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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Arcom Communications ) File Number: EB-05-SJ-005
Owner of Antenna Structure # ) NAL/Acct. No.: 200532680005
1249670 ) FRN:
St. Croix, United States Virgin ) 0010760965
Adopted: December 19, 2005 Released: December
By the Regional Director, South Central Region, Enforcement
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand four hundred
dollars ($2,400) to Arcom Communications (``Arcom''), owner of
antenna structure #1249670 located at or near geographical
coordinates 17º 45? 17.88? N, 064º 47? 58.67? W at Blue Mountain,
St. Croix, USVI, for willful and repeated violation of Section
17.4(a) of the Commission's Rules (``Rules'').1 The noted
violation involves Arcom's failure to register its antenna
2. On May 5, 2004, in response to a complaint of
interference on an unrelated case, an agent from the Commission's
San Juan Office of the Enforcement Bureau (``San Juan Office'')
conducted an inspection at the Blue Mountain transmitter site.
While there, the agent observed the digging of the foundation for
an antenna structure. Although the agent was unaware of the
future antenna structure's ownership at that time, it was later
determined that this foundation was being dug for Arcom.
3. On February 8, 2005, in response to a complaint that
Arcom had constructed an antenna structure at the Blue Mountain
site that was not registered or marked, the agent searched the
Commission's TOWAIR database, the database used to determine if
registration of an antenna structure is required. The agent
found that Arcom's antenna structure at the Blue Mountain site
required registration because of its proximity to the Henry E.
Rohlsen International Airport2 on the island of St. Croix, USVI.
The agent also searched the Commission's antenna structure
registration (``ASR'') database and found that the antenna
structure was not registered.
4. In a series of conversations and emails during the
month of February 2005, the agent advised Arcom that the antenna
structure should have been registered prior to construction
because of its proximity to an airport and that it should contact
the local Federal Aviation Administration (``FAA'') office. In
response to a request by the agent for a valid FAA determination
of no hazard, Arcom provided an FAA study that expired August 11,
2003. On July 13, 2005, Arcom notified the agent that it had
received a valid FAA determination of no hazard that day and that
the tower would be registered. Arcom did not register its
antenna structure until August 10, 2005.
5. On August 17, 2005, the San Juan Office issued a Notice
of Apparent Liability for Forfeiture to Arcom in the amount of
three thousand dollars ($3,000) for the apparent willful and
repeated violation of Section 17.4(a) of the Rules.3 On
September 15, 2005, Arcom submitted a response to the NAL
requesting a reduction or cancellation of the proposed
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,4 Section
1.80 of the Rules,5 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) (``Forfeiture Policy
Statement''). In examining Arcom'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.6
7. Section 17.4(a) of the Rules provides 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.7 Section 17.4(a)(1) of the Rules specifies
that for a proposed antenna structure, the owner must register
the structure prior to construction.8 Arcom's antenna structure
requires registration with the Commission because of its
proximity to an airport. Arcom began construction of the antenna
structure sometime in May of 2004. Arcom did not register its
antenna structure until August 10, 2005.
8. In its response, Arcom argues that the proposed
forfeiture is barred by the one-year statute of limitations set
forth in Section 503(b)(6) of the Act. Arcom admits that the
initial violation occurred sometime around May 5, 2004, when
Arcom failed to register its antenna structure prior to
construction. It further claims that this was a one-time
violation that can not be repeated. Thus, it asserts the NAL was
released more than one year after May 5, 2004 on August 17, 2005,
in violation of the one-year statute of limitations. Although
Arcom is correct that the initial violation occurred when it
failed to register its antenna structure prior to construction,
it is incorrect that this violation ended on the day it began
construction. Section 17.4(a) requires owners to register
certain antenna structures. If an owner of a proposed structure
fails to register its structure prior to construction, it has
committed a violation of the Rules. However, initiating
construction does not cancel the requirement that the structure
be registered. Thus, each day that an owner fails to register
its structure constitutes another day of violation.9
9. Arcom also argues that the forfeiture should be
cancelled, because the Commission's registration requirements are
confusing. Arcom claims that a sentence in a Public Notice
issued by the Wireless Telecommunications Bureau, ``The Antenna
Structure Registration program allows the FCC to fulfill its
statutory duty to require painting and lighting of antenna
structures that may pose a hazard to air navigation,''10 led it
to believe that only towers that pose a hazard to air traffic are
required to be registered. Arcom states that, because it
obtained a no hazard determination from the FAA,11 it thought it
was not required to register its tower. Arcom failed to note
that the Public Notice also clearly stated that it created a
database at wireless.fcc.gov/antenna, which would allow owners to
determine whether registration is required. If Arcom had
searched the TOWAIR database on that webpage, it would have found
that registration was required because the structure is located
near an airport and fails the glide slope calculation. Moreover,
Section 17.4 of the Rules states that all antenna structures that
require notice of proposed construction to the FAA must be
registered. Section 17.7 of the Rules states when notification
to the FAA is required.12 These Rules make no exceptions for
owners that have been issued no hazard determination letters.
