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

                                 )
In the Matter of                 )
                                 )      File Numbers: EB-04-AN-024
ACS Wireless                     )                    EB-04-AN-027
Anchorage, Alaska                )
                                 )       NAL/Acct. No.200532780001
Registrant of Antenna Structures )                  FRN 0001567940
ASR #1022129, Kasilof, Alaska    )
ASR #1006025, Soldotna, Alaska   )


                        FORFEITURE ORDER

Adopted: December 21, 2005                              Released: 
December 23, 2005 

By the Regional Director, Western Region, Enforcement Bureau:

I.  INTRODUCTION

     1.        In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of three thousand dollars 
($3,000) to ACS Wireless (``ACS'') for willful and repeated 
violation of Section 17.57 of the Commission's Rules ("Rules").1  
On December 8, 2004, the Enforcement Bureau's Anchorage Resident 
Agent Office issued a Notice of Apparent Liability for Forfeiture 
(``NAL'') in the amount of $6,000 to ACS after determining that 
ACS failed to immediately notify the Commission of a change in 
the ownership information of the Antenna Structure Registrations 
(``ASR's'') for the above-referenced antenna structures.  In this 
Order, we consider ACS's arguments that despite the violation, 
the Commission was still able to contact ACS, as ACS was the site 
manager for the structures; that the violation was inadvertent, 
as ACS believed it had updated the ASR's for these structures; 
and that ACS has a history of overall compliance with the 
Commission's Rules.

II. BACKGROUND

     2.        On July 29, 2004, agents from the Anchorage 
Resident Agent Office inspected antenna structures #1022129 and 
#1006025.  At the time of inspection, the ASR's listed the 
Municipality of Anchorage, d/b/a/ Mactel, Inc., as the registered 
owner.  The agents observed, at each antenna structure site, a 
posted sign indicating ACS Wireless as the site manager.

     3.   On September 21, 2004, an Anchorage agent sent ACS two 
Letters of Inquiry, requesting further information concerning the 
ownership of the two antenna structures.  ACS replied on October 
18, 2004.2  In its Responses, ACS admitted to acquiring ownership 
of antenna structures #1022129, and #1006025 on May 14, 1999.  
ACS also admitted that it was aware of the requirement to notify 
the Commission upon a change in antenna structure ownership 
information for structures assigned an ASR number.  ACS stated 
that in 1999, it hired a number of people to address the numerous 
name changes and ownership changes resulting from ACS's 
acquisition of four local exchange companies, a wireless company, 
and a long distance company.  ACS asserted that it believed 
appropriate steps were taken to indicate the appropriate 
ownership of its numerous entities but that some changes were 
overlooked or missed.  ACS also indicated that on October 13, 
2004, it filed an FCC Form 854 for each of the antenna structures 
to update the ownership information for each structure.3  On 
November 1, 2004, an Anchorage agent reviewed the Commission ASR 
database and confirmed the ASR's accurately reflected ACS as the 
current owner of antenna structures #1022129, and #1006025.

     4.   On December 8, 2004, the Anchorage Office issued a NAL 
in the amount of $6,000 to ACS.4  In the NAL, the Anchorage 
Office found ACS apparently willfully and repeatedly failed to 
immediately notify the Commission of a change in the ownership 
information of the ASR's for the above-referenced antenna 
structures.  ACS filed a response to the NAL on January 11, 2005 
(``Response'').  In its Response, ACS requests that the 
forfeiture be cancelled or reduced.   ACS states that it first 
became aware that the antenna structures were not registered when 
it received the LOI from the Anchorage Office.  It then 
investigated the matter and corrected the ASR ownership 
information for the two structures.  ACS argues that the fact 
that it was site manager for each antenna site made ``easy 
contact'' with ACS available to the Anchorage agents.5 ACS also 
argues that its violation was not conscious or deliberate and 
that it believed in good faith that it had updated all of its 
ASR's.  Finally, ACS argues that it has a history of overall 
compliance with the Commission's Rules and, therefore, is 
entitled to a reduced forfeiture amount.  

III.  DISCUSSION

     5.        The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Act,6 Section 
1.80 of the Rules,7 and The Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines.8  In examining ACS'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.9

     6.        Section 17.57 of the rules requires the owner of 
an antenna structure to immediately notify the Commission using 
FCC Form 854 upon any change in structure height or change in 
ownership information.10  The Commission requires antenna 
structure owners to maintain current antenna structure 
registration information with the Commission and post ASR numbers 
at the base of antenna structures to allow for easy contact if 
problems arise.11  We first address ACS's argument that the fact 
that it was the site manager made ``easy contact'' available to 
the Anchorage agents.  In the definition of antenna structure 
owner, Section 17.2(c) of the Rules specifically states that 
``[n]otwithstanding any agreements made between the owner and any 
entity designated by the owners to maintain the antenna 
structure, the owner is ultimately responsible for compliance . . 
. .''12  It is therefore incumbent upon the owner of the antenna 
structure to ensure that they can be reached immediately when a 
compliance issue arises, hence, the requirement that the new 
owner immediately update the ownership information on a 
structure's ASR.  There is no requirement that the Commission 
staff, when trying to contact a structure owner, contact the site 
manager or any other party.  A failure to update the ownership 
information for an antenna structure requires the Commission 
staff to engage in additional research to ascertain the ownership 
and the responsibility for any violation.  Time is often of the 
essence in these situations when lights have ceased to be lit and 
public safety is at issue.  Consequently, we find no merit to 
this argument.

