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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File Number: EB-05-NF-054
Tidewater Communications LLC )
NAL/Acct. No.: 200632640004
Owner of Antenna Structure # 1024387 )
FRN #: 0009269473
Grosse Point Farms, MI )
MEMORANDUM OPINION AND ORDER
Adopted: December 19, 2006 Released: December 21, 2006
By the Assistant Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we deny in part and
grant in part the petition for reconsideration filed by Tidewater
Communications LLC ("TC") of the Forfeiture Order issued October 20,
2006. The Forfeiture Order imposed a monetary forfeiture in the amount
of $10,000 on TC for the willful violation of Section 17.51(a) of the
Commission's Rules ("Rules"). The noted violation involved TC's
failure to exhibit obstruction lighting on antenna structure #
2. On June 4, 2005, an agent from the Commission's Norfolk Office of the
Enforcement Bureau ("Norfolk Office") observed antenna structure #
1024387 after sunset with a top and middle flashing beacon
extinguished. The Antenna Structure Registration ("ASR") for the
structure specifies that it must be painted and lit. The Federal
Aviation Administration ("FAA") had not issued a Notice to Airmen
("NOTAM") regarding the lighting outage.
3. On June 6, 2005, the agent from the Norfolk Office interviewed
employees of TC about the tower lighting outage observed by the agent
on June 4, 2005. The employees stated that TC used a manual light
indicating system to check the status of the lighting on the antenna
stucture once every 24 hours and then logged the results. According to
written instructions, employees were to notify TC's chief operator and
the FAA immediately of any lighting problems. The agent inspected the
lighting logs for the antenna structure and found that TC noted a
lighting outage in its logs on June 3, 4, and 5, 2005 and did not
notify the FAA of the outage until June 5, 2005. Additionally, the
agent observed that TC had listed a lighting outage in its logs on
August 4, 2004 but did not notify the FAA of the outage until August
10, 2004. The chief operator for the station stated that he believed
the logs were accurate. On June 6, 2005, TC employees stated that they
were aware that the antenna structure was required to be painted and
lit, that the structure's lights were to be monitored once every 24
hours, and that they were required to notify the FAA immediately of
any known extinguishments of top steady or flashing lights which last
more than 30 minutes. The employees could not explain why TC failed to
notify the FAA of the lighting outages, as required, on August 4,
2004, June 3, 2005, and June 4, 2005.
4. On November 23, 2005, the Norfolk Office issued a Notice of Apparent
Liability for Forfeiture to TC in the amount of ten thousand dollars
($10,000) for the apparent willful violation of Section 17.51(a) of
the Rules. On December 23, 2005, the Norfolk Office received TC's
response to the NAL requesting a reduction or cancellation of the
proposed forfeiture. On October 20, 2006, the Enforcement Bureau
("Bureau") released the Forfeiture Order. The Bureau received TC's
petition for reconsideration on November 20, 2006, requesting
reduction or cancellation of the forfeiture.
5. 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 examining
TC's petition, 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 any
other such matters as justice may require.
6. In its petition for reconsideration, TC alleges that its violation was
inadvertent and not willful and requests that the forfeiture be
cancelled, citing Vernon Broadcasting, Inc. TC states that it
instructed its employees on the notification procedures regarding
lighting outages approximately 2 years before the agent's inspection
and did not fail to manage its employees. TC asserts that the
violation occurred solely because of employee error and that it
promptly reprimanded this employee. TC states the chief engineer,
while on a boat trip, called in the outage to the station, as soon as
he observed it on June 5, 2006, and the station called the FAA.
Accordingly, TC claims its violation was not conscious or deliberate,
i.e., willful. We disagree with TC's assertions. TC is required to
comply with the Rules and should ensure that its employees are aware
of and follow its internal procedures. TC owned an antenna structure,
whose lights malfunctioned. It is irrelevant whether TC's general
manager or chief engineer was aware of the outage before June 5, 2006.
TC's employee logged the outage on June 3 and 4 but due to employee
error failed to notify the FAA immediately. The FAA was not notified
until June 5, 2006. The "Commission has long held that licensees and
other Commission regulatees are responsible for the acts and omissions
of their employees and independent contractors," and the Commission
has "consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent contractors have
resulted in violations." It is also well established that a mistake
resulting in a rule violation is considered a willful violation. TC's
behavior is also distinct from that in Vernon Broadcasting. In this
case, TC instructed its employees on lighting procedures approximately
2 years prior to the instant violation, not shortly before the
violation. TC did not remind its employees of the proper procedures
after employees failed to follow those procedures in August 2004 and
did not, prior to the inspection, regularly remind its employees of
the lighting procedures. TC also provided no evidence that it recently
or regularly inspected its light indicating system or recently viewed
the structure lights before the outage.
