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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AT&T Wireless Services, Inc. ) File No. EB-02-SD-012
)
Washington, DC ) NAL/Acct. No. 200232940002
)
) FRN # 0006-1660-29
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 18, 2002 Released: April 25, 2002
By the Commission: Commissioner Abernathy issuing a statement.
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''),we find AT&T Wireless Services, Inc. (``AT&T
Wireless''), Washington, DC, apparently liable for a forfeiture
in the amount of one hundred fifty three thousand dollars
($153,000) for nine willful and repeated violations of Section
303(q) of the Communications Act of 1934, as amended (``Act''),1
and Part 17 of the Commission's Rules (``Rules'') relating to
antenna structure construction, marking and lighting.2
2. In particular, we find AT&T Wireless apparently liable
for one failure to register an existing antenna structure
(Section 17.4(a)(2)); four failures to post the Antenna Structure
Registration (``ASR'') number in a conspicuous location so that
it is visible near the base of the antenna structure (Section
17.4(g)); one failure to comply with the Federal Aviation
Administration's (``FAA'') painting and lighting specifications
for antenna structures (Section 17.23); one failure to maintain
good visibility of antenna structures that are required to be
painted (Section 17.50); and two failures to maintain the
required obstruction lighting on the antenna structures (Section
17.51(b)).3 We find that during the period of June 8, 2001
through February 8, 2002, AT&T Wireless failed to comply with one
of these requirements on nine occasions in eight separate
locations throughout the country.
3. The apparent violations here come within a year of a
prior forfeiture against AT&T Wireless for similar violations.4
Our rules relating to tower lighting and marking are important to
public safety. AT&T Wireless's apparent inability to comply with
these rules on a consistent basis is very troubling. In light of
these circumstances, we have tripled the base forfeiture amounts
for these violations. Future violations will result in even more
serious enforcement action.
II. BACKGROUND
4. The Commission's antenna structure construction,
marking and lighting requirements operate in concert with 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.5 We require
antenna structure owners to register antenna structures with the
Commission and post ASR numbers at the base of antenna structures
to allow for easy contact if problems arise.6 The rules
requiring antenna structure registration for all antenna
structures that may pose a hazard to air navigation have been in
effect since 1996.7 We have repeatedly advised antenna structure
owners that all existing, unregistered antenna structures subject
to our rules must be registered immediately or the owners face a
monetary forfeiture or other enforcement action.8
5. Because of the substantial public safety issues
involved, we further require antenna structure owners to monitor
lights daily or install automatic alarm systems to ensure lights
function properly.9 Antenna structure owners are required to
maintain lighting equipment and replace or repair inoperative
lights, indicators and control and alarm systems as soon as
practicable.10 Additionally, antenna structure owners are
required immediately to notify the FAA when major antenna
structure lights are inoperative and cannot be repaired within 30
minutes.11 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.
6. Commission field agents regularly inspect antenna
structures to determine compliance with the antenna structure
construction, marking and lighting requirements and promptly
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. During routine inspections of antenna
structures owned by AT&T Wireless, from April 20, 2000 to
December 7, 2000, Commission field agents discovered nine antenna
structures that did not have the ASR numbers posted as required.
These violations resulted in a $14,000 monetary forfeiture
against AT&T Wireless issued on March 19, 2001,12 which AT&T
Wireless paid in full on April 16, 2001. In the course of
ongoing routine inspections and investigations, Commission field
agents have continued to uncover a significant number of new
violations of the Commission's antenna structure requirements by
AT&T Wireless, and in the past year have issued a number of
Notices of Violation (``NOVs'') for such violations.13 A brief
discussion of the most serious of these safety-related
violations, which are the subject of this NAL, follows.
Woodland, California - File No. EB-00-SF-478
7. On September 15, 2000, agents from the Commission's San
Francisco, California Field Office (``San Francisco Office'')
inspected an antenna structure owned by AT&T Wireless which is
located at 824 N. East Street, Woodland, California (ASR No.
1014047). The agents observed that the tower's visibility was
severely reduced by coaxial cable on two sides of the structure.
