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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 )
ORDER ON REVIEW
Adopted: February 4, 2010 Released: February 5, 2010
By the Commission:
1. In this Order on Review ("Order on Review"), we deny the application
for review filed by Tidewater Communications LLC ("Tidewater"),
seeking review of the Enforcement Bureau's ("Bureau") Memorandum
Opinion and Order, which granted in part and denied in part
Tidewater's petition for reconsideration of a Forfeiture Order issued
October 20, 2006. We find that Tidewater has not provided grounds upon
which to overturn the Bureau's decision.
2. Section 17.51(a) states that all red obstruction lighting shall be
exhibited from sunset to sunrise unless otherwise specified. The
Forfeiture Order imposed a monetary forfeiture in the amount of
$10,000 for failure to exhibit obstruction lighting on antenna
structure # 1024387. In the Memorandum Opinion and Order, the
Enforcement Bureau reduced the forfeiture to $8,000 based on
Tidewater's good faith efforts to comply with the Rules.
3. In its Application for Review, Tidewater asserts that the Bureau
applied a precedent or policy that should be overturned. Specifically,
Tidewater claims that the Bureau's interpretation of what constitutes
a willful violation does not meet the legal standard and its policy of
holding licensees responsible for violations resulting from "mistakes"
or inadvertence is unlawful.
4. We disagree with Tidewater's interpretation of the facts and law in
this case. First, Tidewater seeks to defend its failure to light its
antenna structure by relying on its employee's use of the company's
light monitoring system. Specifically, the record shows that Tidewater
consciously installed a manual light monitoring system, which required
staff to call the system to obtain a light reading. It is undisputed
that Tidewater's employee called into the tower lighting system and
recorded lighting levels in the log, which indicated outages on June
3, 4, and 5, 2005. Similarly, it is undisputed that Tidewater's
employee did not contact her supervisor regarding the low recorded
lighting levels, which she had been instructed and periodically
reminded to do, because she thought the tower lights were functioning
properly. According to Tidewater, the employee believed that the
lights were functioning because she heard two messages from the manual
light monitoring system: "Tower lights on" and "No alerts pending."
Tidewater concludes that its failure to light its antenna structure
was a result of a mistaken employee's actions and was not willful.
5. Tidewater is incorrect that the action at issue does not fall within
the definition of "willful." To be willful, the violator must
consciously commit or omit certain actions and need not be aware that
such actions violate the Rules. In this case, Tidewater's employee
called into the manual tower lighting system and recorded the light
level in the log. She then listened to the system's recorded
announcement. At that point, she consciously and deliberately made a
determination that the lights were functioning, despite the low light
level, and chose not to contact her supervisor. That she came to a
faulty conclusion and acted accordingly does not mean that she acted
unintentionally or unaware; she consciously and deliberately failed to
act on the low lighting levels. Her failure to act led to the
continued outage of the antenna structure in violation of Section
17.51(a) of the Rules. Accordingly, we do not believe, as Tidewater
asserts, that the Bureau's conclusion that Tidewater's violation was
willful "would not be tolerated by a court." Moreover, even if this
were a "mistake," it could still be found willful; we find no error in
the Bureau's citation of Commission cases in support of its
proposition that a violator can be held liable for violations
resulting from mistakes.
6. As to the law, Tidewater claims that the Bureau improperly relied on
Eure Family Limited Partnership to support the well-established
principle that "licensees and other Commission regulatees are
responsible for the acts and omissions of their employees and
independent contractors." All licensees and regulatees that are not
sole proprietors rely upon employees and contractors to operate their
businesses and remain ultimately responsible for the actions of the
employees or contractors. To hold otherwise would allow licensees and
regulatees to delegate or contract away their responsibilities to
comply with the Rules. Tidewater states that Eure Family Limited
Partnership should not be cited as precedent, because the forfeiture
in that case was not paid or adjudicated against Eure Family Limited
Partnership, but was the subject of a voluntary settlement. Although
Eure Family Limited Partnership may not have paid the forfeiture, the
Commission did not reverse its decision. Thus, while Eure Family
Limited Partnership may not have admitted wrongdoing in the
settlement, we may rely upon the Commission's interpretations in the
forfeiture order and memorandum opinion and order when considering
7. Tidewater again requests that the forfeiture be reduced or canceled,
consistent with Vernon Broadcasting, Inc. The Bureau previously
distinguished the instant case from Vernon Broadcasting, Inc., on the
grounds that Tidewater did not instruct its employees on its lighting
procedures right before the June 2005 violation and did not regularly
inspect the tower lights. Tidewater asserts in its Application for
Review that although its last formal instruction on the lighting
procedures occurred in 2004, the chief engineer reviewed the operator
logs on a weekly basis and discussed issues with the operators
directly. According to the chief engineer, operators were aware of
this review process and were free to discuss questions with him at any
time. In addition, Tidewater states its chief engineer observed the
antenna structure on a regular basis.
