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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-AT-064
MCC Georgia LLC ) NAL/Acct. No. 200332480022
Owner of Antenna Structure )
Registration ) FRN No. 0004-3413-68
Number 1022429 in McIntyre, )
Middletown, New York
Adopted: September 28, 2004 Released: September 30,
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to MCC Georgia LLC (``Mediacom'') for willful and
repeated violation of Section 17.51 of the Commission's Rules
(``Rules'').1 The noted violation involves Mediacom's failure to
exhibit obstruction lighting from sunset to sunrise on its
antenna structure # 1022429 on March 4 and 5, 2003.
2. On April 15, 2003, the Commission's Atlanta, Georgia
District Office (``Atlanta Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Mediacom for a forfeiture
in the amount of ten thousand dollars ($10,000) citing willful
and repeated violations of Section 17.51 of the Commission's
Rules.2 Mediacom filed a response to the NAL on May 15, 2003.
3. On March 4 and 5, 2003 a Commission field agent from
the Atlanta Office observed that Mediacom's antenna structure
was not illuminated between sunset and sunrise on either day.
The Federal Aviation Administration (``FAA'') was not notified
of the light extinguishment. The agent determined that Mediacom
was the owner of the antenna structure, ASR # 1022429. In
response to this violation, the Atlanta Office issued an NAL to
Mediacom on April 15, 2003.
4. Mediacom replied to the NAL on May 15, 2003, requesting
a reduction in the forfeiture amount. In its response, Mediacom
stated that before the inspections on March 4 and 5, 2003,
Mediacom ordered an automatic alarm system to provide more
reliable notice of lighting outages. Mediacom did not receive
the equipment for the system until March 12, 2003. Mediacom
stated that the equipment was installed by March 17, 2003, and
Mediacom promptly repaired the outage after learning about it
from the field inspector.
5. 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, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining Mediacom'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.5
6. Section 17.51 of the Rules mandates that ``All red
obstruction lighting shall be exhibited from sunset to sunrise
unless otherwise specified.''6 During the Atlanta Office
agent's inspections on March 4 and 5, 2003, Mediacom failed to
exhibit any of the required obstruction lighting on its antenna
structure. Mediacom does not dispute that the red obstruction
lighting was extinguished from sunset to sunrise on March 4 and
5, 2003. Therefore, we conclude that Mediacom willfully7 and
repeatedly8 violated Section 17.51 of the Rules.
7. Mediacom requests that the proposed monetary forfeiture
be reduced on the basis of a good faith effort to prevent
lighting outages prior to the detection of the violation.
According to the sworn declaration of Al Kai, Senior Manager,
Technical Operations for Mediacom in the Southern Division, Mid
Atlantic Region, Mediacom ordered an automated alarm system to
provide more reliable notice of lighting outages. Mediacom
ordered the system on November 14, 2002 and did not receive it
until March 12, 2003. Ordering the automated alarm system prior
to the noted violation of Section 17.51 does not warrant a
``good faith'' reduction. Mediacom knew there was a delay in
the delivery of the automated alarm system, yet no evidence is
offered that Mediacom made any effort to monitor the lighting
structure by any other means during the time when the alarm
system was on order. Section 17.47 of the Rules requires that
an owner of an antenna structure either observe the antenna
structure's lights visually every 24 hours, or observe the
lights through an automatic indicator every 24 hours; or
alternatively, maintain an automated alarm system designed to
detect any lighting outages and report that outage to the
owner.9 Mediacom offered no evidence that Section 17.47 of the
Rules was complied with during the four month period when the
automatic alarm system was on order either by visually observing
the antenna or by observing it through an automatic indicator.
Mediacom was not cited with a violation of Section 17.47 of the
Rules in the NAL. However, by failing to show compliance with
this Section of the rules, Mediacom's claim of good faith as a
basis for downward adjustment is diminished.10 Because the
alarm system was not installed at the time of the violations and
no other monitoring system was in place and Mediacom failed to
visually observe the obstruction lighting, Mediacom had no means
to discover the lighting violations and failed to comply with
Section 17.47 of the Rules. This overall lack of ability to
monitor caused the lighting violations to go undetected,
resulting in the repeated violation of Section 17.51(a).
Accordingly, since Mediacom failed to make a good faith effort
to monitor the lighting on the antenna structure, no reduction
for good faith is warranted.11
8. Further, Mediacom requests reduction of the proposed
forfeiture order because of expeditious corrective action taken
to come into compliance after being notified of the violation.
Mediacom claimed that it promptly made repairs upon learning of
the lighting outage. The Commission has been clear 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."12 Therefore, Mediacom's
effort to correct the violation after it was discovered by the
field officer is not a mitigating factor and the forfeiture
order will not be reduced on this basis.
9. We have examined Mediacom'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 Mediacom willfully and repeatedly violated Section
17.51 of the Commission Rules. We find no basis for rescinding
or canceling the forfeiture.
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,13 MCC Georgia LLC. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for its willful and repeated violation of Section
17.51 of the Commission's 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.14 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. Payment by overnight mail may be sent to Bank
One/LB 73482, 525 West Monroe, 8th Floor Mailroom, Chicago,
Illinois 60661. Payment by wire transfer may be made to ABA
Number 071000013, receiving bank Bank One, and account number
1165259. The payment must include the FCC Registration Number
(FRN) and the NAL/Acct. No. referenced in the caption. 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. 20554.15
12. IT IS FURTHER ORDERED that a copy of this Order
shall be sent via First Class Mail and Certified Mail, Return
Receipt Requested, to Mediacom Communications Corporation., 100
Crystal Run Rd., Middletown, New York, 10941.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
- Unhandled Picture -
1 47 C.F.R. § 17.51
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480022 (Enf. Bur., Atlanta Office, released April 15,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 C.F.R. § 17.51
7 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).
8 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).
9 47 C.F.R. § 17.47(a)(1)
10 In Re Telecorp. Communications, Inc. 16 FCC Rcd 5270, 5272
(Enf. 2001) (finding that the lack of evidence showing compliance
with Section 17.47 of the Rules undercuts a claim of good faith
as a basis for downwardly adjusting a forfeiture amount for a
violation of Section 17.51 of the Rules).
11 Cf., In Re Calvary Communications, Inc. 18 FCC Rcd. 18172,
18174 (Enf. 2003) (denying a good faith reduction for the
violation of Section 17.51 of the Rules when an owner of an
antenna structure knew its automatic alarm system was
malfunctioning, and made weekly checks of the antenna structure
instead of daily checks, as required by Section 17.47(a)(1) of
the Rules); In Re AT&T Wireless Services, Inc. 17 FCC Rcd. 21866,
21869 (2002) (denying cancellation or reduction of proposed
forfeiture for violation of Section 17.51 of the Rules, even
though the lighting outage was caused by a malfunction of an
automatic alarm system that was in place and the owner of the
antenna structure claimed that the tower and alarm system were
inspected regularly); In Re USA Tower, Inc. 16 FCC Rcd. 13182,
13184 (Enf. 2001) (denying a reduction for the violation of
Section 17.51 of the Rules when the owner did not offer evidence
that it made daily inspections of the tower or that it properly
inspected or maintained its alarm system, which failed to detect
the lighting outage).
12 Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994)
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.