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


In the Matter of                 )    File Number EB-02-SJ-087
                                )
Jorge L. Estrada                 )    Nal/Acct. No. 200332680002
Owner of Antenna Structure       )
Number 1043939 in Cubuy, Puerto  )    FRN 0008354300
Rico                             )
Bayamon, Puerto Rico             )
                                )
                                )

                        FORFEITURE ORDER

Adopted:  November 17, 2004             Released:  November 19, 
2004

By the Assistant 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 Jorge Estrada (``Mr. Estrada'') for willful violation 
of Section 17.51 of the Commission's Rules.1  The violation 
involves Mr. Estrada's failure to exhibit all red obstruction 
lighting from sunset to sunrise on antenna structure number 
1043939 in Cubuy, Puerto Rico.

     2.   On February 13, 2003, the Commission's San Juan, Puerto 
Rico Resident Agents Office (``San Juan Office'') issued a Notice 
of Apparent Liability for Forfeiture (``NAL'') to Mr. Estrada for 
a forfeiture in the amount of ten thousand dollars ($10,000).2  
Mr. Estrada filed his response to the NAL on March 17, 2003.

 II.      BACKGROUND

     3.   On December 12, 2002, Commission agents from the San 
Juan Office inspected the antenna structure (``tower'') bearing 
antenna structure registration (``ASR'') number 1043939.  The 
agents' review of Commission records revealed that the tower was 
registered to Jorge L. Estrada.  The tower is located 1.1 miles 
N.E. of road 186 Km 9.2, Bo. Cubuy, in Canovanas, Puerto Rico.  
The inspection resulted from a complaint on December 5, 2002, 
alleging that the red beacon lights required on the tower had 
been out for weeks.  During the inspection, the agents observed 
that the tower was not lighted by a red beacon during evening 
hours.  At the time of the inspection, the Federal Aviation 
Administration (``FAA'') had no record of a reported light outage 
for the tower.  One of the agents called Mr. Estrada on December 
13, 2002 and requested that he contact him at the San Juan 
Office.

     4.   On December 16, 2002, one of the investigating agents 
spoke with Mr. Estrada about the tower light outage.  Mr. 
Estrada, upon being informed of the light outage by the agent, 
responded that he was aware that the lights were out, but had not 
informed the FAA of the outage.3  

     5.   On February 13, 2002, the San Juan Office issued the 
subject NAL to Mr. Estrada finding that he apparently willfully 
and repeatedly violated Section 17.51 of the Rules.  In 
responding to the NAL, Mr. Estrada submits a signed declaration 
in which he states that he was aware that the tower lights were 
out prior to his notification to the FAA of the outage.  He 
offers numerous reasons for cancellation of the forfeiture 
including: his lack of prior violations; his allegation that the 
outage was caused by a short circuit (a unique occurrence for 
which he had no control); his immediate response to repair the 
tower light; his allegation that the tower's location among other 
lighted towers caused no diminution in air traffic safety; and 
his inability to pay the forfeiture.  Lastly, Mr. Estrada asserts 
that Private Land Mobile Station WSM 534, Chesapeake Bay 
Contractors, Inc.4 supports elimination of the forfeiture amount 
as the violation should not be considered repeated.

 III.     DISCUSSION

     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, 7 (``Policy Statement'').  In examining Mr. Estrada'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.8  

     7.    Section 17.51 of the Rules requires that all red 
obstruction lighting be exhibited from sunset to sunrise unless 
otherwise specified.  Mr. Estrada asserts that the violation was 
not willful because it was unintended and was caused by a unique 
event for which he had no control (i.e., a short circuit at the 
tower).  Whether a violation is willful rests on a finding that 
the licensee knew he was doing the act in question, regardless of 
whether there was an intent to violate the law.9  Here, Mr. 
Estrada admits that he was aware that the lights were out at the 
time he was contacted by the agent from the San Juan Office.  
Further, his lack of intent does not negate a finding that the 
violation was willful.10  Accordingly, we find that Mr. Estrada 
willfully violated Section 17.51 of the Rules.11   

     8.   Mr. Estrada asserts that he took immediate steps to 
remedy the outage, but states that the lights were not restored 
until December 16, 2002, subsequent to notification of the 
violation by the investigating agents.  Remedial efforts taken 
after notification of the violation by the Commission, would not 
result in a cancellation or reduction of the forfeiture because 
such efforts are not considered a mitigating factor.12  Further, 
Mr. Estrada, has not provided sufficient specificity or 
documentation (e.g. copies of receipts, work orders, etc.) to 
support a determination that corrective efforts were taken prior 
to being contacted by the agents. 13  We therefore find that Mr. 
Estrada's corrective efforts do not warrant a finding of good 
faith efforts on his part.  

