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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
Bayamon, Puerto Rico )
Adopted: November 17, 2004 Released: November 19,
By the Assistant Chief, Enforcement Bureau:
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.
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
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.
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,
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
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
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]
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.