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

In the Matter of                )
                                )
William Saunders, Owner of Gresham   )  File No. EB-02-AT-326
Communications, Inc.            )
                                )
Owner of Antenna Structure located at 32 52' 52''     )    
NAL/Acct. No. 200332480005
North Latitude by 80 41' 24'' West Longitude in  )
Walterboro, South Carolina      )    FRN 0007-7826-38       

                  MEMORANDUM OPINION AND ORDER 

Adopted:   January 30, 2006             Released:   February   2, 
2006
 
By the Chief, Enforcement Bureau:

I.                                      INTRODUCTION
1.   
2.        1.   In this Memorandum Opinion and Order (``Order''), 
  we grant in part and deny in part the petition for 
  reconsideration filed by William Saunders, owner of Gresham 
  Communications, Inc. (``Gresham'').  Mr. Saunders seeks 
  reconsideration of the Forfeiture Order1 in which the 
  Assistant Chief, Enforcement Bureau, found him liable for a 
  monetary forfeiture in the amount of $10,000 for willful 
  violation of Section 17.51 of the Commission's Rules.2    The 
  noted violation involves Mr. Saunders' failure to continuously 
  exhibit all red obstruction lighting on his antenna structure 
  from sunset to sunrise.  
3.        
II.                        BACKGROUND

4.   2.   On April 26, 2000, during a routine inspection of an 
  antenna structure believed to be located at 32 52' 52'' 
  latitude, 80 41' 24'' longitude (Walterboro, South Carolina) 
  owned by Mr. Saunders, a Commission field agent from the 
  Atlanta, Georgia Field Office (``Atlanta Office'') discovered 
  that this antenna structure had no Antenna Structure 
  Registration (``ASR'') number posted and was not lighted by a 
  red beacon during evening hours. A subsequent search of the 
  Commission's ASR database revealed that the antenna structure 
  was not registered with the Commission as required by the 
  Rules.  On May 5, 2000, the Atlanta Office issued a Notice of 
  Violation (``NOV'') to Mr. Saunders, Gresham's owner, for 
  violating Sections 17.51 and 17.4(a) of the Rules.  Mr. 
  Saunders replied to the May 5, 2000 NOV by stating that the 
  light outage had been repaired and by providing a copy of an 
  application for registration of the antenna structure which he 
  stated had been filed on June 19, 2000.3
5.               
6.        3.   In response to a complaint that the instant 
  antenna structure had not been lighted in the evening for a 
  period of two years, on September 18 and 19, 2002, an agent 
  from the Atlanta Office re-inspected Mr. Saunders' antenna 
  structure.  The red beacon light required for the structure 
  was out on both September 18 and 19, 2002.  During the agent's 
  inspection, she found no ASR number on the structure as 
  required by the Rules.  As a result of her observations, the 
  agent checked the ASR database and discovered that the 
  structure was not registered in Mr. Saunders' name with the 
  Commission as required by the Rules.4  
7.   
8.   4.   On October 30, 2002, the Commission's Atlanta Office 
  issued a Notice of Apparent Liability (``NAL'') to Gresham for 
  a forfeiture in the amount of thirteen thousand dollars 
  ($13,000) for Gresham's willful and repeated violations of 
  Sections 17.51 and 17.4(a) of the Rules by failing to 
  continuously exhibit all red obstruction lighting on his tower 
  from sunset to sunrise and failing to register his antenna 
  structure with the Commission.5  Mr. Saunders filed a response 
  to the NAL on December 23, 2002.6  After considering Mr. 
  Saunders' response to the NAL, the Assistant Chief, 
  Enforcement Bureau issued the subject Forfeiture Order on 
  December 6, 2004, in which he cancelled the portion of the 
  forfeiture attributable to the registration violation and 
  imposed a $10,000 forfeiture for Mr. Saunders'  violation of 
  Section 17.51 of the Rules.  On January 5, 2005, Mr. Saunders 
  filed a petition for reconsideration of the Forfeiture Order, 
  which he supplemented on February 15, 2005.
9.   
III.      DISCUSSION

