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


In the Matter of                 )    File No. EB-02-NF-141
                                )
SpectraSite Communications,      )    NAL/Acct. No. 200332640008
Inc.                             )
Cary, North Carolina             )    FRN: 0006-1525-73

                        FORFEITURE ORDER

Adopted:  August 25, 2004               Released:  August 31, 
2004

By the Commission:

I.   INTRODUCTION

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. 
II.  BACKGROUND

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 
  both towers.  
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.   
III.      DISCUSSION 

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 
  may require.11
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 
  station.
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 
  Rules.  
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
                    


                                                                  
                         Marlene Dortch
                         Secretary
           
_________________________

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.
21 Id.
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 
adjustment factor). 
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.