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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
ERF Wireless, Inc. File No. EB-08-HU-0128
Owner of Antenna Structure NAL/Acct. No. 200932540001
Number 1052967 FRN 0017732520
Adopted: May 27, 2009 Released: May 29, 2009
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand four hundred dollars ($10,400) to ERF
Wireless, Inc. ("ERF Wireless"), owner of antenna structure number
1052967, near Monaville, Texas, for willful and repeated violations of
Sections 17.51(b) and 17.57 of the Commission's Rules ("Rules"). The
noted violations involve ERF Wireless' failure to continuously exhibit
the medium intensity lighting on its antenna structure and failure to
update the ownership information for its antenna structure.
2. On December 22, 2008, in response to a complaint of an unlit and
improperly registered antenna structure, an agent from the
Commission's Houston Office of the Enforcement Bureau ("Houston
Office") reviewed the Commission's Antenna Structure Registration
("ASR") database. The database listed Bishop Tower Company as the
owner of antenna structure number 1052967, near Monaville, Texas. The
complaint alleged that ERF Wireless acquired the antenna structure
over two years ago. The Commission's ASR database listed this
structure as requiring a medium intensity obstruction light that is to
be exhibited continuously. Later that same day, the agent drove out to
the antenna structure site and observed that the medium intensity
obstruction light on the top of the structure was not functioning.
3. On December 29, 2008, an agent from the Houston Office observed
antenna structure number 1052967 in Monaville, Texas, both prior to
and after local sunset. The medium intensity obstruction light was not
functioning. The agent then called the Federal Aviation Administration
("FAA") to determine if the structure owner had notified the FAA of
the outage and whether a Notice to Airmen ("NOTAM") had been issued.
The FAA reported that there was no current NOTAM for this structure,
so the agent informed the FAA of the lighting outage.
4. On March 2, 2009, an agent from the Houston Office observed antenna
structure number 1052967 near Monaville, Texas, both prior to and
after local sunset. The medium intensity obstruction light on the
structure was not functioning. The agent then called the FAA to
determine if the owner had notified the FAA about the outage and
whether a NOTAM had been issued. The FAA reported that there was no
current NOTAM for this structure, so the agent informed the FAA of the
5. On March 5, 2009, an agent from the Houston Office interviewed an
employee of ERF Wireless about antenna structure number 1052967. The
employee stated that ERF Wireless had purchased this antenna structure
from Bishop Tower Company at least one year ago and he had no
knowledge as to why it would not have been properly registered with
the Commission. He also stated that ERF Wireless does not visually
check the lights once every 24 hours and had not observed the
structure lights for about 6 months. He said that ERF Wireless was not
using an automatic alarm system to monitor the lights and that they
were in the process of looking for a monitoring system. Later that
same day, the agent accompanied by two employees of ERF Wireless
inspected antenna structure number 1052967 and observed that the
medium intensity obstruction light was not functioning. A visual
inspection of the lighting equipment installed at the site revealed it
was not functioning. As of March 26, 2009, the ASR database still
listed Bishop Tower Company as the owner of antenna structure number
6. On March 27, 2009, the Houston Office issued a Notice of Apparent
Liability for Forfeiture to ERF Wireless in the amount of thirteen
thousand dollars ($13,000), for the apparent willful and repeated
violation of Sections 17.51(b) and 17.57 of the Rules. ERF Wireless
submitted a response to the NAL requesting a reduction or cancellation
of the proposed forfeiture.
7. The proposed forfeiture amounts 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, 12
FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement"). In examining ERF Wireless' 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.
8. Section 17.51(b) of the Rules states that all high intensity and
medium intensity obstruction lighting shall be exhibited continuously
unless otherwise specified. Antenna structure number 1052967 is
required to exhibit continuously a medium intensity obstruction light.
An agent from the Houston Office observed that the medium intensity
strobe light on antenna structure number 1052967 was not functioning
on December 22 and 29, 2008, and on March 2 and 5, 2009. ERF Wireless
admitted that it had not observed the structure lights at least once
every 24 hours and did not maintain a properly working automatic alarm
system to detect the failure of the structure lights. Moreover, ERF
Wireless failed to notify the FAA about the lighting outage.
9. Section 17.57 of the Rules states that the owner of an antenna
structure which is registered with the Commission must notify
immediately the Commission upon any change in ownership information.
ERF Wireless purchased antenna structure number 1052967 at least as
early as March 2008. ERF Wireless was informed that it was not listed
as the structure owner in the ASR database on March 2, 2009. However,
as of March 24, 2009, the previous owner of the structure was still
listed as the structure owner in the ASR database.
10. In response to the NAL, ERF Wireless states that is has replaced the
medium intensity light on its antenna structure, updated the ownership
information in the ASR database, and is trying to install an alarm
system for the structure lights. However, corrective action taken to
come into compliance with the Rules after an inspection is expected,
and does not nullify or mitigate any prior forfeitures or violations.
11. Finally, ERF Wireless requests a reduction of the forfeiture, because,
"in its five year history, ERF has no prior offenses." We have
reviewed our records and conclude that the forfeiture should be
reduced to $10,400, based on ERF Wireless' history of compliance with
12. We have examined ERF Wireless' 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 reduce the proposed
forfeiture to $10,400, based on ERF Wireless' history of compliance
with the rules.
IV. ORDERING CLAUSES
13. 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, ERF Wireless, Inc. IS LIABLE FOR
A MONETARY FORFEITURE in the amount of ten thousand four hundred
dollars ($10,400) for violations of Sections 17.51(b) and 17.57 of the
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. 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.
ERF Wireless will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to ERF Wireless,
Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S:S: 17.51(b), 17.57.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932540001
(Enf. Bur., Houston Office, March 27, 2009) ("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 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. 47 C.F.R.
The owner of an antenna structure is required to "report immediately by
telephone or telegraph to the
nearest Flight Service Station or office of the FAA any observed or
otherwise known extinguishment or
improper functioning of any top steady burning light or any flashing
obstruction light, regardless of its position on the antenna structure,
not corrected within 30 minutes." 47 C.F.R. S: 17.48.
See e.g., Syntax-Brillian Corporation, Forfeiture Order and Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 6323 (2008); AT&T Wireless
Services, Inc., Forfeiture Order, 17 FCC Rcd 21866 (2002); Seawest Yacht
Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4), 17.51(b),
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-1184
Federal Communications Commission DA 09-1184