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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Allegiance Communications, LLC File No.: EB-FIELDSCR-12-00001749
Owner of Antenna Structure NAL/Acct. No.: 201232500006
No.: 1020734 )
McAlester, Oklahoma )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 25, 2012 Released: September 25, 2012
By the District Director, Dallas Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Allegiance Communications, LLC (Allegiance Communications), owner
of antenna structure number 1020734, in McAlester, Oklahoma (the
Antenna Structure), apparently willfully and repeatedly violated
Section 303(q) of the Communications Act of 1934, as amended (Act),
and Section 17.50 of the Commission's rules (Rules) by failing to
clean or repaint the Antenna Structure as often as necessary to
maintain good visibility. We conclude that Allegiance Communications
is apparently liable for a forfeiture in the amount of ten thousand
2. The Antenna Structure, which Allegiance Communications acquired in
2004, is 85.6 meters in overall height above ground and is required to
be painted and lighted. On February 28, 2012, an agent from the Dallas
Office of the Enforcement Bureau (Dallas Office) inspected the Antenna
Structure and observed that the structure's paint was extremely faded,
rusted, and washed away in multiple areas, leaving the metal exposed
and reducing the structure's visibility. Further, an agent from the
Dallas Office was unable to distinguish the alternating bands of paint
on the Antenna Structure from a quarter of a mile from the Antenna
Structure. When asked on June 5, 2012, an Allegiance Communications
employee stated over the telephone that he was unable to determine
when the Antenna Structure had last been painted. On August 30, 2012,
Allegiance Communications stated that it had repainted the Antenna
Structure on August 24, 2012.
3. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
A. Failure to Maintain the Antenna Structure's Paint to Ensure Good
4. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Section 17.50 of the Rules requires that antenna
structures be cleaned or repainted as often as necessary to maintain
good visibility. On February 28, 2012, an agent from the Dallas Office
observed that the paint on the Antenna Structure was not in a
condition that provided good visibility. The paint on the Antenna
Structure was extremely faded, rusted, and washed away in multiple
areas. Specifically, the agent observed that the condition of the
paint, at the time of the inspection, was so deteriorated that the
agent concluded the Antenna Structure was not clearly visible for more
than one day. Thus, based on the evidence before us, we find that
Allegiance Communications apparently willfully and repeatedly violated
Section 303(q) of the Act and Section 17.50 of the Rules by failing to
clean and repaint the Antenna Structure in order to maintain good
A. Proposed Forfeiture
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to comply
with prescribed tower marking is $10,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Allegiance Communications is apparently liable for a forfeiture
in the amount of $10,000.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Allegiance
Communications, LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
violation of Section 303(q) of the Act and Section 17.50 of the
7. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Allegiance Communications, LLC SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
8. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Allegiance Communications, LLC will also
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
9. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
10. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Dallas Office, 9330 LBJ Freeway, Suite 1170, Dallas,
TX 75243 and include the NAL/Acct. No. referenced in the caption.
Allegiance Communications, LLC also shall email the written response
11. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
12. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and First Class Mail, to Allegiance Communications, LLC at
1819 Airport DR., P.O. Box 1491, Shawnee, OK 74804.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
South Central Region
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.50.
See Antenna Structure Registration database for antenna structure number
1020734. See also 47 C.F.R. S: 17.21(a) (requiring antenna structures to
be painted and lighted when they exceed 60.96 meters in height above
According to the Antenna Structure Registration database, antenna
structure number 1020734 must be painted consistent with FCC Paragraphs 1,
3, 4, 13, and 21. FCC Paragraph 1 requires antenna structures to be
painted throughout their height with alternate bands of aviation surface
orange and white. The width of the bands shall be equal and approximately
one-seventh the height of the structure, provided however, that the bands
shall not be more than 100 feet nor less than 1.5 feet in width. See FCC
Forms 715/715A, paragraphs 1, 3, 12 and 21.
See email from Greg Harrison, Allegiance Communications, LLC, to the
Dallas Office (Aug. 30, 2012, 10:08 A.M.). Three photographs of the
repainted Antenna Structure were attached to the email.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (1991),
recons. denied, 7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362, para. 9.
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.50.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 303(q), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-1510
Federal Communications Commission DA 12-1510