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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Forever of PA, Inc. File No: EB-06-BF-024
Antenna Structure Registrant NAL/Acct. No.: 200732280002
ASR # 1027115 FRN: 0006161855
MEMORANDUM OPINION AND ORDER
Adopted: November 21, 2011 Released: November 22, 2011
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, issued pursuant to section 405
of the Communications Act of 1934, as amended ("Act"), and section
1.106 of the Commission's rules ("Rules"), we deny in part and grant
in part a Petition for Reconsideration ("Petition") filed by Forever
of PA, Inc. ("Forever"). The Petition seeks reconsideration of a
Forfeiture Order that imposed a monetary forfeiture of $10,000 against
Forever for willfully violating sections 17.47, 17.48, and 17.51(a) of
the Rules by failing to comply with the antenna structure lighting,
monitoring, and reporting requirements specified for antenna structure
# 1027115. For the reasons set forth below, we grant in part and deny
in part the Petition and reduce the forfeiture to $8,000.
2. Forever is the registrant of antenna structure # 1027115 (the "Antenna
Structure"), and is subject to the Commission's Part 17 rules which
require, inter alia, daily observation of obstruction lighting or an
automatic alert system that detects and reports any failure of the
lights, notification of extinguishment or improperly functioning
lights, and exhibition of obstruction lighting from sunset to sundown.
In February of 2006, the Enforcement Bureau's Buffalo Office ("Buffalo
Office") received a report of a light outage on the Antenna Structure,
and determined that no Notice to Airmen ("NOTAM") had been issued.
During an inspection of the Antenna Structure on February 24, 2006, an
FCC agent determined that all of the tower lights were functioning
except for the top beacon light.
3. The Buffalo Office subsequently issued an NAL proposing a forfeiture
in the amount of $10,000 against Forever for "apparently willfully
violat[ing] [s]ections 17.47, 17.48, and 17.51 of the Commission's
[r]ules by failing to comply with the antenna structure lighting,
monitoring, and reporting requirements specified" for the Antenna
Structure. Forever responded to the NAL on March 13, 2007. In its
Response, Forever did not dispute that the top red beacon was unlit or
that it did not notify the FAA of the light outage. Rather, Forever
argued (i) that it was unaware of the monitoring system's limitations
until the FCC agent's inspection, and thus its actions were not
willful, and (ii) that it took corrective actions within days after
the FCC's inspection. Moreover, Forever's Chief Operator submitted a
declaration in response to the NAL asserting that he had not, as the
FCC agent claimed, stated during the inspection that he knew the
tower's monitoring system was not capable of detecting individual
light outages. The Regional Director for the Northeast Region of the
Enforcement Bureau ("Region") considered and rejected Forever's
arguments in the Forfeiture Order, and held that Forever willfully
violated sections 17.47, 17.48, and 17.51(a) of the Rules by (1)
failing to properly maintain the top red beacon on the Antenna
Structure, (2) failing to report to the FAA the outage of the top red
beacon, and (3) failing to ensure that a proper antenna structure
monitoring system was installed.
4. Forever's Petition largely repeats the arguments raised in its
Response. Challenging the Forfeiture Order's finding that the
violations were willful, Forever again seeks reconsideration and
cancellation or reduction of the forfeiture, claiming that it was not
aware of the monitoring system's limitations until notified by the FCC
agent. Forever also seeks a reduction or cancellation of the
forfeiture based on its history of compliance with the Rules.
5. Reconsideration is appropriate only where the petitioner shows a
material error or omission in the original order or raises additional
facts not known or existing until after the petitioner's last
opportunity to present such matters. A petition that simply repeats
arguments previously considered and rejected will be denied. Forever
has failed to either demonstrate error or to present new facts or
changed circumstances, as required. In fact, Forever again raises the
very same argument already considered and rejected in the Forfeiture
Order: that the violation was not willful because Forever was unaware
of the monitoring system's deficiencies. We therefore deny the
Petition to the extent it again challenges the Region's finding of
willfulness, but we take the opportunity below to further respond to
Forever's claims regarding its knowledge of the monitoring system's
limitations and its relation to our willfulness finding. We also
address Forever's newly raised assertion of history of compliance.
6. As the Region found in the Forfeiture Order, even if it were to accept
that Forever was not aware of the monitoring system's limitations, the
violation was willful. The 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 a rule. Because Forever knowingly operated the
monitoring system, the violation was willful. In sum, we find that it
was Forever's omission that resulted in its willful operation of a
monitoring system that could not detect single light outages.
Accordingly, we find no basis for reconsideration and therefore affirm
the finding in the Forfeiture Order that Forever willfully violated
sections 17.47, 17.48, and 17.51(a) of the Rules.
7. Finally, Forever contends that a reduction or cancellation of the
forfeiture amount is warranted based on its history of compliance with
the Commission's rules. We have reviewed our records and we agree. We
therefore reduce the forfeiture amount from $10,000 to $8,000.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED, pursuant to section 405 of the Act and
section 1.106 of the Commission's rules, that the Petition for
Reconsideration filed on March 18, 2008 by Forever of PA, Inc., IS
GRANTED IN PART AND DENIED IN PART.
