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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
American Tower Corporation ) File No. EB-00-TP-132
)
Boston, MA ) NAL/Acct.No. 200132700004
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 11, 2001 Released:
January 16, 2001
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find American Tower Corporation (``ATC''), Boston, MA, apparently
liable for a forfeiture in the amount of two hundred twelve
thousand dollars ($212,000) for 36 violations of Section 17.4(a),
Section 17.4(a)(1), Section 17.4(g), Section 17.45, and Section
17.57, of the Commission's rules, relating to construction,
marking and lighting of antenna structures.1 Respectively, these
sections require that radio antenna structure owners properly
register existing antenna structures, register an antenna
structure prior to construction, post antenna structure
registration numbers, mark and light antenna structures, and
report antenna ownership changes. We find that during the period
of March 1, 2000 through November 9, 2000 ATC failed to comply
with each of these requirements in one or more instances. A list
of the specific violations is attached. See Attachment 1.
II. BACKGROUND
2. The Commission's antenna structure painting, lighting
and registration requirements operate in concert with Federal
Aviation Administration (``FAA'') regulations to ensure that
antenna structures do not present hazards to air navigation.
Generally, our rules require that antenna structures located
close to airports or that are greater than 200 feet in height
comply with painting and lighting specifications designed to
ensure air safety. We require antenna structure owners to
register structures with the Commission and post registration
numbers near the base of structures to allow for easy contact if
problems arise. The Commission's Rules requiring antenna
structure registration for all antenna structures that may pose a
hazard to air navigation have been in effect since July 1, 1998.2
We have repeatedly advised antenna structure owners that all
existing, unregistered antenna structures subject to our rules
must be registered immediately or the owners could face a
monetary forfeiture or other enforcement action.3
3. Because of the substantial public safety issues
involved, we further require antenna structure owners to monitor
lights daily or have automatic alarm systems installed to ensure
lights function properly. Finally, antenna structure owners are
required immediately to notify the FAA when major antenna
structure lights are inoperative and can not be repaired within
30 minutes. The FAA then issues a Notice to Airmen (``NOTAM'')
for a period of 15 days advising aircraft that there is an
antenna structure at a specific location with a temporary light
outage.
4. Commission field agents routinely inspect antenna
structures to determine compliance with antenna structure
painting and lighting requirements and respond to complaints of
unlit towers. The FAA also routinely notifies Commission field
offices when owners fail to either report that lights have been
repaired within 15 days or request that a NOTAM be extended. In
the course of these routine inspections and investigations of FAA
reports our field agents uncovered a significant number of
violations of the Commission's antenna structure painting,
lighting and registration requirements by American Tower
Corporation.
5. Attachment 1 summarizes 36 instances between March 1,
2000 and November 10, 2000 where Commission field agents found
violations by ATC in the course of either following up on reports
from the FAA, during random inspections, or, in one case, in
response to a report of an unlit tower. In each of these cases
Notices of Violation were previously mailed to ATC listing more
specific violation details and providing ATC with an opportunity
to respond. The attachment lists the FCC case number, date of
violation and rules violated. In 11 cases, ATC did not respond
to the Notices of Violation during the time period provided.4 On
July 26, 2000, agents from the Commission's Tampa and Atlanta
Field Offices met with representatives of ATC to discuss, among
other issues, ATC's failure to file the required ownership
changes for acquired antenna structures with the Commission.
ATC's representatives indicated that they would do a ``sweep'' of
purchased antenna structures to ensure that the correct ownership
information was on record with the Commission.
III. DISCUSSION
6. Based on the evidence before us, we find that American
Tower Corporation apparently willfully and repeatedly5 violated
Section 17.4(a), Section 17.4(a)(1), Section 17.4(g), Section
17.45, and Section 17.57 of the Commission's Rules6 by its
failure to comply with the Commission's Rules regarding the
construction, marking and lighting of antenna structures.
7. Section 503(b) of the Communications Act authorizes
the Commission to assess a forfeiture of up to $11,000 for each
violation of the Act or of any rule, regulation or order issued
by the Commission under the Act by a non-common carrier or other
entity not specifically designated in Section 503 of the Act.7
In exercising such authority, we are to take into account ``the
nature, circumstances, extent, and gravity of the violation and,
with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other matters
as justice may require.''8
8. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement'')9, the base forfeiture amount is $10,000 for ATC's
lighting violation. The base forfeiture amount is $3,000 for each
of ATC's 26 instances of failure to file required forms or
information (i.e. failure to file an application for antenna
structure registration (two violations) and failure to notify the
Commission of a change in ownership of an antenna structure (24
violations)).
9. The Commission's Forfeiture Policy Statement does not
establish a base forfeiture amount for violating the Commission's
rule requiring posting of antenna structure registration numbers.
