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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No.: EB-11-DL-0071
Mobile Phone of Texas, Inc.
) NAL/Acct. No.: 201232500001
Owner of Antenna Structure # 1057231
) FRN: 0001667401
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: January 18, 2012 Released: January 18, 2012
By the District Director, Dallas Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Mobile Phone of Texas, Inc., owner of antenna structure
number 1057231, in Vernon, Texas (the Antenna Structure), apparently
willfully and repeatedly violated 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
Mobile Phone of Texas, Inc. is apparently liable for a forfeiture in
the amount of ten thousand dollars ($10,000). In addition, we direct
Mobile Phone of Texas, Inc. to submit no later than thirty (30)
calendar days from the date of this NAL a statement signed under
penalty of perjury stating that the Antenna Structure has been cleaned
2. The Antenna Structure is 139.3 meters in overall height above ground
and is required to be painted and lighted. On August 17, 2011, agents
from the Dallas Office of the Enforcement Bureau (Dallas Office)
inspected the Antenna Structure and observed that the structure's
paint was scraped and pealing in several areas, leaving the metal
exposed and reducing the structure's visibility. The agents also
observed numerous unpainted black coaxial cables covering the Antenna
Structure, which further reduced the visibility of the Antenna
Structure's paint. Agents from the Dallas Office were unable to
distinguish the alternating bands of paint on the Antenna Structure
from a distance of 360 feet, primarily because of the unpainted black
3. Section 503(b) of the Communications Act of 1934, as amended (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 section
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 day.
A. Failure to Maintain the Antenna Structure's Paint to Ensure Good
4. Section 17.50 of the Rules requires that antenna structures be cleaned
or repainted as often as necessary to maintain good visibility. On
August 17, 2011, agents 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 scraped and pealing
in several areas and was obstructed by unpainted black coaxial cables
covering the Antenna Structure. In order to maintain good visibility,
the coaxial cables must be painted. Given the condition of the paint
and the coaxial cables, the agents concluded that the Antenna
Structure was not clearly visible for more than one day. Based on the
evidence before us, we find that Mobile Phone of Texas, Inc.
apparently willfully and repeatedly violated section 17.50 of the
Rules by failing to clean or repaint the Antenna Structure in order to
maintain good visibility.
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 painting of the 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 Mobile Phone of Texas, Inc. is
apparently liable for a forfeiture in the amount of $10,000.
6. We direct Mobile Phone of Texas, Inc., to submit a written statement,
pursuant to section 1.16 of the Rules, signed under penalty of perjury
by an officer or director of Mobile Phone of Texas, Inc., stating that
the Antenna Structure and the coaxial cables have been repainted to
maintain good visibility of the structure. If the Antenna Structure
has not yet been cleaned and repainted, we direct Mobile Phone of
Texas, Inc., to provide a timetable for when the work will be
completed. We also direct Mobile Phone of Texas, Inc. to describe the
procedures it has implemented to ensure the Antenna Structure retains
good visibility. This statement must be provided to the Dallas Office
at the address listed in paragraph 11 within thirty (30) calendar days
of the release date of this NAL.
IV. ORDERING CLAUSES
7. 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, Mobile Phone of
Texas, Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
violation of section 17.50 of the Commission's rules.
8. 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 its Notice of Apparent Liability for Forfeiture and Order,
Mobile Phone of Texas, Inc., SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
9. IT IS FURTHER ORDERED that Mobile Phone of Texas, Inc. SHALL SUBMIT a
statement as described in paragraph 6 to the Dallas Office within
thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order.
10. 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 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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Mobile Phone of Texas,
Inc. will also send electronic notification on the date said payment
is made to SCR-Response@fcc.gov.
11. 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 1.80(f)(3) and 1.16 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.
Mobile Phone of Texas, Inc. also shall email the written response to
12. 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
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to Mobile Phone of Texas, Inc. at
P.O. Box 2247, Wichita Falls, TX 76307.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
South Central Region
47 C.F.R. S: 17.50.
See Antenna Structure Registration database for antenna structure number
1057231. 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 1057231 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 must 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.
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 [A]ct
(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 (1991), recon. denied,
7 FCC Rcd 3454.
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 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. at 1362.
47 C.F.R. S: 17.50.
The term "antenna structure" includes the radiating and/or receive system,
its supporting structures, and any appurtenances mounted thereon. 47
C.F.R. S: 17.2(a). Thus, "any cables appurtenant to the tower must also be
painted in a manner which ensures the visibility of the underlying tower."
Crown Communication, Inc., Forfeiture Order, 19 FCC Rcd 19917, 19919 (Enf.
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"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
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 12-56
Federal Communications Commission DA 12-56