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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-NF-141
SpectraSite Communications, ) NAL/Acct. No. 200332640008
Cary, North Carolina ) FRN: 0006-1525-73
Adopted: August 25, 2004 Released: August 31,
By the Commission:
1. In this Forfeiture Order (``Order''), we issue a monetary
forfeiture in the amount of thirty thousand dollars ($30,000),
to SpectraSite Communications, Inc. (``SpectraSite''), owner
of antenna structure number 1018227 located in Richmond,
Virginia, for willful and repeated violation of Section 303(q)
of the Communications Act of 1934, as amended (``Act''),1 and
Section 17.51(b) of the Commission's Rules (``Rules'').2 The
noted violation involves SpectraSite's failure to maintain the
required antenna structure obstruction lighting.
2. On November 4, 2002, the Commission's Norfolk, Virginia
Resident Agent Office (``Norfolk Office'') received
information that a recently constructed, unpainted antenna
structure located on Sesame Street in Richmond, Virginia,
exhibited no obstruction lighting. On November 5, a Norfolk
Office agent observed a 312.8 meter tower that appeared
recently constructed and that displayed no Antenna Structure
Registration (``ASR'') number, obstruction lights or paint.
The Norfolk Office agent determined that no report of lighting
malfunction for any antenna structure near the coordinates of
the 312.8 meter tower had been reported to the Federal
Aviation Administration (``FAA'') Flight Service Station
(``FSS'') covering the Richmond, Virginia area.
3. During the same inspection, the Norfolk Office agent also
observed a 180.9 meter tower on Sesame Street that bore ASR
number 1018227 and that exhibited no lighting and had chipped
and faded paint. No FSS report had been made for this tower.
Commission records showed that the 180.9 meter tower's ASR
number was assigned to the 312.8 meter tower. Commission
records further indicated that SpectraSite was the owner of
4. On November 6 and 7, 2002, the Norfolk Office agent again
observed the 312.8 meter tower and found no lights on the
structure. On November 7, the agent found that the sign with
the ASR number that had been on the 180.9 meter tower was now
placed against the 312.8 meter tower, leaving no ASR number on
the 180.9 meter tower.
5. On November 7, 2002, the Norfolk Office agent interviewed
the Director of Program Management for SpectraSite Broadcast
Group, who stated that SpectraSite owned both the 180.9 meter
structure and the new 312.8 meter structure. The Director
stated that SpectraSite's plan was to replace the shorter
structure with the newer, taller 312.8 meter structure by
February 1, 2003.3 The Director indicated that SpectraSite
completed construction of the 312.8 meter structure on July
17, 2002.4 Regarding the lack of lighting on the 312.8 meter
structure, the Director informed the agent that during
construction, SpectraSite had maintained temporary red
lighting, but he was not sure why the temporary lighting was
removed. The Director also stated that SpectraSite's tower
crew had removed the temporary lighting sometime around the
second week in October. Finally the Director stated that he
did not know why the permanent lights were not exhibited. On
November 7, 2002, after the inspection, the Norfolk Office
agent received information from SpectraSite that it had
finished the lighting connections and the antenna structure
was lighted on that date.
6. On October 27, 2003, the Commission issued a Notice of
Apparent Liability for Forfeiture (``NAL'')5 for a $120,500.00
forfeiture to SpectraSite for willful and repeated violations
of Sections 303(q) of the Act, and Sections 17.4(a) and
17.51(b) of the Rules.6 In addition, the Commission required
that SpectraSite file a report, pursuant to Section 308(b) of
the Act,7 detailing its plan for ensuring that all of its
antenna structures are in compliance with the Commission's
Rules, and its plan for maintaining future compliance.8
SpectraSite filed a response to the NAL on December 1, 2003.
In its response, SpectraSite states that the 180.9 meter tower
was never required to be registered under FAA regulations, and
in any event SpectraSite is not the owner of that tower.
SpectraSite also argues that the forfeiture for its failure to
light the 312.8 meter tower should be reduced because
SpectraSite took remedial measures to correct the lighting
outage prior to notification from the Commission, and that in
fact, it had previously made an appointment with contractors
for November 7, 2002, to restore the tower's lighting.
7. The proposed forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act,9 Section 1.80 of
the Rules,10 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). In examining SpectraSite'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 other such matters as justice
8. 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.12 In the NAL, the Commission based the
proposed forfeiture assessment regarding the 180.9 meter tower
on its belief, based on statements made by a SpectraSite
manager, and on the Commission's records, that SpectraSite
owned that tower. We now conclude that, notwithstanding its
filings to the Commission regarding the 180.9 meter tower and
statements by the SpectraSite manager, SpectraSite was not the
owner and therefore was not responsible for the registration
of the tower.13 Accordingly, based on our review of
SpectraSite's response to the NAL, we conclude that
SpectraSite did not willfully and/or repeatedly violate
Section 17.4(a) of the Rules with regard to the 180.9 meter
tower. We will therefore cancel the proposed forfeiture for
that violation.14 We caution SpectraSite to be more careful
in the future not to file tower registration materials for
towers it does not own.
9. Section 303(q) of the Act states that antenna structure
owners shall maintain the painting and lighting of antenna
structures as prescribed by the Commission. Section 17.21 of
the Rules states that painting and lighting are required for
antenna structures that exceed 60.96 meters, except when it is
shown by the applicant that the absence of such painting and
lighting would not impair the safety of air navigation.15
Section 17.51(b) of the Rules requires that all high intensity
and medium intensity obstruction lighting shall be
continuously exhibited unless otherwise specified. Pursuant
to the conditions of its ASR, SpectraSite's 312.8 meter
antenna structure was required to exhibit high intensity white
obstruction lighting. SpectraSite completed construction of
this structure on July 17, 2002.16 During the Norfolk Office
agent's inspections on November 5, 6, and 7, 2002,17
SpectraSite failed to exhibit any of the required obstruction
lighting on its 312.8 meter structure. Accordingly, we
conclude that SpectraSite willfully18 and repeatedly19
violated Section 17.51(b) of the Rules.
