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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-KC-806
Professional Communications Inc.)
Owner of Antenna Structure #1037282 located ) NAL/Acct.
near Peculiar, Missouri )
) FRN 0006-1497-36
Adopted: June 2, 2004
Released: June 4, 2004
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 Professional Communications Inc. (``PCI''), owner
of antenna structure #1037282 near Peculiar, Missouri, for
willful and repeated violation of Section 17.51(a) of the
Commission's Rules ("Rules").1 The noted violation involves
PCI's failure to exhibit all red obstruction lighting on the
antenna structure from sunset to sunrise from November 11-15,
2002 and on December 3, 2002.
2. On January 24, 2003, the Commission's Kansas City,
Missouri Field Office (``Kansas City Office") issued a Notice of
Apparent Liability for Forfeiture ("NAL") to PCI in the amount of
ten thousand dollars ($10,000). 2 PCI filed a response to the
NAL on February 14, 2003.
3. On November 11, 2002, a tenant on PCI's antenna
structure notified PCI of a beacon lighting outage on
the structure. TowerSentry, the company hired by PCI
to monitor remotely its antenna structure and notify
the Federal Aviation Administration (``FAA'') of any
outages, did not detect this outage. PCI contacted
United Tower Inc. (``UTI'') in Wichita, Kansas and
contracted with it to conduct repairs on the
structure.3 The FAA was not notified of the lighting
outage on the structure consistent with Section
17.48(a) of the Rules.4
4. On December 3, 2002, a Commission agent from the Kansas
City Office inspected PCI's antenna structure and
observed that there was no lighting between the 1/2
overall height level and the top most flashing beacon
and that a beacon at the 1/3 overall height level was
lighted but not flashing. After being so informed by
the agent, PCI notified the FAA of the outage. In a
letter dated December 9, 2002, PCI stated that it hired
UTI to perform required quarterly tower inspections of
the lighting system and components of the automatic
alarm system on a going-forward basis.
5. On January 24, 2003, the Kansas City Office issued the
NAL for violation of Section 17.51(a) of the Rules. On
February 14, 2003, PCI submitted a response to the NAL.
In that response, PCI seeks a reduction or cancellation
of the proposed forfeiture. PCI asserts that
TowerSentry did not detect or notify the FAA of the
outage on November 11 or December 3, 2002 due to
unforeseen technical problems with the remote
monitoring system. Moreover, PCI alleges the agent's
observations on December 3, 2002 were inconsistent with
UTI's subsequent inspection of the antenna structure.5
PCI notes that it promptly contacted the FAA of this
outage. Accordingly, PCI asserts that the violations
were not ``willful.''
6. The proposed 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) (``Forfeiture Policy Statement''). In examining PCI'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
7. Section 17.51(a) of the Rules requires that all red
obstruction lighting on antenna structures exceeding 200 feet be
exhibited from sunset to sunrise.9 The Antenna Structure
Registration for PCI's antenna structure requires that red
obstruction lighting be exhibited at night. PCI does not dispute
that one or more beacons were inoperable or functioning
improperly on the antenna structure from November 11-15, 2002 and
on December 3, 2002. PCI argues, however, that the lighting
outage was the result of an unexpected and unforeseeable event,
damage created by rodents, and therefore, was not ``willful.''
We disagree. 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 PCI made daily observations of its antenna
structure in Peculiar, nor does PCI present any evidence that it
had properly inspected or maintained the automatic alarm system
prior to FCC notification, as required by Section 17.47.12
Moreover, PCI had or should have had actual notice of
malfunctions in the automatic alarm system on November 11, 2002
when it received a telephone call from a tenant instead of
notification from TowerSentry. There is no evidence in the
record to demonstrate that PCI inquired about the cause of the
alarm system failure at that time. PCI's actions subsequent to
FCC notification of the violations to monitor the alarm system
and prevent future rodent damage constitute corrective action to
come into compliance with Commission Rules and do not nullify or
mitigate any prior violations.13 Thus, we find that PCI's
violation of Section 17.51(a) of the Rules was willful 14 and
8. PCI asserts that the forfeiture should be reduced or
cancelled because it notified the FAA of the outage on December
3, 2002 within a few hours of being contacted by the agent.
PCI's compliance with the requirement to notify the FAA of the
extinguishment or improper functioning of lights on December 3,
however, is expected and does not warrant a reduction of the
9. We have examined PCI's response to the NAL pursuant to
the statutory factors above, and in conjunction with the
Forfeiture Policy Statement. As a result of our review, we
conclude that PCI willfully and repeatedly violated Section
17.51(a) of the Rules and find no basis for cancellation or
reduction of the forfeiture proposed for this violation.16
IV. ORDERING CLAUSES
10. 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,17 Professional Communications Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for willfully and repeatedly violating Section 17.51(a)
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.18
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. 200332560009, and FRN0006-1497-36. 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.
12. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to Professional Communications Inc.'s President, D.
Garry Munson, 8588 Katy Freeway, Suite 240, Houston, Texas 77024.
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.
200332560009 (Enf. Bur., Kansas City Office, released January 24,
3 UTI personnel repaired the outages by replacing all lamps
on the structure on November 15, 2002.
4 See 47 C.F.R. § 17.48(a).
5 The agent noted that there was no lighting between the 1/2
overall height level and the top-most flashing beacon and that
the beacon at the 1/3 overall height level was lighted but not
flashing. In addition, the agent observed that the side lighting
at the 5/6 overall height level was not lighted. According to
PCI's response to the NAL, UTI observed that the 2/3 beacon light
was inoperable, the 1/3 beacon was lighted but not flashing, and
all side lighting was operational. The agent's and UTI's
differing observations regarding the side lighting do not impact
the decision reached herein. Antenna structure owners must
notify the FAA of any malfunctioning top steady or flashing
obstruction lights. There are no inconsistencies between the
agent's and UTI's observations regarding these beacon lights.
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 47 C.F.R. § 17.51(a).
10 47 C.F.R. § 17.47.
12 See id.
13 See Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994).
14 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).
15 As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one day.
The Conference Report for Section 312(f)(2) indicates that
Congress intended to apply this definition to Section 503 of the
Act as well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
16 See Florida Power and Light Company, 17 FCC Rcd 7296
17 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.