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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Florida Food Products, Inc. ) File No. EB-04-TP-037
) NAL/Acct. No. 200432700015
Owner of an Unregistered Antenna Structure ) FRN 0001801687
Eustis, Florida )
MEMORANDUM OPINION AND ORDER
Adopted: September 6, 2006 Released: September 8, 2006
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order") we deny the petition
for reconsideration filed by Florida Food Products, Inc. ("FFP"),
owner of an unregistered antenna structure in Eustis, Florida. FFP
seeks reconsideration of the Forfeiture Order in which the Chief,
Enforcement Bureau ("Bureau") found it liable for a monetary
forfeiture in the amount of three thousand dollars ($3,000) for
willful and repeated violation of the registration requirements of
Section 17.4(a) of the Commission's Rules ("Rules"). The noted
violation involves FFP's failure to register its antenna structure.
2. On a January 26, 2004 inspection, an agent from the Commission's
Tampa, Florida Field Office ("Tampa Office") determined that FFP's
antenna structure was not registered. On March 15, 2004, the Tampa
Office issued to FFP a Notice of Apparent Liability for Forfeiture
("NAL") in the amount of $3,000 for apparent willful and repeated
violation of the registration requirements of Section 17.4(a) of the
Rules. In its response, FFP did not dispute the NAL's findings but
argued that it was entitled to relief for attempting to comply with
the Commission's registration requirements after the Tampa Office
notified FFP of the lack of registration.
3. The Forfeiture Order affirmed the NAL, and the Bureau issued a $3,000
forfeiture to FFP for willful and repeated violation of Section
17.4(a) of the Rules. In addition, the Forfeiture Order required,
pursuant to Section 308(b) of the Communications Act of 1934, as
amended, ("Act,") that FFP report to the Bureau within thirty (30)
days of the release of the Forfeiture Order whether it had achieved
compliance with Section 17.4(a) of the Rules. In a timely-filed
request for reconsideration, FFP notified the Commission that the
tower had been demolished on September 14, 2004, and it further
requested that the Forfeiture Order be reconsidered.
4. The forfeiture amount in this case was assessed in accordance with
Section 503(b) of the Act, Section 1.80 of the Rules, and the
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In assessing
forfeitures, Section 503(b)(2)(D) of the Act requires that we 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. As discussed below, we have
considered FFP's response in light of these statutory factors and have
determined that no reduction of the assessed forfeiture is warranted.
5. Section 17.4(a)(2) of the Rules provides that, effective July 1, 1996,
the owner of any proposed or existing antenna structure that requires
notification to the Federal Aviation Administration ("FAA") must
register the structure with the Commission. Section 303(q) of the Act
requires the tower owner to maintain painting and lighting of the
tower as the Commission prescribes.
6. In addition, Section 17.4(a)(2) of the Rules provides that the owner
of an antenna structure that had been assigned painting or lighting
requirements prior to July 1, 1996 must register the structure prior
to July 1, 1998. FFP concedes that it was the owner of this antenna
structure. Accordingly, FFP was required to give notice to the FAA,
and register the structure with the Commission. The Commission holds
the owner of an antenna structure primarily responsible for awareness
of and compliance with its Rules. Accordingly, we conclude that it was
FFP's responsibility to register the antenna structure. FFP's failure
to register the tower in a timely manner is significant; the
Commission has repeatedly found that registration of towers is of
utmost importance in the interests of public safety.
7. The Commission's requirement of tower registration is integral to its
oversight of all tower owners' compliance with painting and lighting
specifications. FFP's attempt to have its forfeiture dismissed by
reporting the demolition of its tower does not mitigate its failure to
timely register its antenna structure. FFP did not register its tower
until May 17, 2004, more than three months after the Tampa Office
notified it on January 26, 2004, and more than six years after it was
required to have its tower registration completed.
8. The Commission expects that violations that are observed during
inspection and/or that are the subject of an enforcement action will
be corrected, and does not believe that subsequent corrective measures
mitigate or warrant forfeiture cancellations or reductions for past
violations. Based on the record, we thus do not find that FFP's
demolition of the tower warrants cancellation or reduction of the
IV. ordering clauses
9. Accordingly, IT IS ORDERED that, pursuant to Section 405(b) of the
Act, and Section 1.106(f) of the Rules, the request for
reconsideration filed by Florida Food Products, Inc. former owner of
an unlicensed antenna structure in Eustis, Florida, IS DENIED.
