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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Verizon Wireless (VAW) LLC File No. EB-09-AT-0030
Owner of an Antenna Structure in NAL/Acct. No. 200932480002
Hartwell, GA )
Alpharetta, GA )
Adopted: January 7, 2010 Released: January 11, 2010
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of thirteen thousand dollars ($13,000) to Verizon Wireless
(VAW) LLC ("Verizon"), owner of an antenna structure located at 2128
Reed Creek Road, in Hartwell, GA for willful and repeated violation of
Sections 17.4(a) and 17.21(a) of the Commission's Rules ("Rules"). The
noted violations involve Verizon's failure to register its antenna
structure with the Commission and failure to paint and light its
2. On August 18, 2009, in response to a complaint of an unlit tower,
agents from the Commission's Atlanta Field Office of the Enforcement
Bureau ("Atlanta Office") inspected an antenna structure located at
2128 Reed Creek Road in Hartwell, GA. Prior to inspecting the tower,
the agents confirmed that no antenna structure located at that address
was registered in the Commission's Antenna Structure Registration
("ASR") database. The agents determined that the antenna structure
exceeded 200 feet in height. The agents observed that the structure
did not have any obstruction marking or lighting and that there was no
ASR number posted at the structure base. The agents contacted the land
owner, who identified the tower owner as Verizon.
3. On August 19, 2009, an agent from the Atlanta Office contacted Verizon
regarding the antenna structure. Verizon measured the antenna
structure and confirmed that the overall height of the antenna
structure was 205 feet above ground level. That same day Verizon
reduced the antenna structure height to 199 feet above ground level by
removing the lightning rod from the top of the antenna structure.
4. On August 20, 2009, Verizon confirmed that the antenna structure was
constructed on or about March 2004 and that Verizon had owned the
tower since its construction. Verizon also stated that it filed for a
determination of no hazard from the Federal Aviation Administration
("FAA") for a planned addition of a lightning rod to the tower, which
would increase its height to 206 feet above ground level.
5. On September 18, 2009, the Atlanta Office issued a Notice of Apparent
Liability for Forfeiture to Verizon in the amount of thirteen thousand
dollars ($13,000), for the apparent willful and repeated violation of
Sections 17.4(a) and 17.21(a) of the Rules. Verizon submitted a
response to the NAL requesting reduction of the proposed forfeiture.
6. The proposed 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, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement"). In examining Verizon'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
7. Section 17.4(a) of the Rules requires that effective July 1, 1996, the
owner of any proposed or existing antenna structure that requires
notice of proposed construction to the FAA register the structure with
the Commission. Section 17.7(a) of the Rules requires that
notification to the FAA must be made for any construction or
alteration of an antenna structure more than 200 feet in height above
ground level. Verizon's antenna structure in Hartwell, GA required
notice of proposed construction to the FAA, because it was more than
200 feet in height. Because it was constructed after 1996, Verizon was
required to register the structure with the Commission. There is no
evidence that Verizon ever registered the structure with the
Commission prior to August 19, 2009. In response to the NAL, Verizon
does not dispute any of these facts.
8. Section 17.21(a) of the Rules requires that antenna structures be
painted and lighted when they exceed 60.9 meters (200 ft.) in height
above ground level or they require special aeronautical study. Section
17.6 of the Rules states that the antenna structure owner is
responsible for maintaining the painting and lighting of an antenna
structure. Prior to August 19, 2009, Verizon's antenna structure
exceeded 200 feet above ground level and thus was required to be
painted and lighted. Verizon, as the owner of the antenna structure,
is responsible for the structure obstruction marking and lighting. On
August 18, 2009, Verizon's antenna structure was not painted or
lighted, and there is no evidence that the structure had ever been
painted or lighted since its construction in 2004. In response to the
NAL, Verizon does not deny any of these facts.
9. Based on the evidence before us, we find that Verizon willfully and
repeatedly violated Sections 17.4(a) and 17.21(a) of the Rules by
failing to register its antenna structure in Hartwell, GA from the
date the structure was constructed in March 2004 until August 18, 2009
and failing to paint or light its antenna structure in Hartwell, GA
from the date the structure was constructed in March 2004 until August
10. In its response to the NAL, Verizon requests a reduction of the
proposed forfeiture, because it asserts its violation was minor.