     9.   Mr. Estrada contends, as mitigation, that because there 
were other lighted towers in the near vicinity of his tower, no 
diminution of air traffic safety occurred.  The Commission has 
previously rejected arguments of this nature as a basis for 
cancellation of forfeitures, and we do so again today.14  

     10.  Mr. Estrada's request for cancellation of the 
forfeiture due to financial distress was not accompanied by his 
tax returns, or any other documentation as set forth in paragraph 
11of the NAL.  Any claim of inability to pay must specifically 
identify the basis for the claim by reference to the financial 
documentation submitted.  Accordingly, there is no basis to 
cancel the assessed forfeiture amount due to inability to pay.

     11.  Finally, we find that a reduction of the proposed 
forfeiture is warranted because of the Mr. Estrada's compliance 
record 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

     12.  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 Jorge L. Estrada IS LIABLE FOR A MONETARY FORFEITURE 
in the amount of eight thousand dollars ($8,000) for willful 
violation of  Section 1.903(a) of the Act.

     13.  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.16  
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, D.C. 20554.17 

     14.  IT IS FURTHER ORDERED that a copy of this Order shall 
be sent by first class mail and certified mail return receipt to 
Mr. Estrada at his address of record and his Counsel Richard F. 
Swift, Esq., Irwin, Campbell & Tannenwald, P.C., 1730 Rhode 
Island Avenue, N.W., Suite 200, Washington, D.C. 20036-3101.

                         FEDERAL COMMUNICATIONS COMMISSION
                    

                                                                  
                         George R. Dillon
                                                            
Assistant Chief, Enforcement Bureau












_________________________

1 47 C.F.R.  17.51.
2 Notice  of  Apparent  Liability for  Forfeiture,  NAL/Acct  No. 
200332680002 (Enf. Bur., San  Juan Office, released February  13, 
2003).
3 Mr. Estrada was informed by the agent as to how to file an  FAA 
report.  As a result, Notice to  Airmen #12028 was issued by  the 
FAA on December 16,  2002, when Mr. Estrada  informed the FAA  of 
the outage.

4 9 FCC Rcd 1647 (Field Oper. Bur. 1994).
5 47 U.S.C.  503(b).
6 47 C.F.R.  1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
8 47 U.S.C.  503(b)(2)(D).
9 See 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  5 (1991).   
10 See Alpha Ambulance, Inc., 19 FCC Rcd 2547, 2549 (2004) 
(finding that where an ambulance company ``consciously and 
deliberately'' operated transmission equipment without an 
authorization willfully violated the noted statutory and 
regulatory requirements irrespective of any intent to do so).
11 Because we find the violation to be willful, we need not 
address Mr. Estrada's argument that the violation was not 
repeated.  See Section 503(b)(1) of the Act, 47 U.S.C.  
503(b)(1) (violator liable for forfeiture if violation is willful 
or repeated).
12 See Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994), 
(``corrective action taken to come into compliance with 
Commission rules or policy is expected, and does not nullify or 
mitigate any prior forfeiture or  violations.'') See also AT&T 
Wireless Services, Inc., 17 FCC Rcd 7891 (2002), forfeiture 
ordered, 17 FCC Rcd 21866, 21875-76 (2002).
13 We note that while the violation continued for several days, 
Mr. Estrada admittedly failed to properly respond to the known 
outage by taking the necessary steps to inform the FAA of the 
outage until after being notified of that responsibility by one 
of the investigating agents on December 16, 2002.  See 47 C.F.R. 
 17.48 (requiring a tower owner to notify FAA of any outage not 
repaired within thirty minutes of discovery).  Further, at the 
time of our agents' inspection of the tower, they did not observe 
evidence that corrective measures were underway.
14 Id. at 21870-71(finding that a downward adjustment was not 
warranted on the grounds that there was no indication that the 
unpainted antenna structure actually compromised air safety); 
Centel Cellular Company of North Carolina Limited Partnership, 11 
FCC Rcd 10800, 10808 (1996) (``The Commission has rejected 
similar [no harm] arguments raised by licensees in the past and 
we now reject in the strongest terms [the licensee's] 
assertion.'').
15 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
16 47 U.S.C.  504(a).
17 See 47 C.F.R.  1.1914.