its tower's ASR was filed with the Commission on
August 16, 2002, and was granted on the same day. Haviland
requests that the Commission take into consideration its
immediate actions once it became aware of the ``regulatory
6. 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). In
examining Haviland'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.7
7. We agree that the forfeiture amount should be reduced.
We note, however, that Haviland failed to paint its tower as
prescribed by the ASR and FAA records on file for its tower at
the time of the inspection. We therefore find that Haviland
violated Section 17.21 of the Rules. We note also that after
filing the appropriate FCC and FAA forms, the licensee received
the necessary approval to utilize the medium intensity white
strobe lighting in lieu of the required painting and red
obstruction lighting. Given the facts of this case, specifically
Haviland's belief that the medium intensity white strobe lighting
was an acceptable alternative and the pro forma nature of the
approval of the alternative lighting, we conclude that the
licensee's failure to paint the tower was a minor violation of
Section 17.21 of the Rules.8 We conclude also that the violation
resulted more from the licensee's failure to file the required
FCC and FAA forms. We will therefore reduce the forfeiture
amount to $3,000, which is consistent with the forfeiture amount
for failure to file required forms or information. However, with
respect to Haviland's assertion that the forfeiture should be
reduced on the basis of its inability to pay, it does not submit
any financial documentation from which we can assess its ability
to pay. Thus, we decline to reduce the forfeiture amount on this
basis. Finally, Haviland requests that we consider its history
of overall compliance. We will do so, and further reduce the
forfeiture amount to $2,500.
IV. ORDERING CLAUSES
8. 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,9 Haviland IS LIABLE FOR A MONETARY FORFEITURE in the
amount of two thousand five hundred dollars ($2,500) for failure
to exhibit the prescribed painting on its antenna structure in
willful violation of Section 17.21 of the Rules.
9. 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.10
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.
200232560009 and FRN 0005-0815-67. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
10. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail, Return Receipt Requested, to Haviland
Telephone Co., Inc., P.O. Box 308, Haviland, Kansas 67059-0308,
and to its counsel, Harold Mordkofsky, Esq., Blooston,
Mordkofsky, Dickens, Duffy & Prendergast, 2120 L Street, N.W.,
Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.21.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232560009 (Enf. Bur., Kansas City Office, released June 13,
3 See note to 47 C.F.R. § 1.80(b)(4) (The downward adjustment
criteria are: minor violation, good faith or voluntary
disclosure, history of overall compliance, and inability to pay).
4 We note that no forfeiture was assessed for this violation.
Accordingly, we see no need to further address this matter
5 47 U.S.C. § 503(b)(2)(D).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 In light of our decision, we need not reach Haviland's
arguments regarding Section 17.17(a).
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 U.S.C. § 504(a).
11 See 47 C.F.R. § 1.1914.