Verizon notes that it corrected the violation the same day that it was
notified of the violation. Moreover, it explains that its tower was
not registered or lit because its construction contractor did not note
the lightning rod on the final plans for the antenna structure. The
construction contractor only noted the lightning rod in the equipment
list in the close out package. Because the construction engineer
responsible for the project only consulted the final plans for the
structure, Verizon mistakenly thought that its antenna structure was
less than 200 feet and did not require registration or lighting.
Verizon has since instituted a comprehensive review of all of its
antenna structures which are not registered or lit and which are
between 190 and 200 feet in height to ensure that it not repeat this
11. We do not agree that Verizon's violation was minor. Regardless of the
reason, an antenna structure over 200 feet in height remained
unregistered, unlit and unpainted for several years, thereby posing a
serious hazard to air navigation. 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. Moreover, the Commission has long held that corrective
action taken to come into compliance with the Rules after an
inspection is expected, and such corrective action does not nullify or
mitigate any prior forfeitures or violations. Accordingly, we find no
reason to reduce the proposed forfeiture.
12. Finally, Verizon requests a reduction based on its overall history of
compliance with the rules. "While Verizon Wireless has had a small
number of violations noted previously by the Commission, considering
the vast number of towers and antenna sites it maintains, its history
of overall compliance with FCC rules is good." In making this claim,
Verizon cited WSJM Inc., in which the Enforcement Bureau reduced a
forfeiture based on the violator's "record of compliance." In that
case, WSJM, Inc. received a Notice of Violation prior to the issuance
of the Notice of Apparent Liability. However, the facts underlying the
Notice of Violation and Notice of Apparent Liability stemmed from the
same inspection. Thus, WSJM had not received any written violations
before the inspection underlying the subsequently reduced forfeiture.
In this case, Verizon has received at least one notice of apparent
liability and four notices of violations since 2002, all completely
unrelated to the antenna structure in question. Accordingly, we do not
find Verizon qualifies for a reduction based on its history of
compliance with the rules.
13. We have examined Verizon'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 find no basis for
cancellation or reduction of the $13,000 forfeiture proposed for these
IV. ORDERING CLAUSES
14. 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, Verizon Wireless (VAW) LLC IS
LIABLE FOR A MONETARY FORFEITURE in the amount of thirteen thousand
dollars ($13,000) for violations of Sections 17.4 and 17.21 of the
15. 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.
Verizon will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Verizon Wireless
(VAW) LLC at its address of record and to its Deputy General Counsel,
John T. Scott, III, Verizon Wireless, 1300 I Street, NW, Suite
400-West, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S:17.2 (a) "The term antenna structure includes the radiating
and/or receive system, its supporting structures and any appurtenances
47 C.F.R. S:S: 17.4(a), 17.21(a).
See 47 C.F.R. S: 17.4(g).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932480002
(Enf. Bur., Atlanta Office, September 18, 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).
47 C.F.R. S: 17.4(a).
47 C.F.R. S: 17.7(a).
But see 47 C.F.R. S: 17.14 (listing exemptions from the notification to
FAA requirement for structures near natural terrain of equal or greater
height and structures or objects approved by the Administrator of the FAA
for use as navigational aids). None of the exemptions listed in Section
17.14 of the Rules apply to the structure in Hartwell, GA.
47 C.F.R. S: 17.21(a).
47 C.F.R. S: 17.6.
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', when used with reference to the
commission or omission of any act, 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 AT&T Wireless Services Inc., Forfeiture Order, 17 FCC Rcd 21866
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). However, we note that we are not required to find
the violations are willful to impose a forfeiture, because the instant
violations were repeated.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994), Rama
Communications, Inc., Memorandum Opinion and Order, 24 FCC Rcd 4981 (Enf.
Bur. 2009), Bethune-Cookman College, Inc.. Forfeiture Order, 24 FCC Rcd
4513 (South Central Region 2009).
Response to NAL at 4.
WSJM, Inc., Forfeiture Order, 19 FCC Rcd 17777, 177780 (EB 2004).
Response to NAL at 4.
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4), 17.4,
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-25
Federal Communications Commission DA 10-25