On June 8, 2001, the San Francisco Office issued an NOV citing
AT&T Wireless for failure to maintain good visibility of the
tower in violation of Section 17.50 of the Rules. In its June
18, 2001, response to the NOV, AT&T Wireless stated that it was
in the process of having all of the coaxial cable on the tower
painted in aviation orange and white as described in the current
FAA Advisory Circular on Obstruction Marking and Lighting and
that it anticipated that the painting would be completed by June
29, 2001.14
Bluffdale, Utah - File No. EB-01-DV-382
8. On August 14, 2001, after sunset, agents from the
Commission's Denver, Colorado Field Office (``Denver Office'')
inspected an antenna structure owned by AT&T Wireless which is
located at 16400 South 1942 West in Bluffdale, Utah (ASR No.
1039565). The agents observed that a side intermediate light on
the southwestern side of the tower was flashing, rather than
steady burning. The FAA's painting and lighting specifications
for the tower require that the side intermediate lights be steady
burning. On November 19, 2001, the Denver Office issued an NOV
citing AT&T Wireless for failure to conform to the FAA's painting
and lighting specifications for the tower in violation of Section
17.23 of the Rules and failure to correct the improper
functioning of a steady burning side intermediate light in
violation of Section 17.48(b) of the Rules. In its December 20,
2001, response to the NOV, AT&T Wireless confirmed that a side
intermediate light on the tower was flashing, rather than steady
burning as required.
Tyler, Texas - File No. EB-01-DL-696
9. On August 15, 2001, an agent from the Commission's
Dallas, Texas Field Office (``Dallas Office'') inspected an
antenna structure located at 8562 County Road, Tyler, Texas. The
agent observed that there was no ASR number posted at the site.
A search of Commission records revealed the structure was
registered to AT&T Wireless (ASR No. 1047254). On November 15,
2001, the Dallas Office issued an NOV citing AT&T Wireless for
failure to post the ASR number in a conspicuous place so that it
is readily visible near the base of the tower in violation of
Section 17.4(g) of the Rules. In its December 10, 2001, response
to the NOV, AT&T Wireless acknowledged that at the time of the
inspection, the ASR number was not affixed to the tower.
Fellsmere, Florida - File No. EB-01-TP-502
10. On November 27, 2001, agents from the Commission's
Tampa, Florida Field Office (``Tampa Office'') inspected an
antenna structure located on County Road 507 in Fellsmere,
Florida. The agents observed that there was no ASR number posted
at the site. Subsequent investigation revealed that AT&T
Wireless owned the structure but had not registered it. On
December 21, 2001, the Tampa Office issued an NOV citing AT&T
Wireless for failure to register the antenna structure in
violation of Section 17.4(a)(2) of the Rules. In its January 7,
2002, response to the NOV, AT&T Wireless admitted that the tower
was not registered at the time of the inspection.
Malabar, Florida - File No. EB-01-TP-488
11. On November 27, 2001, agents from the Tampa Office
inspected an antenna structure located on County Road 507 in
Malabar, Florida. The agents observed that there was no ASR
number posted in a conspicuous place so that it is readily
visible. A search of Commission records revealed that the
structure was registered to AT&T Wireless (ASR No. 1028946). On
December 3, 2001, the Tampa Office issued an NOV citing AT&T
Wireless for failure to post the ASR number in a conspicuous
place so that it is readily visible near the base of the tower in
violation of Section 17.4(g) of the Rules. In its December 10,
2001, response to the NOV, AT&T Wireless stated that the ASR
number was affixed to the tower, but acknowledged that it was not
readily visible unless you are in the compound. AT&T Wireless
indicated that it would place a placard with the ASR number on
the fence so that it is visible at a location accessible to the
public within the next few days.