Therefore, we must determine what an appropriate amount should be
for these violations.10 We conclude that the appropriate amount
for this violation is $2,000. Posting the registration is an
informational requirement similar to registration. The purpose of
the posting requirement is to allow for expedited identification
of and contact with the antenna structure owner in the event of a
safety problem with the structure (e.g., an unlit tower). The
base forfeiture amount for failure to file an antenna structure
registration form is $3,000.11 However, we believe that failure
to post an antenna structure registration number is less serious
than failure to file an antenna structure registration form and
we find that the appropriate forfeiture amount for this violation
is $2,000 for each of ATC's nine instances of failing to post the
antenna registration number. Thus, the total base forfeiture
amount for all of ATC's violations is $106,000.
10. We are concerned, however, with the large number of
violations by ATC uncovered by field agents as demonstrated in
Attachment 1. The violations at issue in this case are serious.
Unlit and unmarked antenna structures can pose a threat to air
safety. For this reason, we believe it is important to insist
upon full compliance with these rules, including those designed
to enable us to readily locate antenna structure owners.
11. We are also concerned that ATC continues to violate
our rules despite both oral and written warnings regarding the
Commission's antenna structure requirements. In this regard, it
is noteworthy that most of the failure to file ownership change
violations were uncovered after our field agents' July 26, 2000
meeting with ATC's representatives. In fact, slightly more than
half of the 36 violations listed in Attachment 1 were uncovered
after this meeting. Moreover, the fact that these violations
occurred in various states across the country suggests that ATC
has not engaged in a ``sweep'' of its antenna structures as its
representatives stated that it would. Accordingly, in light of
the large number of violations and ATC's apparent disregard for
the Commission's rules and processes, we believe that a
significant upward adjustment of the forfeiture in this case is
warranted. Applying the Forfeiture Policy Statement and
statutory factors (e.g, nature, extent and gravity of the
violation and the culpability of the violator) to the instant
case, we find ATC apparently liable for forfeiture in the amount
of $212,000.
12. Additionally, we are troubled that our field agents,
in the context of routine enforcement responses and sample
inspections, continue to uncover additional antenna structure
rule violations by ATC. Therefore, we direct the Enforcement
Bureau to conduct a further, more thorough investigation of ATC's
overall level of compliance with the Commission's antenna
structure painting, lighting and registration requirements and to
take or recommend appropriate additional enforcement action
against ATC.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,12 and Section 1.80 of the Commission's
Rules,13 American Tower Corporation is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of two hundred
twelve thousand dollars ($212,000) for violating Section 17.4(a),
Section 17.4(a)(1), Section 17.4(g), Section 17.45, and Section
17.57 of the Commission's Rules.14
14. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80
of the Commission's Rules,15 within thirty days of the release
date of this NOTICE OF APPARENT LIABILITY, American Tower
Corporation SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
15. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. referenced above.
16. The response, if any, must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau - TPSD,
NAL/Acct. No., and must include the NAL/Acct. Number.
17. 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 documentation
submitted.
18. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.16
19. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to American Tower Corporation, 116 Huntington Avenue,
11th Floor, Boston, MA 02116, ATTN: Doug C. Wiest, Chief
Operating Officer.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary Attachment 1
Notices of Violation (NOVs) issued to ATC from March 1, 2000, to
November 10, 2000.
Case Number Date Rule Tower City Comment
of Vio- Registration
Viola- lated Number
tion
EB-00-PO- 03/28- 17.4(- Booneville, ID Failed to register
036 /00 a) existing tower
EB-00-DT- 07/03- 17.4(- Beaver Creek, MI Failed to register
492 /00 a)(1) tower before
construction
EB-00-KC- 09/18- 17/4(- Troy, MO Failed to post
148 /00 g) registration number
EB-00-DV- 04/18- 17.4(- Seibert, CO Failed to post
185 /00 g) registration number
EB-00-DV- 07/19- 17.4(- Moriarty, MN Failed to post
399 /00 g) registration number
EB-00-AT- 06/23- 17.4(- Kershaw, SC Failed to post
635 /00 g) registration number
EB-00-NY- 03/29- 17.4(- Plainview, NY Failed to post
117 /00 g) registration number
EB-00-AT- 07/20- 17.4(- Chattanooga, TN Failed to post
814 /00 g) registration number
EB-00-DV- 07/19- 17.4(- Tijeras, NM Failed to post