10.  5.   The forfeiture amount in this case was assessed in 
  accordance with Section 503(b) of the Communications Act of 
  1934, as amended (``Act''),7 Section 1.80 of the Rules,8 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) (``Policy Statement'').  In examining Mr. Saunders' 
  petition for reconsideration, 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 such other 
  matters as justice may require.9  
11.  
12.  A.   Tower Lighting
13.  
14.  6.   Section 17.51 of the Rules requires that all red 
  obstruction lighting be exhibited from sunset to sunrise 
  unless otherwise specified.  In his petition, Mr. Saunders 
  acknowledges that the top beacon on his tower was not 
  operating; he also opines, however, that he was not given 
  consideration for the fact that the other two lights on the 
  tower were operating.  Mr. Saunders contends that the fact 
  that the other beacons were operating reflects that there was 
  adequate electricity and effort to comply with the 
  Commission's rules.  
15.  7.   Section 17.51 of the Rules requires that all required 
  lighting be exhibited on the tower from sunset to sunrise 
  (emphasis added).  The fact that one beacon was out 
  establishes a violation of the rule.  The fact that the two 
  remaining beacons were lighted is not indicative of Mr. 
  Saunders' efforts to comply with the rules, especially in 
  light of the fact that the complaint that the Commission 
  received alleged that the outage had spanned a period of two 
  years.  Mr. Saunders has not disproved this allegation.  
16.  
17.  8.   Mr. Saunders also asserts that the Forfeiture Order 
  does not grant any favorable consideration to his statement, 
  made in response to the NAL, that the light outage was not due 
  to a failure of maintenance but was a result of vandalism.    
  Mr. Saunders provides a sworn declaration in support of this 
  contention with his petition and urges that we take this into 
  account as the reason for the light outage.  
18.  
19.  9.   We do not find the reason given by Mr. Saunders to 
  explain the light outage sufficient to warrant reconsideration 
  of the Forfeiture Order in light of the complaint that the 
  tower light was out for two years, and that our agent observed 
  the outage on two consecutive days.  Moreover, Section 17.47 
  of the Rules provides that the owner of any antenna structure 
  which is registered with the Commission and has been assigned 
  lighting specifications referenced in this part: 
20.  
21.  (a)(1) [s]hall make an observation of the  antenna 
  structure's  lights  at  least  once  each  24  hours 
  either  visually   or  by   observing  an   automatic 
  properly  maintained indicator  designed to  register 
  any failure of  such lights, to insure that all  such 
  lights  are  functioning  properly  as  required;  or 
  alternatively,   (2)  shall   provide  and   properly 
  maintain  an  automatic  alarm  system  designed   to 
  detect  any failure  of such  lights and  to  provide 
  indication of such failure to the owner.10   
22.  
23.  Although Mr. Saunders has not been cited for a violation of 
  Section 17.47 of the Rules, our investigation of Mr. Saunders' 
  compliance efforts regarding the tower includes an analysis 
  and discussion of which type of system Mr. Saunders had in 
  place to make him aware of light outages and why that system 
  did not make him aware of the subject light outage before he 
  was informed by the Commission.  With either system in place, 
  the longest a light outage would go unnoticed would be 24 
  hours.  As already noted, a Commission agent observed that the 
  top beacon was out for two consecutive days.  Accordingly, we 
  do not believe that Mr. Saunders' compliance efforts warrant a 
  reduction of the forfeiture.
24.  
     B.   Inability to Pay    
25.  
26.  10.  Finally, Mr. Saunders claims an inability to pay the 
  forfeiture and submits financial documentation including three 
  years of joint federal income tax returns in support of his 
  claim.  Mr. Saunders also asserts that, because he alone owns 
  the tower, his wife's income should not be included when 
  determining his ability to pay.  We do not agree.  Because 
  Mrs. Saunders' income is a contribution towards the household 
  and sustenance of both Mr. and Mrs. Saunders, her income 
  impacts Mr. Saunders' ability to pay the forfeiture; thus, it 
  should be considered in an analysis of his ability to pay.  
27.  
28.  11.  When considering an inability to pay claim, the 
  Commission has determined that, in general, a licensee's gross 
  revenues are the best indicator of its ability to pay a 
  forfeiture.11  Because Mr. Saunders operates the tower as a 
  sole proprietor, we have considered his personal tax returns 
  in determining his ability to pay.  After reviewing Mr. 
  Saunders' claim and the supporting documentation, we believe 
  that payment of the $10,000 forfeiture would pose a financial 
  hardship and conclude that a reduction of the proposed 
  forfeiture amount to $5,000 is appropriate, as it would 
  represent an amount more consistent with Commission 
  precedent.12
29.  
IV.       ORDERING CLAUSES