9. IT IS FURTHER ORDERED that the Forfeiture Order IS AFFIRMED IN PART
AND MODIFIED IN PART and that pursuant to section 503(b) of the Act,
Forever of PA, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount
of $8,000 for willful violations of sections 17.47, 17.48, and
17.51(a) of the Commission's Rules.
10. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Rules within thirty (30) days of the release of
this Memorandum Opinion and Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for enforcement pursuant to section 504(a) of
the Act. Payment of the forfeiture must be made by credit card, check,
or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Account
Number and FRN 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.
Forever of PA, Inc. shall also send electronic notification to
NER-Response@fcc.gov on the date said payment is made.
11. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order
shall be sent, by both regular mail and Certified Mail/Return Receipt
Requested, to Forever of PA, Inc. at 6400 Sheridan Drive, Suite 140,
Box #6, Williamsville, New York, and to its counsel, Allan G.
Moskowitz, at Kaye Scholer LLP, 901 15th Street, N.W., Washington,
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S:1.106.
Forever of PA, Inc., Petition for Reconsideration (filed March 18, 2008).
47 C.F.R. S:S: 17.47, 17.48, 17.51(a).
See Forever of PA, Inc., Forfeiture Order, 23 FCC Rcd 2605 (Enf. Bur.,
Northeast Region 2008) ("Forfeiture Order"), aff'g, Forever of PA, Notice
of Apparent Liability for Forfeiture, NAL/Acct. No. 200732280002 (Enf.
Bur., Buffalo Office, rel. Feb. 22, 2007) ("NAL"). A comprehensive
recitation of the facts and history of this case can be found in the NAL
and the Forfeiture Order, which are incorporated here by reference.
47 C.F.R. S:S: 17.47, 17.48, 17.51(a).
A pilot originally reported the light outage to the Federal Aviation
Administration ("FAA"). NAL at 1.
Id. at 1-2.
Id. at 1.
Letter from Lynn A. Deppen, Member, Forever of PA, Inc., to David
Viglione, Resident Agent, Buffalo Office, Northeast Region, Enforcement
Bureau, Federal Communications Commission, dated March 13, 2007
Id. at Attachment 7.
See Forfeiture Order, 23 FCC Rcd at 2606-2607. The Forfeiture Order
declined to rely on the Chief Operator's declaration in response to the
NAL, but rather, the Region relied on the contemporaneous handwritten
notes of the FCC agent, which reflect the Chief Operator's statement
during the inspection that he knew about the monitoring system's
Petition at 1-6.
Id. at 2.
Id. at 4-5.
See WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964),
aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. 1965), cert.
denied, 383 U.S. 967 (1966); 47 C.F.R. S: 1.106(c).
See Infinity Broadcasting Operations, Inc., Memorandum Opinion and Order,
19 FCC Rcd 4216 (2004); Bennett Gilbert Gaines, Memorandum Opinion and
Order, 8 FCC Rcd 3986 (Rev. Bd. 1993).
See Petition at 2-4.
See Forfeiture Order, 23 FCC Rcd at 2606-2607, P:P: 5-6 (rejecting
Forever's claim that the violation was not willful).
Id. In any event, we disagree with Forever's claim that, despite the FCC
agent's contemporaneous handwritten notes from the inspection, it "makes
no sense" that the Chief Operator would have stated that he was aware of
the monitoring system's deficiencies given "the station's experience with
the monitoring equipment." See Petition at 2. In making such a claim,
Forever relies on the fact that the tower never experienced the outage of
an individual light, but rather only experienced complete tower light
outages, at which time the monitoring system properly notified the Chief
Operator. Id. at 3. Forever contends, therefore, that the Chief Operator
could not have known about the monitoring system's deficiencies with
regard to individual light outages. Id. at 3-4. The Chief Operator,
however, did not tell the agent that he knew about the deficiency based on
his experience with the tower's actual outages, but rather that he knew
that the monitoring system, as installed, was incapable of detecting
individual light outages and that a modification was required for the
system to have such capability. Thus, the station's past experience with
the monitoring system provides no basis for disregarding the
contemporaneous handwritten notes of our agent, which reflect the Chief
Operator's statement that he knew of the monitoring system's deficiencies.
Forfeiture Order, 23 FCC Rcd at 2607, P: 6. Furthermore, if Forever had
adequately complied with section 17.47(b) of the Rules, which requires
tower owners to "inspect at intervals not to exceed 3 months all automatic
or mechanical control devices, indicators, and alarm systems associated
with the antenna structure lighting . . . ," Forever would have discovered
that its monitoring system was incapable of detecting single light
Petition at 4.
47 U.S.C. S: 405; 47 C.F.R. S: 1.106.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 17.47, 17.48, 17.51(a).
47 U.S.C. S: 504(a).
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Federal Communications Commission DA 11-1921
Federal Communications Commission DA 11-1921