Indeed, the Public Notice stated that an antenna structure cannot
be registered unless it has been issued a determination of no
hazard. Therefore, we do not find Arcom's arguments persuasive.
10. In addition, Arcom argues that the Commission is
equitably estopped from proceeding with the proposed forfeiture
because an agent was aware of the tower on May 5, 2004 and only
consulted the ASR database in February 2005. We disagree with
Arcom's interpretation of the facts and its assertion. An agent
observed the digging of the foundation for the antenna structure
on May 5, 2004 when he was investigating an unrelated matter. At
that time, the agent had no reason to believe that a violation
regarding the structure had occurred and had no information
regarding ownership of the structure. Therefore, the agent did
not research the antenna structure foundation. After receiving a
complaint in February 2005, however, the agent inquired into the
status of the antenna structure and eventually discovered a
registration violation. Such action does not bar the Commission
from enforcing its Rules.
11. Finally, if the Commission does not cancel the NAL,
Arcom requests a full evidentiary hearing before an
Administrative Law Judge, pursuant to Section 503(b)(3)(A) of the
Act and Section 1.80(g) of the Rules. Section 503(b)(3)(A) of
the Act13 states that ``[a]t the discretion of the Commission, a
forfeiture penalty may be determined against a person .. after
notice and an opportunity for a hearing before the Commission or
an administrative law judge...'' Section 1.80(g) of the Rules14
states that procedures for hearings ``will ordinarily be followed
only when a hearing is being held for some reason other than the
assessment of a forfeiture...'' The Rule also states that
``these procedures may be followed whenever the Commission, in
its discretion, determines that they will better serve the ends
of justice.'' Accordingly, the ``reference to a notice of
opportunity for hearing mentioned in Section 1.80(g) of the
Commission's Rules is a discretionary provision available to the
Commission that is not normally utilized when only monetary
forfeiture matters are involved.''15 We conclude that an
evidentiary hearing is not required in this case, which involves
solely a monetary forfeiture. Arcom received notice regarding
the legal and factual bases for the violation and proposed
forfeiture in accord with the forfeiture provisions of the Act,
and has been afforded an opportunity to respond and present
exculpatory arguments and evidence.
12. Based on the evidence before us, we find that Arcom
willfully16 and repeatedly17 violated Section 17.4(a) of the
Rules by failing to register its antenna structure.
13. Arcom requests a reduction of the forfeiture because it
cooperated with the agent and its history of compliance with the
Rules. Corrective action taken to come into compliance with the
Rules and cooperation with agents is expected, and does not
nullify or mitigate any prior forfeitures or violations.18
However, we have reviewed Arcom's record and conclude a reduction
of the forfeiture to $2,400 based on history of compliance is
14. We have examined Arcom's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Forfeiture Policy Statement. As a result of our review, we
reduce the forfeiture proposed for this violation to $2,400,
based on Arcom's history of compliance with the Rules.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's Rules,
Arcom Communications IS LIABLE FOR A MONETARY FORFEITURE in the
amount of two thousand four hundred dollars ($2,400) for
willfully and repeatedly violating Section 17.4(a) of the Rules.
16. 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.19
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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail
may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106. Requests for full payment under an
installment plan should be sent to: Associate Managing Director,
Financial Operations, 445 12th Street, S.W., Room 1A625,
Washington, D.C. 20554.20
17. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Arcom Communications at its record of address and to
its attorney, Matthew J. Plache, Catalano & Plache, PLLC, 1054
31st Street, NW, Washington, DC 20007.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central
1 47 C.F.R. § 17.4(a).
2 This airport was previously known as Alexander Hamilton
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532680005 (Enf. Bur., San Juan Office, August 17, 2005)
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 17.4(a).
8 47 C.F.R. § 17.4(a)(1).
9 We agree with Arcom that late registration of an antenna
structure does not ``cure'' the violation. However, eventually
registering an antenna structure does end a continuing violation.
10 Wireless Telecommunications Bureau Announces 60-day Amnesty
for Structures Identified in Initial Quarterly Audit of Antenna
Structures, 18 FCC Rcd 15340 (WTB, 2003) (``Public Notice'').
11 It should be noted that this no hazard determination letter
expired August 11, 2003, prior to when Arcom began construction.
Thus, it is unreasonable for Arcom to conclude that its tower
posed no hazard to aviation when it began construction.
12 47 C.F.R. § 17.7.
13 47 U.S.C. § 503(b)(3)(A).
14 47 C.F.R. § 1.80(g).
15 Computer Data, Inc., Order, 9 FCC Rcd 263 (Field Operations
16 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 (1991).
17 The 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.'' 47 U.S.C. §
18 See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099
19 47 U.S.C. § 504(a).
20 See 47 C.F.R. § 1.1914.