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

In the Matter of                )
                                )
Business Cell Systems           )   File Number EB-02-AT-415     
Owner of Antenna Structure #1216842 near Tellico  )    NAL/Acct. 
No. 200332480015
Plains, Tennessee               )   FRN:  0005-8658-60
Athens, Tennessee               )

                        FORFEITURE ORDER 

Adopted:  July 23, 2004                 Released:  July 27, 2004 

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 Business Cell  Systems (``Business Cell''), owner  of 
antenna structure #1216842, for willful and repeated violation of 
Section 17.51(b) of  the Commission's  Rules (``Rules'').1    The 
noted violation  involves  failure to  continuously  exhibit  all 
medium intensity obstruction lighting during daylight hours.
 
     2.     On January 23,  2003, the Commission's Atlanta  Field 
Office  (``Atlanta  Office'')  released  a  Notice  of   Apparent 
Liability for Forfeiture (``NAL'') to Business Cell in the amount 
of ten  thousand  dollars  ($10,000).2   Business  Cell  filed  a 
response on February 4, 2003.

                         II.  BACKGROUND

     3.    On  November  19  and  21,  2002,  in  response  to  a 
complaint of  an unlit  tower,  an agent  of the  Atlanta  Office 
inspected the  antenna  structure  associated  with  FCC  antenna 
structure registration  (``ASR'') #1216842  located near  Tellico 
Plains, Tennessee.   At the  times of  inspection, 9:30  a.m.  on 
November 19,  2002,  and 2:30  p.m.  on November  21,  2002,  the 
unpainted  structure  had  no   white  obstruction  lighting   in 
operation.

     4.   On November 21,  2002, an agent  of the Atlanta  Office 
determined  from  the  Commission   ASR  database  that   antenna 
structure #1216842 was registered to  Business Cell and that  the 
registration included requirements  to maintain medium  intensity 
obstruction lighting during daytime and nighttime hours.  The FCC 
agent telephoned  the  nearest  Flight  Service  Station  of  the 
Federal Aviation Administration (``FAA''), which verified that it 
had received  no  report  of  a light  outage  for  this  antenna 
structure.

     5.   5.  On  December  4, 2002,  the  agent of  the  Atlanta 
Office contacted Business Cell  via telephone.   Business  Cell's 
owner  indicated  that  he  was  unaware  of  the  outage.   Upon 
notification by the FCC, the structure was inspected on  December 
4 by Business  Cell to  confirm the  lighting outage.    Business 
Cell states that its inspection  revealed that the control  board 
in the strobe  control pack and  the alarm relay  had been  blown 
apart,  which  prevented  the  strobes  from  working  and   also 
prevented an alarm from being sent to notify the alarm center  of 
the outage. 

     6.   6.   In its response to the NAL, Business Cell does not 
challenge the  finding  of the  NAL  and admits  that  no  medium 
intensity obstruction  lighting  was  operating at  the  time  of 
inspection.  Business  Cell appears  to  deny that  it  willfully 
violated Section  17.51(b) of  the Rules,  claiming the  lighting 
outage was  caused by  an  ``act of  God'' outside  its  control. 
Business Cell  also  states  that  it  took  a  number  of  post-
Commission inspection repair actions  and also seeks  forbearance 
by generally requesting  that the Commission  give it ``any  help 
you can give on this matter.''  

     7.   7.  Further,  Business  Cell describes  in  detail  the 
alarm system it uses to monitor for light outages.  Business Cell 
indicates that its system monitors the lights and sends an  alarm 
using cell radio technology.  Additionally, Business Cell  states 
that if an alarm system failed to check in once every 24 hours it 
would be notified.


                        III.  DISCUSSION

     8.   8.   The proposed  forfeiture amount in  this case  was 
assessed in accordance with Section 503(b) of the  Communications 
Act of 1934, as amended  (``Act''),3 Section 1.80 of the  Rules,4 
and The Commission's Forfeiture Policy Statement and Amendment of 
Section  1.80  of  the   Rules  to  Incorporate  the   Forfeiture 
Guidelines.5  In  examining  Business  Cell'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 such other matters 
as justice may require.6  

     9.   Section 17.51(b) of the Rules requires that all  medium 
intensity obstruction lighting  be exhibited continuously  unless 
otherwise specified.  Business Cell's antenna structure  #1216842 
is required  to  exhibit medium  intensity  obstruction  lighting 
during daylight hours and at  night.  At the times of  inspection 
on November  19 and  21, 2002,  no medium  intensity  obstruction 
lighting  was  observed  operating  on  Business  Cell's  antenna 
structure #1216842.  Business  Cell had not  notified the FAA  of 
the light  outage.7  Additionally,  the owner  of  Business  Cell 
states that he was  unaware that the  strobes were not  operating 
until December 4, 2002, when the FCC agent contacted him.  

     10.  10. The owner of Business Cell does not dispute that he 
did not know  that the medium  intensity obstruction lights  were 
not operational from at least  November 19, 2002, until  December 
4, 2002 when the FCC  agent notified him.  Business Cell  argues, 
however, that the lighting outage was the result of a ``lightning 
strike that was unbelievable'' and implies that an ``act of God'' 
should be a mitigating fact warranting reduction or rescission of 
the forfeiture and that the violation was not willful.   