Okeechobee, Florida - File No. EB-02-TP-012
12. On January 8, 2002, an agent from the Tampa Office
inspected an antenna structure located on Highway 441 in
Okeechobee, Florida. The agent observed that there was no ASR
number posted at the site. A search of Commission records
revealed that the structure was registered to AT&T Wireless (ASR
No. 1226262). On January 14, 2002, the Tampa Office issued an
NOV citing AT&T Wireless for failure to post the ASR number in a
conspicuous place so that it is readily visible near the base of
the tower in violation of Section 17.4(g) of the Rules. In its
February 1, 2002, response to the NOV, AT&T Wireless acknowledged
that at the time of the inspection, the ASR number was not
affixed to the tower.
Center Township, Pennsylvania - File No. EB-02-PA-043
13. On January 24, 2002, at approximately 9 a.m., an agent
from the Philadelphia Office inspected an antenna structure owned
by AT&T Wireless which is located in Center Township,
Pennsylvania (ASR No. 1026350). The agent observed that the
white obstruction lighting on the tower was not operating. On
January 31, 2002, the Philadelphia Office issued an NOV citing
AT&T Wireless for failure to conform to the FAA's painting and
lighting specifications in violation of Section 17.23 of the
Rules. In its February 13, 2002, response to the NOV, AT&T
Wireless confirmed that the obstruction lighting was out at the
time of the inspection. AT&T Wireless stated that an employee
noticed the outage on January 30, 2002 and discovered that the
automatic monitoring system that alerts AT&T Wireless when a
light is out did not pick up the outage because a relay on the
tower malfunctioned. AT&T Wireless further stated that it opened
a NOTAM the same day, and that it repaired the light outage and
the malfunctioning relay on the following day and then closed the
NOTAM.
Holly Hill, Florida - File No. EB-02-TP-054
14. On February 7, 2002, an agent from the Tampa Office
inspected an antenna structure located at 112 Carswell Avenue,
Holly Hill, Florida at approximately 5 p.m. The agent inspected
the antenna structure again at approximately 10 a.m. on February
8, 2002. On both occasions, the agent observed that there was no
ASR number posted at the site and that the red obstruction
lighting on the tower was operating, but the white obstruction
lighting on the tower was not in operation. Subsequent
investigation revealed that the tower was registered to AT&T
Wireless (ASR No. 1203757), that the FAA's painting and lighting
specifications for the tower require both red and white
obstruction lighting, and that there was no NOTAM in effect for
the tower. Thus, the Tampa Office concluded that AT&T Wireless
has apparently failed to post the ASR number in a conspicuous
place so that it is readily visible near the base of the tower in
violation of Section 17.4(g) of the Rules and failed to exhibit
the required white obstruction lighting on the tower in violation
of Section 17.51(b) of the Rules.15
III. DISCUSSION
15. Based on the evidence before us, we find that AT&T
Wireless has apparently failed to register an antenna structure
in one instance in willful16 violation of Section 17.4(a)(2);
failed to post an ASR number in a conspicuous location so that it
is readily visible near the base of the antenna structure in four
instances in willful violation of Section 17.4(g); failed to
comply with the FAA's painting and lighting specifications in one
instance in willful violation of Section 17.23;17 failed to
maintain good visibility of an antenna structure that is required
to be painted in willful violation of Section 17.50; and failed
to exhibit the required obstruction lighting on its antenna
structure in two instances in willful violation of Section
17.51(b).18 The violations of Sections 17.23, 17.50 and 17.51(b)
were also repeated in that they occurred on more than one day.19
We also find that AT&T Wireless has failed to maintain the
painting and lighting of its antenna structures as required by
our rules in willful and repeated violation of Section 303(q) of
the Act.
16. Section 503(b) of the Act20 authorizes the Commission
to assess a forfeiture for each violation of the Act or of any
rule, regulation, or order issued by the Commission under the
Act. 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.''21
17. 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''),22 and Section 1.80 of the Rules,23 the base
forfeiture amount for failure to comply with prescribed lighting
and marking requirements is $10,000, and the base forfeiture
amount for failure to file required forms or information (e.g.,
failure to file an antenna registration form) is $3,000. The
Forfeiture Policy Statement does not establish a base forfeiture
amount for failure to post the antenna structure registration
number.24 The Commission has determined, however, that an
appropriate base forfeiture amount for failure to post the ASR
number is $2,000 per violation.25
18. Application of the base amounts to AT&T Wireless's
violations results in an initial proposed forfeiture of $10,000
for each of the four instances of violations of the lighting and
marking rules, a forfeiture of $3,000 for the failure to register
an antenna structure, and a forfeiture of $2,000 for each of the
four instances of violations of the ASR posting rules. Thus, the
total base forfeiture amount for all of AT&T Wireless's
violations is $51,000.