10. Payment of the three thousand dollar ($3,000) forfeiture assessed by
the Forfeiture Order 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. 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 payment of the full amount of the NAL
under an installment plan should be sent to: Associate Managing
Director - Financial Operations, 445 12^th Street, S.W., Room 1A625,
Washington, D.C. 20554.
11. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order
shall be sent by First Class and Certified Mail Return Receipt
Requested to Florida Food Products, Inc., P.O. Box 1300, Eustis,
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Florida Food Products, Inc., 19 FCC Rcd. 24,923 (Enf. Bur. 2004)
47 C.F.R. S 17.4(a).
Because FFP's antenna structure exceeded 200 feet and was subject to
Federal Aviation Administration notification, the Rules require that the
structure be registered with the Commission. See 47 C.F.R. S 17.4(a); see
also 47 C.F.R. S 17.7(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200432700015
(Enf. Bur., Tampa Office, released March 15, 2004).
47 U.S.C. S 308(b)
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 17.4(a)(2).
47 U.S.C. S303(q).
See, e.g. Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64 PP
AT&T Wireless Services, Inc., 16 FCC Rcd. 6805, 6806 P 8 (Enf. Bur. 2001)
("AT&T WS I"); AT&T Wireless Services, Inc., 17 FCC Rcd. 21866, 21871 P 14
(2002) ("AT&T WS II").
See 47 C.F.R. Part 17, esp. SS 17.1, 17.23; see also Streamlining the
Commission's Antenna Structure Clearance Procedure and Revision of Part 17
of the Commission's Rules Concerning Construction, Marking and Lighting of
Antenna Structures, WT Docket No. 95-5, Report and Order, 11 FCC Rcd.
4272, 4287 P 35 (1995), recon denied, Streamlining the Commission's
Antenna Structure Clearance Procedure and Revision of Part 17 of the
Commission's Rules Concerning Construction, Marking and Lighting of
Antenna Structures, WT Docket No. 95-5, Memorandum Opinion and Order and
Order on Reconsideration, 15 FCC Rcd. 8676 (2000); "No Tolerance Policy
Adopted for Unregistered Antenna Structures," Public Notice, 1999 WL 10060
(January 13, 1999); Northern Electric Cooperative, 19 FCC Rcd 19644, 19646
P 14 (Enf. Bur. 2004).
See, e.g., Natchez Communications, Inc., 15 FCC Rcd 4628, 4629-4630, PP 7,
10 (Enf. Bur. 2000), consent decree, 16 FCC Rcd. 11,745 (Enf. Bur. 2001).
See, e.g. AT&T WS II, supra, 17 FCC Rcd at 21875-76 PP 26-28 (finding that
a downward adjustment of an aggregate forfeiture was not warranted, where
the carrier lacked an effective antenna compliance program at the time of
the violations and only corrected such violations after the Commission
brought them to its attention); Seawest Yacht Brokers, 9 FCC Rcd 6099,
6099 P 7 (1994) (finding that a downward adjustment of a forfeiture was
not warranted, where a public coast station operator discontinued
unauthorized operations after the Notice of Apparent Liability was
issued); TCI Cablevision of Maryland, Inc., 7 FCC Rcd 6013, 6014 P 8
(1992); South Central Communications Corp., 18 FCC Rcd 700, 702-03 P 9
(Enf. Bur. 2003).
In its request for reconsideration, FFP offered to pay a lower forfeiture
amount, but it did not support the request for reduction of the proposed
forfeiture with evidence of its inability to pay. See, e.g., Webnet
Communications, Inc., 18 FCC Rcd 6870, 6878-6879 P 16 (2003) (finding that
a request to reduce or cancel a forfeiture based on a claim of inability
to pay should include detailed and relevant financial documentation, that
the carrier did not provide such documentation, and that therefore there
was no basis to reduce the total forfeiture on such grounds).
47 C.F.R. S 1.106(f).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission DA 06-1753
Federal Communications Commission DA 06-1753