     7.   We next address ACS's argument that it believed in good 
faith that it had updated all of the ASR's for its antenna 
structures and that upon notification by the Commission of the 
errors, it corrected the ownership records.  ACS acknowledges 
that it did not notify the Commission of the ownership change for 
the antenna structures until after it received the LOI from the 
Anchorage Office.  Generally, we will not downwardly adjust or 
cancel forfeitures where the violator has not instituted 
corrective measures until after it receives notice from the 
Commission regarding the violation.13  We note that in its 
responses to the Anchorage Office's LOI's, ACS states that it 
acquired these antenna structures on May 14, 1999, indicating 
that the violation had been ongoing for five years when ACS 
received the LOI's.  Therefore, this argument is without merit as 
well.  Finally, ACS argues that it has an overall history of 
compliance with the Commission's Rule and therefore, a reduction 
in the forfeiture amount is warranted.  A review of the 
Commission's records reveals, however, that ACS and its 
associated entities previously have been found in violation of 
the Commission's Rules.14  Consequently, no reduction is 
warranted.

     8.        We have examined ACS'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 
conclude that ACS willfully and repeated violated Section 17.57.  
However, we note that antenna structure #1006025 is not mandated 
by its ASR to be painted or equipped with specific types of 
lighting to ensure air safety.15  We therefore cancel the 
forfeiture as to antenna structure #1006025.  Considering the 
entire record and the factors listed above, we find that a $3,000 
forfeiture is warranted.

IV.  ORDERING CLAUSES

     9.        ACCORDINGLY, IT IS ORDERED that, pursuant to 
Section 503(b) of the Communications Act of 1934, as amended 
(``Act''), and Sections 0.111, 0.311 and 1.80(f)(4) of the 
Commission's Rules, ACS Wireless IS LIABLE FOR A MONETARY 
FORFEITURE in the amount of $3,000 for willfully and repeatedly 
violating Section 17.57 of the Rules.16

     10.       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.17  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 bycheck or 
money order may be mailed to Federal Communications Commission, 
P.O. Box358340,Pittsburgh, PA 15251-8340. Payment by overnight 
mail may be sent toMellon Bank/LB358340,500 Ross Street, Room 
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be 
made to ABA Number043000261, receiving bankMellon Bank, and 
account number911- 6106.  Requests for full payment under an 
installment plan should be sent to: Associate Managing Director - 
Financial Operations, Room 1A625, 445 12th Street, S.W., 
Washington, D.C. 20554.18

     11.       IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class Mail and Certified Mail Return 
Receipt Requested to ACS Wireless, 600 Telephone Avenue, 
Anchorage, Alaska 99503. 



                              FEDERAL COMMUNICATIONS COMMISSION




                              Rebecca L. Dorch
                              Regional Director, Western Region
                              Enforcement Bureau







_________________________

147 C.F.R.  17.57.

2Letters from ACS to the Anchorage Resident Agent Office (October 
18, 2004).  

3See ASR File Numbers A0400123 and A0400118, filed October 13, 
2004. 

4Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200532780001 (Enf. Bur., Western Region, Anchorage Office, 
released December 8, 2004).  

5ACS states that the former owner of the structures, Mactel, has 
undergone a name change in recent years and now goes by ``d/b/a 
ACS Wireless.''  ACS states that the name Mactel is synonymous 
with ACS Wireless, Inc. 

647 U.S.C.  503(b).

747 C.F.R.  1.80.

812 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

947 U.S.C.  503(b)(2)(D).

1047 C.F.R.  17.57. Section 303(q) of the Act gives the 
Commission authority to regulate certain antenna structures if 
and when such structures constitute, or there is a reasonable 
possibility that they may constitute, a menace to air navigation.  
47 U.S.C.  303(q).  

11See, e.g., Spectrasite Communications, Inc. 18 FCC Rcd 22799, 
22800 (2003).

12Section 17.2(c) of the Rules, 47 C.F.R. 17.2(c). 

13See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875 - 76 
(2002). 

14See, e.g., ACS Television, L.L.C., 17 FCC Rcd 14586 (EB 2002) 
(Issuing a $11,000 forfeiture against ACS Television, L.L.C. for 
willful violation of Section 74.780, 73.3538(a)(1) and 
73.3538(a)(4) of the Rules); Notice of Violation: ACS of 
Anchorage License Sub, Inc., NOV No. V20053278002, (Enf. Bur., 
Western Region, Anchorage Resident Agent Office, released October 
12, 2004.) 

15See Section 17.23 of the Rules, 47 C.F.R.  17.23 (Antenna 
structures must conform to the Federal Aviation Administration's 
(``FAA's'') painting and lighting recommendations set forth on 
the structure's FAA determination of ``no hazard'').  See n. 10, 
supra. 

1647 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 1.80(f)(4), 
17.57.

1747 U.S.C.  504(a).

18See 47 C.F.R.  1.1914.