30.  12.  Accordingly, IT IS ORDERED that, pursuant to Section 
  405 of the Act13 and Section 1.106 of the Rules, Mr. Saunders' 
  petition for reconsideration is GRANTED TO THE EXTENT 
  DISCUSSED ABOVE and DENIED IN ALL OTHER RESPECTS. 
31.  
32.  13.  IT IS FURTHER ORDERED that, pursuant to Section 503(b) 
  of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the 
  Rules,14 Mr. Saunders IS LIABLE FOR A MONETARY FORFEITURE in 
  the amount of five thousand dollars ($5,000) for willful 
  violation of Section 17.51 of the Rules.
33.  
34.  14.  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.15  Payment may be made by check or similar 
  instrument, payable to the order of the Federal Communications 
  Commission.  The payment must include the NAL/Acct. No. 
  referenced above.  Payment by check or money order may be 
  mailed to Forfeiture Collection Section, Finance Branch, 
  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, SW, Room 
  1A625, Washington, D.C. 20554.16  
35.  
36.  15.  IT IS FURTHER ORDERED that a copy of this Order shall 
  be sent by First Class and Certified Mail Return Receipt 
  Requested to William Saunders, P.O. Drawer 11649, Columbia, SC 
  29211, 
37.  and his counsel, M. Scott Johnson, Esq., Fletcher, Heald & 
  Hildreth, PLC, 1300 North 17th Street, 11th Floor, Arlington, 
  Virginia 22209.
38.                           
39.  FEDERAL COMMUNICATIONS COMMISSION                      
                         
                              Kris Anne Monteith
                              Chief, Enforcement Bureau 

_________________________

1 William Saunders, Owner of Gresham Communications, Inc., 19 FCC 
Rcd 23566 (Enf. Bur. 2004).

2 47 C.F.R.  17.51.  

3 Mr. Saunders' antenna structure application of June 19, 2000 
revealed that he did business under the name of Gresham 
Communications, Inc. and was ambiguous as to the owner of the 
instant structure.

4 The prior Commission data base for such antenna structures 
revealed that the instant antenna structure has been in place 
since 1975 and therefore required registration with the 
Commission by 1998. 

5 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332480005 (Enf. Bur., Atlanta Office, released October 30, 
2002).

6 The NAL was issued under the name Gresham Communications, Inc.  
Mr. Saunders' December 20, 2002, response contained both his 
declaration of ownership of Gresham and of the instant antenna 
structure.  Mr. Saunders responded as the antenna structure owner 
to the NAL.  

7 47 U.S.C.  503(b).

8 47 C.F.R.  1.80.

9 47 U.S.C.  503(b)(2)(D).

10 47 C.F.R.  17.47(a)(1) and (2).

11 PJB Communications  of Virginia,  Inc., 7 FCC  Rcd 2088,  2089 
(1992).

12  Id.  at  2089  (forfeiture  not  deemed  excessive  where  it 
represented approximately 2.02  percent of  the violator's  gross 
revenues); Hoosier  Broadcasting Corporation,  15 FCC  Rcd  8640, 
8641 (Enf. Bur. 2002) (forfeiture  not deemed excessive where  it 
represented approximately  7.6 percent  of the  violator's  gross 
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com.  Car. 
Bur. 1992) (forfeiture not deemed excessive where it  represented 
approximately 3.9 percent of the violator's gross revenues).

13 47 U.S.C.  405. 

14 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

15 47 U.S.C.  504(a).

16 See 47 C.F.R.  1.1914.