19. We are concerned, however, with the pattern of apparent
violations here. Unlit and improperly lit antenna structures can
pose a serious threat to air safety. Furthermore, we have
previously stressed the importance of full compliance with the
antenna structure rules because of the potential danger to air
traffic safety, including the rules designed to enable us to
readily locate antenna structure owners.26
20. We are particularly troubled that AT&T Wireless
continues to violate these rules despite a forfeiture assessment
just one year ago for nine instances of failure to comply with
the ASR posting rules. This prior forfeiture action put AT&T
Wireless on notice that the Commission considers these types of
violations to be serious safety-related infractions, yet AT&T
Wireless apparently failed to take adequate steps to ensure its
future compliance in this area. AT&T Wireless's new violations
not only include four new instances of ASR posting violations,
but three very serious violations of the antenna structure
lighting rules. AT&T Wireless's continuing violations of the
antenna structure requirements evince a pattern of non-compliance
with and apparent disregard for these safety-related rules.
Accordingly, we believe a significant upward adjustment of the
base forfeiture amount is warranted.27 Applying the Forfeiture
Policy Statement and statutory factors (e.g., nature, extent and
gravity of the violation and the history of prior offenses)28 to
the instant case, we conclude that it is appropriate to triple
the base forfeiture amounts for AT&T Wireless's apparent
violations. Therefore, we find AT&T Wireless apparently liable
for a forfeiture in the amount of $153,000.
IV. ORDERING CLAUSES
21. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Section 1.80 of the Rules, AT&T Wireless
Services, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of one hundred fifty three thousand
dollars ($153,000) for willfully violating Sections 17.4(a)(2)
and 17.4(g) of the Rules and willfully and repeatedly violating
Section 303(q) of the Act and Sections 17.23, 17.50 and 17.51(b)
of the Rules.
22. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this Notice
of Apparent Liability, AT&T Wireless Services, Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
23. 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
NAL/Acct. No. 200232940002 and FRN # 0006-1660-29. Requests for
payment of the full amount of this Notice of Apparent Liability
under an installment plan should be sent to: Chief, Revenue and
Receivables Operation Group, 445 12th Street, S.W., Washington,
DC 20554.29
24. The response if any must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, DC 20554, ATTN: Enforcement Bureau - Technical
and Public Safety Division and must include NAL/Acct. No.
200232940002.
25. 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; 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.
26. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability shall be sent by Certified Mail Return Receipt
Requested to David Jatlow, Vice President, Regulatory Affairs,
AT&T Wireless Services, Inc. at Fourth Floor, 1150 Connecticut
Avenue, N.W., Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
SEPARATE STATEMENT OF
COMMISSIONER KATHLEEN ABERNATHY
In re: SpectraSite Communications Inc. - Notice of Apparent
Liability for Forfeiture; AT&T Wireless Services Inc. - Notice
of Apparent Liability for Forfeiture
I support today's decisions to render substantial notices of
apparent liability against wireless tower owners who have
violated our tower marking and lighting requirements. I write
separately to call attention to the excellent and important work
of our field offices in these stepped up enforcement efforts.
Our field agents are our grass roots front line of defense
against unlawful spectrum and tower safety practices. As a
federal regulatory agency, we necessarily operate with most of
our personnel in Washington DC. However, for most Americans, the
FCC they see and hear and call upon for help work in the dozens
of field offices the Commission operates around the country. The
Commission has unique responsibilities for enforcement of
interference rules, tower safety, and unlicensed radio
operations, among others. These NALs are one indication of this
important work. In three regional offices and twenty five field
offices round the country, 109 agents with extensive technical
and enforcement expertise work tirelessly for a fraction of what
they could earn in the private sector. Since January 2001 in the
tower safety area alone, field agents have been integral in
issuing 37 Commission and/or Enforcement Bureau NALs, forfeiture
orders and consent decrees totaling well over $600,000.