403 /00 g) registration number
EB-00-NY- 10/18- 17.4(- Shirley, NY Failed to post
501 /00 g) registration number
EB-00-TP- 08/09- 17.4(- Jacksonville, FL Failed to post
581 /00 g) registration number
EB-00-CF- 10/12- 17.45 Washington, DC Failed to light tower
548 /00 during construction
EB-00-TP- 05/11- 17.57 Green Cove Failed to change
334 /00 Springs, FL ownership
1053949
EB-00-TP- 05/24- 17.57 Palm Bay, FL Failed to change
380 /00 1040915 ownership
EB-00-TP- 04/24- 17.57 Live Oak, FL Failed to change
391 /00 1039333 ownership
EB-00-TP- 07/07- 17.57 Zephyrhills, FL Failed to change
498 /00 1047967 ownership
EB-00-KC- 06/07- 17.57 Campbell, MO Failed to change
080 /00 1005485 ownership
EB-00-DL- 08/30- 17.57 Tyler, TX Failed to change
255 /00 1059063 ownership
EB-00-DL- 08/30- 17.57 Camp Hill, TX Failed to change
256 /00 1059059 ownership
EB-00-DL- 08/30- 17.57 Longview, TX Failed to change
257 /00 1059439 ownership
EB-00-DL- 08/30- 17.57 Marshall, TX Failed to change
258 /00 1060319 ownership
EB-00-DL- 08/30- 17.57 Carrier, OK Failed to change
260 /00 1011570 ownership
EB-00-TP- 08/29- 17.57 Croom, FL Failed to change
155 /00 1036013 ownership
EB-00-TP- 08/02- 17.57 Caniville, FL Failed to change
194 /00 1044466 ownership
EB-00-TP- 04/20- 17.57 Lake City, FL Failed to change
294 /00 1051847 ownership
EB-00-TP- 08/10- 17.57 Lacoochee, FL Failed to change
544 /00 1040912 ownership
Eb-00-PA- 08/04- 17.57 Kittanning, PA Failed to change
258 /00 1061920 ownership
EB-00-PA- 06/08- 17.57 Butler, PA Failed to change
422 /00 1042705 ownership
EB-00-PA- 06/08- 17.57 Corry, PA Failed to change
423 /00 1053926 ownership
EB-00-PA- 06/08- 17.57 Nickleville, PA Failed to change
424 /00 1042704 ownership
EB-00-PA- 11/01- 17.57 Florence, NJ Failed to change
431 /00 1056132 ownership
EB-00-TP- 10/18- 17.57 MacClenny, FL Failed to change
130 /00 1200479 ownership
EB-00-TP- 11/01- 17.57 Crescent City, Failed to change
131 /00 FL ownership
1056866
EB-00-TP- 10/18- 17.57 Ormond Beach, FL Failed to change
264 /00 1020470 ownership
EB-00-TP- 10/18- 17.57 Indiantown, FL Failed to change
311 /00 1052320 ownership
EB-00-TP- 10/18- 17.57 Monticello, FL Failed to change
676 /00 1054118 ownership
_________________________
1 47 C.F.R. §§ 17.4(a), 17.4(a)(1), 17.4(g), 17.45 and 17.57.
2 47 C.F.R. § 17.4(a)(2).
3 Antenna structure owners were required to register existing
antenna structures as of July 1, 1998 and to register new antenna
structures prior to construction. Streamlining the Commission's
Antenna Structure Clearance Procedure, 11 FCC Rcd 4272 (1995).
Subsequent to the expiration of the filing period, the Commission
staff issued a Public Notice warning antenna structure owners to
register any unregistered antenna structures subject to our
requirements immediately or face possible monetary forfeitures or
other enforcement action. Public Notice, ``No-Tolerance Policy
Adopted For Unregistered Antenna Structures,'' 1999 WL 10060 (WTB
1999).
4 In five of these 11 cases, ATC eventually responded, but only
after follow-up by the Commission's field agents.
5 Section 312(f)(1) of the Act, 47 U.S.C. § 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 ....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991). The term ``repeated'' means the commission or
omission of an act more than once. 47 U.S.C. § 312(f)(2).
6 47 C.F.R. §§ 17.4(a), 17.4(a)(1), 17.4(g), 17.45, and 17.57.
7 Section 503(b)(2)(C) provides for forfeitures up to $10,000 for
each violation by cases not covered by subparagraphs (A) or (B),
which address fofeitures for violations by licensees and common
carriers, among others. See 47 U.S.C. Section 503(b); 47 C.F.R.
Section 1.80. The Commission amended its rules by adding a new
subsection to its monetary forfeiture provisions that
incorporates by reference the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996 (Pub. L
104-134, Sec. 31001, 110 Stat. 1321), enacted on April 26, 1996.
Thus, the statutory maximum pursuant to section 503(b)(2)(C)
increased from $10,000 to $11,000. See Amendment of Section 1.80
of the Commission's Rules, 12 FCC Rcd 1038 (1997). See also
Amendment of Section 1.80 of the Commission's Rules, FCC 00-347
(September 19, 2000).
8 47 U.S.C. Section 503(b)(2)(D).
9 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
10 The fact that the Guidelines do not specify a base amount does
not indicate that no forfeiture should be imposed. The Guidelines
state that `` any omission of a specific rule violation from the
. . . [forfeiture guidelines] . . . should not signal that the
Commission considers any unlisted violation as nonexistent or
unimportant.'' Forfeiture Policy Statement, at 17,099 para. 22.
The Commission retains the discretion, moreover, to depart from
the Guidelines and issue forfeitures on a case-by-case basis,
under its general forfeiture authority contained in section 503
of the Act. Id.
11 See 47 C.F.R. Section 1.80(b)(4) Note (failure to file
required forms or information).
12 47 U.S.C. § 503(b).
13 47 C.F.R. § 1.80.
14 47 C.F.R. §§ 17.4(a), 17.4(a)(1), 17.4(g), 17.45, and 17.57.
15 47 C.F.R. § 1.80.
16 See 47 C.F.R. § 1.1914.