8. We conclude that the instant case can be distinguished from Vernon
Broadcasting, Inc. Vernon Broadcasting violated Section 73.49 of the
Rules, which does not impose a daily observation requirement.
Additionally, the former Field Operations Bureau found that vandals
damaged the fence and that Vernon Broadcasting's actions did not
contribute to the violation, i.e., Vernon Broadcasting had not failed
to monitor the condition of the fence. Here, no intervening act
outside of the owner's control, like vandalism, led to the violation.
Thus, although Tidewater's chief engineer was unaware of the lighting
outage when the agent observed the outage, the violation at issue
stems from Tidewater's own employee's failure to act.
9. In further support of its request to reduce the forfeiture, Tidewater
cites for the first time U.S. v. Daniels. We find Daniels
inapposite. That case involved the repeated violation of a rule that
had been recently amended. Although irrelevant to whether a repeated
violation occurred, the Court found that the Defendant was not aware
of this new rule, had been complying in good faith with the
broadcasting hours permitted under the previous rule, and ceased
broadcasting immediately upon notification of the violation.
Accordingly, the Court found a reduction in the forfeiture appropriate
due to the "nature of the violations involved here, the lack of
complaints and the Defendant's good faith inadvertent mistakes." In
this case, however, Tidewater willfully violated a well-established
rule. Moreover, the Bureau already reduced the forfeiture due to
Tidewater's good faith efforts to comply with Rules, i.e., notifying
the Federal Aviation Administration ("FAA") after it became aware of
10. Finally, Tidewater again asserts that the Bureau erred in not granting
a reduction of its forfeiture based on its history of compliance.
Tidewater argues, pursuant to Section 504(c) of the Act, that the
facts underlying a notice of violation or unpaid forfeitures cannot be
used against it until they have been adjudicated or paid. We disagree.
11. The Commission interpreted Section 504(c) of the Act and found that:
The statute says that the issuance of an NAL shall not be used against a
person unless the forfeiture has been paid or the person is subject to a
final court order to pay. It does not say that the facts underlying prior
NALs shall not be used against a person. ... It seems readily apparent
that the Commission has authority to take into account, in assessing a
forfeiture, a history of violations by a party that had not been the basis
for prior NALs. That is, for example, if a licensee committed a minor
violation of a rule, were admonished for it and then committed the same
violation again, the Commission could take the first violation into
account in setting a forfeiture amount for the second violation. But,
under petitioners' interpretation, if the first violation had been a more
serious one that led to a forfeiture, the Commission could not take into
account the first violation in setting the forfeiture amount for the
second violation. This would be illogical, to say the least.
The facts establish a prior violation cognizable under our precedent. In
2001, there was a light outage on Tidewater's antenna structure lasting
more than 30 minutes that was not immediately reported to the FAA.
Accordingly, a Notice of Violation was issued to Tidewater on November 16,
2001. Tidewater's response to the Notice of Violation did not deny that
the light outage had occurred or that it had not immediately contacted the
FAA. Rather, Tidewater admitted that its automatic light system
malfunctioned and did not alert it to the light outage. After the release
of the Notice of Violation, the Bureau issued a notice of apparent
liability for forfeiture to Tidewater based on the 2001 outage. The Bureau
subsequently cancelled the monetary forfeiture in light of downward
adjustments for Tidewater's history of compliance and good faith efforts
to comply with the Rules. The Notice of Violation was not cancelled, and
the underlying facts were properly considered by the Bureau in denying
Tidewater's request in this case to reduce its forfeiture based on a
history of compliance with the Rules.
