Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


                                   Before the

                       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
       to $8,000.

    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.


   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

   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.


   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