7. In the event the forfeiture is not cancelled, TC again requests that
the forfeiture be reduced on the basis of good faith efforts and
history of compliance with the Rules. The Bureau denied its previous
request to reduce the forfeiture based on good faith efforts to comply
with the Rules, because it stated the agent notified TC of the outage
via voicemail prior to it contacting the FAA. In a sworn statement, TC
states that as part of routine maintenance TC's voice mailbox was
quickly emptied after a weekend, and it did not receive the agent's
message left on June 4, 2005. TC asserts that its notification of the
outage to the FAA on June 5, 2005 should constitute good faith efforts
to comply with the Rules. Based on this new evidence, we agree and
conclude a reduction based on good faith efforts to comply with the
Rules is warranted. Therefore, we reduce the forfeiture from $10,000
8. Regarding its history of compliance, TC again states, because the
Bureau cancelled the forfeiture stemming from the 2001 matter, that it
does have a history of compliance with the Rules. We disagree.
Although we concluded that TC's actions did not warrant a forfeiture,
given TC's good faith efforts to comply with the Rules and its history
of compliance, we did not conclude that a violation had not taken
place. In 2001, there was a light outage lasting more than 30
minutes that was not immediately reported to the FAA. Accordingly, a
Notice of Violation was issued to TC on November 16, 2001. This
Notice of Violation was not cancelled by the Bureau and constitutes a
history of non-compliance with the Rules. Accordingly, we agree with
the Forfeiture Order that a reduction based on history of compliance
with the Rules is not warranted.
9. Therefore, there is no basis for reversal of the ultimate finding in
the Forfeiture Order that TC willfully failed to exhibit obstruction
lighting in violation of Section 17.51(a) of the Rules. However, we
do grant a reduction of the forfeiture to $8,000, based on TC's good
faith efforts to comply with the Rules.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, Tidewater Communications LLC's petition for
reconsideration of the October 20, 2006 Forfeiture Order IS hereby
GRANTED IN PART AND DENIED IN PART.
11. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Tidewater
Communications LLC IS LIABLE FOR A MONETARY FORFEITURE in the amount
of eight thousand dollars ($8,000) for violation of Section 17.51(a)
of the Rules.
12. Payment of the $8,000 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. 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.
13. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Tidewater
Communications LLC at its address of record and to its attorney, Gary
S. Smithwick, Smithwick & Belendiuk, P.C., 5028 Wisconsin Avenue, NW,
Suite 301, Washington, DC 20016.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
Tidewater Communications LLC, Forfeiture Order, DA 06-2040 (Enf. Bur.
South Central Region October 20, 2006) ("Forfeiture Order").
47 C.F.R. S 17.51(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632640004
(Enf. Bur., Norfolk Office, November 23, 2005) ("NAL").
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).
Vernon Broadcasting, Inc., Memorandum Opinion and Order, 60 RR 2d 1275,
1277 (1986) (fencing forfeiture cancelled because licensee regularly
inspected fence and inspected it shortly before inspection, fence was
vandalized between the time of its inspection and agent inspection, and
there was no evidence that the licensee was aware of the broken fence or
that it had failed to monitor the condition of the site).
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863,-64, para. 7 (2002); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34 (1991)(holding that a company's reliance on an independent
contractor to construct a tower in compliance of FCC rules does not excuse
that company from a forfeiture); Wagenvoord Broadcasting Co., Memorandum
Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee responsible
for violations of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248 (Enf. Bur. 2004)
(holding a licensee liable for its employee's failure to conduct weekly
EAS tests and to maintain the "issues/programs" list).
American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420, para. 11 (Enf. & Cons. Inf. Div.,
Wireless Tel. Bur. 1997) (quoting Triad Broadcasting Company, 96 FCC 2d
1235, 1244 (1984).
A violation resulting from an inadvertent mistake or a failure to become
familiar with the Commission's requirements is considered a willful
violation. See North Country Repeaters, 19 FCC Rcd 22139 (Enf. Bur. 2004);
PBJ Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard
Communications Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting Co., Inc.,
96 FCC 2d 1235 (1984).
The agent left a voice message in TC's general mailbox. According to the
agent, he was not given the option of leaving a message for a specific
See Tidewater Communications LLC, Memorandum Opinion and Order, 18 FCC Rcd
5524 (Enf. Bur. 2003) ("Memorandum Opinion and Order").
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 17.51(a).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-2537
Federal Communications Commission DA 06-2537