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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
BK Towers, LLC ) File Number: EB-08-KC-0272
Owner of Antenna Structure ) NAL/Acct. No.: 200832560002
Manter, Kansas ) FRN: 0007040009
ASR #1032514 )
Adopted: October 16, 2008 Released: October 20, 2008
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of one thousand six hundred dollars ($1,600) to BK Towers,
LLC ("BK"), owner of antenna structure bearing registration number
1032514, Manter, Kansas ("Tower"), for willful and repeated violation
of Section 17.47(a) of the Commission's Rules ("Rules"). The noted
violation involves BK's failure to make observations of the antenna
structure's lights at least once each 24 hours, either visually or by
observing an automatic indicator designed to register any failure of
2. On September 10, 2008, in response to a complaint of a tower light
outage from the city manager of Manter, Kansas, an agent from the
Commission's Kansas City Office of the Enforcement Bureau ("Kansas
City Office") determined that the structure in question was antenna
structure number 1032514, which, according to the Antenna Structure
Registration database, is owned by BK. An agent from the Kansas City
Office contacted BK about the complaint and a representative from BK
stated that it was unaware of the outage. A BK employee was dispatched
to confirm the outage by visiting the Tower site and, upon
confirmation, BK filed a Notice to Airmen ("NOTAM") report with the
Federal Aviation Administration ("FAA") late in the afternoon on
September 10, 2008.
3. On September 11, 2008, an agent from the Kansas City Office
interviewed one of BK's owners, who stated that the automated
monitoring system had not been operational at the Tower for one to one
and a half years and that no person has been assigned or contracted to
monitor the Tower lighting visually. According to the owner, BK relied
on a Sheriff from Stanton County Kansas to inform it of light outages
on the Tower. The agent contacted the Sheriff, who stated that he did
not observe the Tower regularly and was unsure how long the lights on
the Tower had been out.
4. In a series of emails between September 16 and 23, 2008, BK provided
information regarding its light monitoring practices for the Tower. BK
stated that BK employees visually inspected the Tower on August 6,
2008, August 30 or 31, 2008, and September 10, 2008. BK was unable to
specify the precise date that its automatic alarm system was last
operational, but it stated that its "alarm monitoring system has not
been reliable and is being replaced." BK asserted that there have been
a total of only two light outages for the Tower during the past two
years and those occurred on June 6, 2008 and September 10, 2008. BK
stated that the June 6, 2008 outage was reported by the Stanton County
5. On September 30, 2008, the Kansas City Office issued a Notice of
Apparent Liability for Forfeiture to BK in the amount of two thousand
dollars ($2,000) for the apparent willful and repeated violation of
Section 17.47(a) of the Rules. BK submitted a response to the NAL
requesting cancellation or reduction of the proposed forfeiture.
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("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, 12 FCC Rcd 17087 (1997), recon.
denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement"). In
examining BK'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.
7. Section 17.47(a) of the Rules states that the owner of any antenna
structure which is registered with the Commission and has been
assigned lighting specifications ... shall 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, 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. Although an automatic alarm system was installed at the
Tower, according to BK's owner, the system had not been operational
for at least a year prior to September 10, 2008. BK also admitted that
its system was not reliable and needed to be replaced. BK did not have
another automatic indicator to register the failure of the Tower
lights. During the year prior to September 10, 2008, BK admitted that
no employees or contractors visually inspected the Tower's lights on a
daily basis. In fact, at most, BK employees made visual observations
of the lighting status on only two days during the period between
August 1, 2008 and September 9, 2008. It is further noted that BK was
not informed of the Tower light outages on June 6 and September 10,
2008 by its employees. BK's response to the NAL does not dispute any
of these facts. Thus, based on the evidence before us, we find that BK
willfully and repeatedly violated Section 17.47(a) of the Rules by
failing to observe visually the Tower lighting at least once each 24
hours, at a minimum, between August 1 and September 9, 2008.
8. Nevertheless, BK requests reduction or cancellation of the proposed
forfeiture, because it asserts that: 1) no actual harm occurred to any
person or property; 2) BK took immediate post-inspection action to
remedy the violation; and 3) BK has no prior history of violations.
First, we find BK's no harm claim unpersuasive. It is well established
that the absence of public harm is not considered a mitigating factor
of a rule violation. It is also similarly well established that
post-inspection corrective action taken to come into compliance with
the Rules is expected, and does not nullify or mitigate any prior
forfeitures or violations. Although BK asserts that the forfeiture
amount is excessive given its prompt post-inspection compliance
efforts, the proposed forfeiture was assessed at the base forfeiture
amount for failure to conduct required monitoring. Thus, we conclude
that the proposed forfeiture amount is appropriate for the willful and
repeated monitoring violation at issue. Finally, we have reviewed the
record and reduce the forfeiture to $1,600 based on BK's history of
compliance with the Rules.
9. We have examined BK'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 a reduction of
the proposed forfeiture to $1,600 is warranted, based on BK's history
of compliance with the Rules.
III. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, BK Towers, LLC IS LIABLE FOR A
MONETARY FORFEITURE in the amount of one thousand six hundred dollars
($1,600) for violation of Section 17.47(a) of the Rules.
11. 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. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
BK will also send electronic notification on the date said payment is
made to SCR-Response@fcc.gov.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to BK Towers, LLC at
its address of record and to its counsel, Dennis C. Brown, 8124 Cook
Court, Suite 201, Manassas, VA. 20109-7406.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S: 17.47(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832560002
(Enf. Bur., Kansas City Office, September 30, 2008) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term `willful,' ... means the conscious and
deliberate commission or omission of such act, irrespective of any intent
to violate any provision of this Act or any rule or regulation of the
Commission authorized by this Act ...." See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
See Liberty Cable Co., Memorandum Opinion and Order, 16 FCC Rcd 16105
(2001); Pacific Western Broadcasters, Inc., Memorandum Opinion and Order,
50 FCC 2d 819 (1975); AGM-Nevada, LLC, Forfeiture Order, 18 FCC Rcd 1476
(Enf. Bur. 2003); Bureau D'Electronique Appliquee, Inc., Forfeiture Order,
20 FCC Rcd 17893 (SED Enf. Bur. 2005); Western Slope Communications, LLC,
Forfeiture Order, 23 FCC Rcd 8384 (WR Enf. Bur. 2008).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 17.47(a).
47 U.S.C. S: 504(a).
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Federal Communications Commission DA 08-2306
Federal Communications Commission DA 08-2306