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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Omaha Dirt and Wire LLC Owner of Antenna Structure No.
1027702 Omaha, NE ) ) ) ) ) ) File No.: EB-FIELDSCR-13-00010381 NAL/Acct.
No.: 201432560003 FRN: 0016289670
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 22, 2014 Released: January 22, 2014
By the District Director, Kansas City Office, South Central Region,
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Omaha Dirt and Wire LLC (ODW), owner of antenna structure 1027702
in Omaha, NE (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 tower as often as
necessary to maintain good visibility. We conclude that ODW is
apparently liable for a forfeiture in the amount of ten thousand
2. The Antenna Structure is 64.6 meters above ground in overall height
and is required to be painted.^ On August 1, 2013, an agent with the
Enforcement Bureau's Kansas City Office (Kansas City Office) inspected
the Antenna Structure at approximately 11 A.M. C.S.T. and observed
that the white paint was severely faded with large areas of rust
showing in all of the white bands and the aviation orange paint was
severely faded.^ The paint on the Antenna Structure had deteriorated
to such a degree that the structure's visibility from several hundred
feet was significantly impaired. On August 14, 2013, the Kansas City
Office issued a Notice of Violation (NOV) to ODW for, among other
things, failing to repaint the Antenna Structure.^ On September 13,
2013, ODW responded to the NOV, stating that the Antenna Structure had
been fully repainted.^ ODW stated that upon its own inspection prior
to the repainting, the "white band had many areas where dark color
(possibly rust or lack of paint) were showing through. . . . I will
agree with the agent that the Tower was certainly at, or possibly
past, the need for repainting. . . . I am not sure that the tower was
in violation, but, on close inspection, it certainly was close."^
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 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 day.^
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 states that "Antenna
structures requiring painting under this part shall be cleaned or
repainted as often as necessary to maintain good visibility." ^ ^ At
the time of inspection on August 1, 2013, the overall condition of the
paint on the Antenna Structure did not provide good visibility. The
agent noted, and ODW admitted, the presence of a large number of dark
areas in the white bands due to rust or missing paint. In addition,
the aviation orange sections of paint were severely faded. The
condition of the paint was so deteriorated that the agent concluded
the Antenna Structure had not been clearly visible for more than one
day, as a result of ODW's decision not to repaint the Antenna
Structure until after the agent's inspection. Based on the evidence
before us, we find that ODW 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 as often as
necessary to maintain good visibility.
B. 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 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 ODW is apparently liable for a total forfeiture in the
amount of $10,000.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Rules,
Omaha Dirt and Wire LLC is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of ten thousand dollars ($10,000) for
violations 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, Omaha Dirt
and Wire 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. Omaha Dirt and Wire LLC shall 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 making full payment over time 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,
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, Kansas City Office, 520 NE Colbern Rd., 2^nd Floor,
Lees Summit, MO, 64086, and include the NAL/Acct. No. referenced in
the caption. Omaha Dirt and Wire LLC also shall e-mail the written
response to SCR-Response@fcc.gov.
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 principles (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 Omaha Dirt and Wire LLC at P.O. Box
11060 Jackson, WY 83002 and to its counsel, Susan A. Marshall,
Fletcher, Heald and Hildreth, at 1300 North 17^th Street, 11^th Floor,
Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Ronald D. Ramage
Kansas City Office
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 1027702. 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 ground).
^ The agent photographed areas of the Antenna Structure showing
significant rust in the white bands and faded aviation orange paint using
a digital zoom camera and image stabilizer. (photographs on file in
^ Omaha Dirt and Wire LLC, Notice of Violation, NOV No. 201332560031
(Aug. 14, 2013).
^ Letter from Susan A. Marshall, Counsel for Omaha Dirt and Wire LLC, to
Ronald D. Ramage, District Director, Kansas City Office, South Central
Region, Enforcement Bureau (Sept. 13, 2013) (LOI Response). Agents from
the Kansas City Office confirmed that the Antenna Structure was repainted
by comparing photographs of the structure taken by Google Earth on March
27, 2012 and September 21, 2013. The paint on the more recent photograph
is exponentially more vivid than the paint on the previous photograph.
(photographs on file in EB-FIELDSCR-13-00010381).
^ LOI Response at 2.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (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
^ 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. SS 303(q), 503(b); 47 C.F.R. SS 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. SS 1.16, 1.80(f)(3).
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Federal Communications Commission DA 14-68
Federal Communications Commission DA 14-68