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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
) File No. EB-02-BF-338
North Country Repeaters )
Owner of Antenna Structure # ) NAL/Acct. No. 200332280008
On Rand Hill ) FRN: 0004-1349-61
Beekmantown, New York
Adopted: November 9, 2004 Released: November 12,
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand dollars
($2,000) to North Country Repeaters (``North Country''), the
owner of Antenna Structure Registration (``ASR'') No. 1009975,
for willful and repeated violation of Sections 17.4(g) and 17.50
of the Commission's Rules (``Rules'').1 The noted violations
involve North Country's failure to display the ASR number at the
base of the tower and failure to maintain the required painting
to ensure good visibility of the tower.
2. On March 4, 2003, the Commission's Buffalo, New
York Office (``Buffalo Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to North Country for a
forfeiture in the amount of fifteen thousand dollars ($15,000).2
North Country filed a response to the NAL on April 7, 2003.
3. On August 28, 2002, an agent from the Buffalo
Office inspected the antenna structure on Rand Hill, in
Beekmantown, New York. The agent found that the tower's paint
was chipped and faded, that no ASR number was posted, and that
the measured coordinates of the tower did not match the
coordinates of any registered with the Commission. On September
9, 2002, the Buffalo Office issued a Notice of Violation
(``NOV'') citing violations of Sections 17.4(a),3 17.4(g), and
17.50 of the Rules. North Country responded on September 18,
2002, stating that steps had been taken to correct each of the
violations. The tower had been repainted, the ASR number was
posted at the base of the tower, and correction of the tower's
coordinates with the FAA and Commission was in process.4
4. On March 12, 2003, the Buffalo Office issued the
subject NAL to North Country for fifteen thousand dollars
($15,000) for apparent willful and repeated violation of
Sections 17.4(a), 17.4(g), and 17.50 of the Rules. North
Country responded to the NAL on April 7, 2003. North Country
argues that its violation of the Rules was not willful. With
regard to the alleged violation of Section 17.4(a) of the Rules,
North Country stated that the tower's original coordinates,
dating from the 1980's, were calculated with a topographical map
prior to the availability of handheld GPS devices. When North
Country filed its proposed construction application with the FAA
to increase the height of the tower in April 1992, it used those
original coordinates. When the Commission began requiring tower
registration applications, North Country filed the required
documentation, again using the original coordinates.
5. North Country also argues that it painted the
tower as required when it was initially constructed and
registered with the FAA. It does not comment on its failure to
post the registration number.
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''),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 North Country'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.7
7. Section 17.4(a) of the Rules requires that the
owner of any proposed or existing antenna structure that
requires notice of proposed construction to the FAA must
register the structure with the Commission and, among other
things, include the coordinates of the tower. North Country
duly registered its tower, ASR No. 1009975, as required by
Section 17.4(a)(2) of the Rules.8 It is undisputed, however,
the coordinates registered by North Country for its tower were
approximately two-tenths of a mile away from the actual tower
8. It is well established that a mistake resulting in
a rule violation is considered a willful violation.10 In this
case, however, given the circumstances, we hereby cancel the
portion of the proposed forfeiture pertaining to violation of
Section 17.4(a) of the Rules, in the amount of three thousand
9. Section 17.4(g) of the rules requires the ASR
number to be displayed in a conspicuous place so as to be
readily visible near the base of the antenna structure. The
Buffalo Office agent found that the tower did not have this
identification and North Country does not dispute that the ASR
number was not so posted. Accordingly, we find that North
Country willfully11 and repeatedly12 violated Section 17.4(g) of
10. Section 17.50 of the Rules requires that antenna
structures be cleaned and repainted as often as necessary to
maintain good visibility. North Country states that it painted
the tower as required when it was initially constructed. At the
time of inspection, the Buffalo Office agent found that the
paint on North Country's antenna structure was badly chipped and
faded. Section 17.6(a) of the Rules explicitly states that the
antenna structure owner is responsible for maintaining the
painting and lighting required by the rules.13 Moreover,
licensees are expected to know and comply with the Commission's
rules.14 Thus, North Country, as the antenna structure owner,
was responsible for knowing whether the tower was properly
painted in compliance with Section 17.50.15 The Commission has
consistently held that there is a significant public safety
concern with regard to antenna structure registration
requirements, including painting to maintain the tower's
visibility to aircraft.16 Moreover, remedial action taken to
correct the violations, while commendable, is not a mitigating
factor.17 Accordingly, we find that North Country willfully and
repeatedly violated Section 17.50 of the Rules.
11. North Country requests cancellation or reduction
of the forfeiture based on its small business status and on its
inability to pay. We have reviewed the financial information
provided by North Country and we find that this information
provides a basis for reduction of the forfeiture to two thousand
12. We have examined North Country'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 North Country willfully and repeatedly violated
Sections 17.4(g) and 17.50 of the Rules, and we find that,
although cancellation of the proposed monetary forfeiture for
violation of these rule sections is not warranted, reduction of
the forfeiture amount is appropriate as indicated above.
IV. ORDERING CLAUSES
13. 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,19 North Country Repeaters, owner of ASR
number 1009975, on Rand Hill, Beekmantown, New York, IS LIABLE
FOR A MONETARY FORFEITURE in the amount of two thousand dollars
($2,000) for its violation of Sections 17.4(g) and 17.50 of the
14. 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.20 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. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
15. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Mr. Erling Svendsen, North Country Repeaters, 994
Military Turnpike, Suite 103, Plattsburgh, New York 12901.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. §§ 17.4(g) and 17.50.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332280008 (Enf. Bur., Buffalo Office, released March 4, 2003).
3 47 C.F.R. § 17.4(a).
4 The Buffalo Office agent followed up with North Country on
December 16, 2002 regarding the tower's coordinates, and received
a faxed copy of the correction.
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. § 17.4(a)(2).
9 A check of Commission records verifies that North Country has
corrected the error in its antenna registration records with the
FAA and the Commission.
10 A violation resulting from an inadvertent mistake or a
failure to become familiar with the FCC's requirements is
considered a willful violation. See 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).
11 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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
12 As provided by 47 U.S.C. § 312(f)(2), which applies to
violations for which forfeitures are assessed under Section
503(b) of the Act, ``[t]he 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.''
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). Southern California Broadcasting Co., supra.
13 47 C.F.R. § 17.6(a).
14 See Econopage of Cleveland, Inc., 16 FCC Rcd 2989, 2990 (Enf.
15 See Madison Broadcasting Group, Inc., 17 FCC Rcd 16081, 10683
(Enf. Bur. 2002).
16 SpectraSite Communications, Inc. 17 FCC Rcd. 7884, 7888
(2002); AT&T Wireless Services, Inc. 17 FCC Rcd. 21866, 21871
17 See, e.g., AT&T Wireless Services, Inc., supra; Seawest Yacht
Brokers, 9 FCC Rcd 6099 (1994); Station KGVL, Inc., 42 FCC 2d
258, 259 (1973).
18 The Commission has determined that, in general, a licensee's
gross revenues are the best indicator of its ability to pay a
forfeiture. PJB Communications of Virginia, Inc., 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues).
19 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
20 47 U.S.C. § 504(a).
21 See 47 C.F.R. § 1.1914.