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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-PL-157
Northern Electric Cooperative )
Antenna Structure at ) NAL/Acct. No. 200332420001
N 45° 27' 41'', W 98° 20' 15'', ) FRN: 0002-4325-40
Bath, South Dakota
Adopted: October 13, 2004 Released: October 15,
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand dollars
($3,000) to Northern Electric Cooperative (``Northern''), the
owner of an antenna structure located at approximately N 45° 27'
41'', W 98° 20' 15'', in Bath, South Dakota, for willful and
repeated violation of Section 17.4(a) of the Commission's Rules
(``Rules'').1 The noted violation involves Northern's failure
to register its antenna structure.
2. On April 18, 2003, the Commission's St. Paul
District Office (``St. Paul Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Northern for a
forfeiture in the amount of three thousand dollars ($3,000).2
Northern filed a response to the NAL on May 1, 2003.
3. On December 3 and 4, 2002, an agent from the St.
Paul Office inspected a painted and lighted antenna structure
located at the rear of Northern's building on Route 12, Bath,
South Dakota. The agent measured the coordinates of the
structure using a Global Positioning System (GPS) receiver. The
agent found no Commission records that the antenna structure had
4. On January 24, 2003, the St. Paul Office issued a
Letter of Inquiry (LOI) to Northern, asking, inter alia, for
information pertaining to the apparently unregistered tower at
the rear of Northern's building. Northern responded on March
13, 2003, stating that the antenna structure had a height of
192' above ground level, but that in October 2002 an antenna was
added to the structure that increased its height to 211' above
5. On April 18, 2003, the St. Paul Office issued an
NAL to Northern for three thousand dollars ($3,000) for willful
and repeated violation of Section 17.4(a) of the Commission's
Rules (``Rules''). Northern responded to the NAL on May 1,
6. Northern states that it believed that the antenna
structure was exempt from the Commission's registration
requirement because the structure itself was less than 200 feet
in height. Northern permits Station WB0TPF3 to use the antenna
structure, and states that it was Station WB0TPF that added the
antenna that increased the height of the structure to 211 feet.
Northern asserts that after the St. Paul Office agent's
inspection, it became aware that the antenna structure required
registration with the Federal Aviation Administration (``FAA'')
and the Commission. Northern indicates that air safety was not
viewed as a problem with regard to the 211 foot tower because of
the other large guyed towers in the area.
7. Northern argues that it expected Station WB0TPF to
notify Northern if the height of the antenna structure
necessitated registration. Northern contends that the
Commission erred in identifying its actions as willful and
repeated, and that the fine was unjustly assessed.4 Northern,
apparently believing that the proposed forfeiture would be owed
by Station WB0TPF, argues that Station WB0TPF should not be
assessed a fine for putting up an antenna that benefits the
community, and asks that the forfeiture be cancelled. Northern
states that it will register the tower.
8. The NAL assessed the proposed forfeiture amount in
this case in accordance with Section 503(b) of the 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 Northern's response to the NAL, 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.7
9. Section 503 of the Communications Act of 1934, as
amended (``Act''),8 authorizes the Commission to impose
forfeitures for ``willful'' and/or ``repeated'' violations of
applicable statutory or regulatory requirements. Specifically,
Sections 503(b)(1)(A) and (B) of the Act provide that any party
who ``willfully'' and/or ``repeatedly'' violates any term or
condition of a Commission issued license, permit, certification,
or other authorization, or any provision of the Act, or any of
the Commission's Rules, shall be liable for a forfeiture
10. The Act defines ``willful'' as ``the conscious and
deliberate commission or omission of an act, irrespective of any
intent to violate'' the law. Consistent with Congressional
intent, the Commission has interpreted ``willful'' in forfeiture
proceedings to mean actions or omissions that are committed
knowingly (i.e, that a violator intended to commit the act or
omission that was found to have violated a statutory and/or
11. The Act defines ``repeated'' as ``the commission
or omission of such act more than once or, if such commission or
omission is continuous, for more than one day.''10
12. Section 17.4(a) of the Rules states that the owner
of an antenna structure that requires notice of proposed
construction to the Federal Aviation Administration (``FAA''),
must also register the structure with the Commission.11
Northern concedes that it is the owner of this antenna
structure. Northern's antenna structure height exceeded 200
feet after Northern's permittee added an antenna. Accordingly,
Northern was required to give notice to the FAA, and register
the structure with the Commission. We note that in its
response, Northern states that it was aware that the addition of
an antenna made the antenna structure taller than 200 feet.