12. Upon review of the Application for Review and the entire record
herein, we conclude that Tidewater has failed to demonstrate that the
Bureau erred in imposing a forfeiture for violation of Section
17.51(a) of the Rules. The Bureau properly decided the matters before
it, and we uphold its decision to impose a $8,000 forfeiture in its
Forfeiture Order and Memorandum Opinion and Order.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED, pursuant to Section 1.115(g) of the
Commission's Rules, that the Application for Review filed by Tidewater
Communications LLC IS DENIED and the Memorandum Opinion and Order IS
14. Payment of the $8,000 shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order
on Review. 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.
Tidewater will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
15. 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
Marlene H. Dortch
See 47 C.F.R. S: 1.115.
Tidewater Communications LLC, Memorandum Opinion and Order, 21 FCC Rcd
14589 (2006) ("Memorandum Opinion and Order").
Tidewater Communications LLC, Forfeiture Order, 21 FCC Rcd. 11749 (Enf.
Bur. South Central Region 2006) ("Forfeiture Order").
47 C.F.R. S: 17.51.
Forfeiture Order at 11752.
Memorandum Opinion and Order at 14592.
Tidewater's Application for Review at 8-9, citing Liability of Mid-West
Radio-Television, Inc., FCC 63-1024 (1963). Midwest Radio-Television was
cited in Hubbard Broadcasting, Inc., a copy of which was attached to
Primetime 24 Joint Venture v. Telcable Nacional, 1990 U.S. Dist. Lexis
Although no separate forfeiture was assessed, we note that Tidewater's use
of a manual light monitoring system does not comply with Section 17.47(a)
of the Rules, which requires either daily visual observation of the
antenna structure's lights or an automatic indicator designed to register
light failure or installation of an automatic alarm system designed to
detect light failure. See 47 C.F.R. S: 17.47(a). Instead, Tidewater
consciously chose to use a noncompliant monitoring system that apparently
contributed to the outage on subsequent days in June 2005.
These lighting levels were 0.47%, 0.67%, and 0.037% for June 3, 4, and 5,
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).
Tidewater's Application for Review at 9.
Memorandum Opinion and Order, 21 FCC Rcd at 14590-14591 at para. 6, citing
North Country Repeaters, 19 FCC Rcd 22139 (Enf. Bur. 2004); PBJ
Communications of Virginia, Inc., 7 FCC Rcd 2088 (1988); Standard
Communications Corp., 1 FCC Rcd 358 (1986); and Triad Broadcasting Co.,
Inc. 96 FCC 2d (1984).
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863,-64, para. 7 (2002); see also 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).
The voluntary settlement occurred in a federal court and pertained solely
to the collection of the forfeiture. This settlement occurred in lieu of a
trial de novo and did not overturn the Commission's final order. As part
of the settlement, Eure Family Limited Partnership did not admit or deny
any violation set forth in the Forfeiture Order or Notice of Apparent
Liability. Tidewater's counsel also served as counsel to Eure Family
Limited Partnership. See Tidewater Application for Review, page 8.
Eure Family Limited Partnership, however, made a voluntary contribution to
the United States Treasury.
Cf. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 29
(1994) ("[M]ootness by reason of settlement does not justify vacatur of a
judgment under review. This is not to say that vacatur can never be
granted when mootness is produced in that fashion. As we have described,
the determination is an equitable one, and exceptional circumstances may
conceivably counsel in favor of such a course"). The Memorandum Opinion
and Order in Eure Family Partnership is a final order of the Commission.
Despite the voluntary settlement, no exceptional circumstances exist that
would prompt the Commission to vacate or overturn that decision.
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).
See Memorandum, Opinion and Order, para. 6.
See Declaration of Donald Crowder, page 1, attached to Tidewater
Application for Review.
Tidewater's employee logged a light outage on June 3, 2005, but failed to
contact the chief engineer. The Commission agent observed the light outage
on June 4, 2005.
U.S. v. Daniels, 418 F. Supp. 1074 (D.S.D. 1976).
See Daniels at 1080.
Daniels at 1080.
See Memorandum, Opinion and Order, para. 7.
47 U.S.C. S: 504(c).
Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, Memorandum Opinion and
Order, 15 FCC Rcd 303 (1999).
See Tidewater Communications LLC, Memorandum Opinion and Order, 18 FCC Rcd
5524 (Enf. Bur. 2003) ("Memorandum Opinion and Order").
47 C.F.R. S: 1.115(g).
47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
Federal Communications Commission FCC 10-28
Federal Communications Commission FCC 10-28