10. SpectraSite seeks reduction of the proposed forfeiture for
violation of Section 17.51(b) of the Rules because it had
taken steps to remedy the lighting outage situation before the
Commission inspected the tower. In its response to the NAL,
SpectraSite states that it had completed the entire required
lighting system for the 312.8 meter tower by July 28, 2002,
except for a bridge that would house permanent wiring to
electrical systems.20 SpectraSite avers that there were
temporary electrical connections installed, and that it ``was
aware that the temporary electrical connections were more
vulnerable to outages.''21 Construction for a permanent bridge
was completed on October 25, 2002. Installation of permanent
conduit and wire had been scheduled for November 7, 2002, the
third day that the Norfolk Office agents inspected the
11. Based on our review of the record, we find that SpectraSite
is entitled to a reduction in its forfeiture for good faith.22
SpectraSite had identified and was attempting to correct the
electrical problems that led to tower lighting outages, and in
fact had scheduled the repairs prior to the agent's
inspection. Accordingly, we find that a reduction in the
forfeiture amount from the thirty-three thousand dollars
($33,000) imposed by the NAL to thirty thousand dollars
($30,000) is warranted for SpectraSite's good faith efforts to
comply with the Rules.23
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b)
of the Act, and Section and 1.80(f)(4) of the Rules,24
SpectraSite Communications, Inc.. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of thirty thousand dollars ($30,000)
for willfully and repeatedly violating Section 17.51(b) of the
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.25 Payment may be made 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. The
payment should reference NAL/Acct. No. 200332640008 and FRN
0006-1525-73. 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. 20554.26
17. IT IS FURTHER ORDERED that copies of this
Order shall be sent by Certified Mail Return Receipt Requested
and by First Class Mail to SpectraSite Communications, Inc., 100
Regency Forest Drive, Cary, North Carolina, 27511, and its
counsel, Janet Fitzpatrick Moran, Esq., Patton Boggs LLP, 2550 M
Street, N.W., Washington, D.C. 20037.
FEDERAL COMMUNICATIONS COMMISSION
1 47 U.S.C. § 303(q).
2 47 C.F.R. § 17.51(b).
3 The 180.9 meter structure was originally registered with ASR
number 1018227. SpectraSite's Director provided a copy of FCC
Form 854 ``Application for Antenna Structure Registration'' filed
on January 3, 2002. The application was annotated ``Modification
of a registered antenna structure.''
4 The Director provided a copy of FAA Form 7460-2 ``Notice of
Actual Construction or Alteration.'' He also provided a copy of
the FAA's Determination of No Hazard to Air Navigation that
cleared the construction of the 312.8 meter structure provided
that the structure exhibited obstruction lighting, FAA,
Determination of No Hazard to Air Navigation, Aeronautical Study
Number 99-AEA-0874-OE, issued May 24, 2000.
5 SpectraSite Communications, Inc., 18 FCC Rcd. 22799 (2003).
6 47 C.F.R. §§ 17.4(a); 17.51(b). The NAL proposed a forfeiture
of $87,500 for violation of Section 17.4 and a forfeiture of
$33,000 for violation of Section 17.51(b).
7 47 U.S.C. § 308(b).
8 SpectraSite complied with this request with a report filed on
December 30, 2003, and supplemented on April 23, 2004. It also
met with Enforcement Bureau staff to reiterate the importance of
its compliance efforts. Accordingly, we find that SpectraSite
has complied with the NAL's requirement to detail its current and
future compliance efforts.
9 47 U.S.C. § 503(b).
1047 C.F.R. § 1.80.
11 47 U.S.C. § 503(b)(2)(D).
12 SpectraSite completed the Commission's form for modification
of the 180.9 meter tower's location, thus indicating that it
owned the tower, without clarifying that it acted as a contractor
for the owner.
13 SpectraSite provided contractual documents between itself and
the tower owner that indicated the extent of SpectraSite's
responsibilities regarding the 180.9 meter tower. According to a
letter it filed February 27, 2004, SpectraSite dismantled the
180.9 meter tower on behalf of the tower's owner, Commonwealth
Public Broadcasting Corporation, on February 23, 2004.
14 Based on our cancellation of the proposed forfeiture of
$87,500 on this point, we find that there is no need to address
the arguments SpectraSite raised regarding whether the 180.9
meter tower should have been registered.
15 47 C.F.R. § 17.21.
16 SpectraSite's response at p. 7.
17 We note that according to the Norfolk agent's on-site
interview with a SpectraSite representative, the tower lighting
was removed by the SpectraSite tower crew sometime around the
second week in October 2002.
18 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).
19 As provided by 47 U.S.C. § 312(f)(2), ``[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.
20 SpectraSite's response, supra, at p. 7.
22 47 C.F.R. § 1.80(b); The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement''), 12 FCC Rcd 17087, 17101 (good faith is a downward
23 See Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 (2003);
recon. denied 18 FCC Rcd 25481 (2003) (good faith reduction
justified where licensee identified violation and ordered
equipment to fix it prior to Commission inspection). See also
Barinowski Investment Co., 18 FCC Rcd 25,067 (Enf. Bur. 2003);
NetCom Technologies, 16 FCC Rcd 9524 (Enf. Bur. 2001).
24 47 C.F.R. §1.80(f)(4).
2547 U.S.C. § 504(a).
26 See 47 C.F.R. § 1.1914.