13. The Commission holds the owner of an antenna
structure primarily responsible for awareness of and compliance
with its Rules.12 In this case, it appears that Northern
erroneously assumed that its permittee was responsible for any
tower registration matters. In fact, Northern, as the owner of
the tower, is the responsible party. It is well established
that mistake or inadvertence resulting in a rule violation does
not exonerate the tower owner and the violation is considered to
be willful.13 Accordingly, we conclude that it was Northern's
responsibility to register the antenna structure when its
permittee added an antenna that increased the structure's height
to exceed 200 feet. Northern's failure to register the tower is
significant; the Commission has repeatedly found that
registration of towers is of utmost importance in the interests
of public safety.14
14. Section 303(q) of the Act requires the tower owner
to maintain painting and lighting of the tower as the Commission
prescribes. The Commission's requirement of tower registration
is integral to its oversight of all tower owners' compliance
with painting and lighting specifications. Northern concedes
that its antenna structure was unregistered from the time that
its permittee added an antenna. Commission records indicate
that to date, and notwithstanding its promise to do so, Northern
still has not registered the 211 foot antenna structure. In
view of this ongoing failure on Northern's part, we require that
it provide a report to the Enforcement Bureau showing that its
structure located at approximately N 45° 27' 41'', W 98° 20'
15'', is in compliance with the Commission's Rules and further
showing its plan for maintaining future compliance. This report
shall be submitted within 30 days of the release date of this
15. We have examined Northern'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 Northern willfully and repeatedly violated Section
17.4 of the Rules, and we find no basis for rescinding or
reducing the $3,000 forfeiture for this violation.
IV. ORDERING CLAUSES
16. 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,15 Northern Electric Cooperative, owner
of the antenna structure located at approximately N 45° 27'
41'', W 98° 20' 15'', in Bath, South Dakota, IS LIABLE FOR A
MONETARY FORFEITURE in the amount of three thousand dollars
($3,000) for its violation of Section 17.4(a) of the Rules.
17. IT IS FURTHER ORDERED that, pursuant to Section
303(q) of the Act, Northern must submit the reports described in
paragraph 14 no later than thirty (30) days from the release
date of this Forfeiture Order to: Federal Communications
Commission, Enforcement Bureau, Spectrum Enforcement Division,
445 12th Street, S.W., Washington, D.C. 20554, Attention: Susan
18. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, 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, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
19. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Northern Electric Cooperative, West Highway 12,
Bath, South Dakota 57427.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. § 17.4(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332420001 (released April 18, 2003).
3 Station WB0TPF is the Ham Radio Club that uses the antenna
structure for the SKYWARN weather storm warning system.
4 Northern Response at 2.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503.
9 See Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388
¶ 5 (1991) recon. denied, 7 FCC Rcd 3454 (1992).
11 47 C.F.R. § 17.7(a).
12 See, e.g. Eure Family Limited Partnership, 17 FCC Rcd 21861,
21863-64 ¶¶ 6-7 (2002).
13 Southern California Broadcasting Company, 6 FCC Rcd. 4387
(1991)(citing Vernon Broadcasting, Inc., 60 RR2d 1275, 1277
(1986); Fay Neel Eggleston, 19 FCC2d 829 (1969)). See also PBJ
Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard
Communications Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting
Co., Inc., 96 FCC 2d 1235, 1242 (1984).
14 AT&T Wireless Services, Inc. 16 FCC Rcd. 814, 815 (Enf. Bur.
2001), 17 FCC Rcd. 7891, 7896 (2002); SpectraSite Communications,
Inc. 17 FCC Rcd. 7884, 7888 (2002).
15 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).