     11.  11. Section 17.47 of the Rules8 requires that the owner 
of an antenna structure observe 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  the  lights.  Alternatively,  the  owner may  use  an 
automatic alarm system that  is properly maintained and  designed 
to detect any failure of the lights and to provide indication  of 
such failure to the owner.  Business Cell states that it used  an 
automatic alarm system  to monitor the lighting on its towers and 
that the system  is designed to  use a cellular  radio system  to 
relay a  message  to  it  if  the  lights  failed.  Additionally, 
Business Cell states that the system would notify it if the  unit 
did not check in with the cell system within 24 hours.   Business 
Cell does not explain, however, why  in this instance it was  not 
notified that the alarm system had failed for more than two weeks 
after the lights were  out.  In fact,  the President of  Business 
Cell states that the first indication he received that the lights 
were not operational was when  the FCC agent contacted him.   Nor 
does  Business  Cell  provide  any  evidence  that  it   properly 
maintained  its  automatic  alarm  system  since  installing  it.  
Accordingly, it does not appear,  based on the record before  us, 
that Business  Cell  had  properly inspected  or  maintained  the 
automatic alarm system prior to the FCC notification as  required 
by Section 17.47.  Thus, even assuming that the lightning  strike 
caused the  outage,  we  conclude that  Business  Cell  willfully 
violated the rule.9 

     12.  12. Business Cell states that the tower lighting outage 
was quickly corrected once it was  informed of it because of  the 
Commission  inspection.  Business  Cell's  remedial  actions   to 
correct the problem subsequent  to notification of the  violation 
do not mitigate  the violation.10   It is  well established  that 
``corrective action taken to come into compliance with Commission 
rules or policy is expected, and does not nullify or mitigate any 
prior forfeitures or violations.''11 

     13.  13. Business Cell  also states that  this is the  first 
time its system has not been in compliance with the  Commission's 
Rules.  To  the  extent  this constitutes  a  claim  for  overall 
compliance, our review of the Commission's records confirms  that 
Business Cell has not previously been found to have violated  the 
Rules.

     14. Based on the evidence  before us, we find Business  Cell 
willfully12 and  repeatedly13 violated  Section 17.51(b)  of  the 
Rules  by  failing  to  continuously  exhibit  medium   intensity 
obstruction lighting  during  daylight  hours.   Considering  the 
entire  record  and  the  factors  listed  above,  we  find  that 
reduction of the proposed forfeiture is warranted because of  the 
compliance record of Business  Cell with the Commission's  Rules.  
Accordingly, the forfeiture amount  is reduced from ten  thousand 
dollars ($10,000) to eight thousand dollars ($8,000).   

                      IV.  ORDERING CLAUSES

     14.   Accordingly, IT IS  ORDERED THAT, pursuant to  Section 
503(b) of the Act14, and Sections 0.111, 0.311 and 1.80(f)(4)  of 
the Commission's Rules15, Business Cell, IS LIABLE FOR A MONETARY 
FORFEITURE in the amount of  eight thousand dollars ($8,000)  for 
its willful and  repeated violation  of Section  17.51(b) of  the 
Rules.

     15.   Payment of the forfeiture shall be made in the  manner 
provided for in Section 1.80  of the Commission's Rules16  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.17   Payment may be  made by credit  card through  the 
Commission's Credit and Debt Management Center at (202)  418-1995 
or 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  the   NAL/Acct.   No. 
200332480015, and FRN:  0005-8658-60 referenced above.   Requests 
for full payment  under an  installment plan should  be sent  to: 
Chief, Credit and Debt Management Center, 445 12th Street,  S.W., 
Washington, D.C. 20554.18










 
 
     16.   IT IS FURTHER ORDERED  that a copy of this  Forfeiture 
Order shall be sent by Certified Mail, Return Receipt  Requested, 
and First Class  Mail to  Business Cell Systems,  P.O. Box  1374, 
Athens, TN 37371.  

                         FEDERAL COMMUNICATIONS COMMISSION

     
          
                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

     11.   47 C.F.R.  17.51(b).

     21.   Notice of Apparent Liability for Forfeiture, NAL/Acct. 
No. 200332480015 (Enf. Bur., Atlanta Office, released January 23, 
2003).

     31.   47 U.S.C.  503(b).

     41.   47 C.F.R.  1.80.

     51.   12 FCC Rcd  17087 (1997),  recon.  denied, 15 FCC  Rcd 
303 (1999).  

     61.   47 U.S.C.  503(b)(2)(D).

     71.   The  owner of  any registered  antenna structure  must 
report immediately to the nearest  flight service station of  the 
FAA any observed  or otherwise known  extinguishment or  improper 
functioning of  any  flashing  obstruction  light  not  corrected 
within 30 minutes.  See 47 C.F.R.  17.48(a).

     81.    47 C.F.R.   17.47.

     91.    See  Professional Communications,  Inc., DA  04-1600, 
EB-02-KC-806 (Enf. Bur. 2004). 

10  See Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); AT&T  
Wireless Services,  Inc., 17  FCC Rcd  21866, 
     1.   21871 (2002).

     111.        Seawest  Yacht Brokers,  9  FCC Rcd  6099,  6099 
(1994). 

     121.        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', when  used with  reference to  the commission  or 
omission  of  any  act,   means  the  conscious  and   deliberate 
commission or omission of such act, irrespective of any intent to 
violate any  provision  of this  Act  .  . .  .''   See  Southern 
California Broadcasting Co., 6 FCC Rcd 4387-88 (1991).

     131.       The term ``repeated,''  when used with  reference 
to the commission or omission of any act, ``means the  commission 
or omission of such act more than once or, if such commission  or 
omission is continuous,  for more  than one day.''   47 U.S.C.   
312(f)(2).

     141.       47 U.S.C.  503(b).

     151.       47 C.F.R.  0.111, 0.311, 1.80(f)(4).

     161.       47 C.F.R.  1.80.

     171.       47 U.S.C.  504(a).

     181.       See 47 C.F.R.  1.1914.