Unfortunately, at times, the fine efforts of the field offices do
not receive the recognition they deserve. I write separately in
an effort to close this gap.
_________________________
1 47 U.S.C. § 303(q) (Antenna structure owners shall maintain the
painting and lighting of antenna structures as prescribed by the
Commission.)
2 47 C.F.R. § 17.1 et seq.
3 47 C.F.R. §§ 17.4(a)(2), 17.4(g), 17.23, 17.50 and 17.51(b).
4 See ¶ 6 and note 12, infra.
5 47 C.F.R. § 17.21.
6 47 C.F.R. § 17.4.
7 Antenna structure owners were required to register existing
antenna structures during a two-year filing period between July
1, 1996 and June 30, 1998, and to register new antenna structures
prior to construction. Streamlining the Commission's Antenna
Structure Clearance Procedure, 11 FCC Rcd 4272 (1995).
8 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 rel. January 13, 1999). In
addition, in June and July 1999, the Wireless Telecommunications
Bureau sent letters to licensees informing them that the
Commission had no valid registration for their antenna site and
that owners and, to the extent they were liable, tenants could
face monetary forfeitures for structures that remained
unregistered.
9 47 C.F.R. § 17.47.
10 47 C.F.R. § 17.56.
11 47 C.F.R. § 17.48.
12 AT&T Wireless Services, Inc., 16 FCC Rcd 814 (Enf. Bur. 2001),
forfeiture ordered, 16 FCC Rcd 6805 (Enf. Bur. 2001).
13 See Public Notice, Enforcement Bureau Field Offices List of
Actions Taken, DA 01-1314 (rel. May 31, 2001); Public Notice,
Enforcement Bureau Field Offices List of Actions Taken, DA 01-
1644 (rel. July 12, 2001); Public Notice, Enforcement Bureau
Field Offices List of Actions Taken, DA 01-1756 (rel. July 25,
2001); Public Notice, Enforcement Bureau Field Offices List of
Actions Taken, DA 01-2948 (rel. December 21, 2001); and Public
Notice, Enforcement Bureau Field Offices List of Actions Taken,
DA 02-197 (rel. January 28, 2002).
14 Because the violation continued until the painting was
completed in June 2001, the violation is within the one-year
statute of limitations.
15 The Tampa Office had not yet issued an NOV to AT&T Wireless
for these violations prior to issuance of this NAL.
16 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).
17 Although in EB-01-DV-382, the Denver Office issued an NOV
citing AT&T Wireless for violation of Sections 17.23 and 17.48(b)
based on its observation that a side intermediate light on the
Bluffdale, Utah antenna structure was flashing rather than steady
burning, we are not including the violation of Section 17.48(b)
as a separate violation in this NAL because this violation is
encompassed in the violation of Section 17.23.
18 We note that in EB-01-PA-043, the Philadelphia Office issued
an NOV citing AT&T Wireless for violation of Section 17.23 of the
Rules based on its observation that the white obstruction
lighting on the Center Township antenna structure was not
operating. Although Section 17.23 requires antenna structure
owners to comply with the FAA's painting and lighting
specifications and thus clearly covers the observed violation, we
are citing AT&T Wireless in this NAL for violation of Section
17.51(b), which explicitly requires antenna structure owners to
exhibit all high intensity and medium intensity obstruction
lighting continuously unless otherwise specified.
19 The term ``repeated'' means the commission or omission of an
act more than once. 47 U.S.C. § 312(f)(2).
20 47 U.S.C. § 503.
21 47 U.S.C. § 503(b)(2)(D).
22 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
23 47 C.F.R § 1.80.
24 The fact that the Forfeiture Policy Statement does not specify
a base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states 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, 12 FCC Rcd at 17099. The Commission retains
the discretion, moreover, to depart from the Forfeiture Policy
Statement and issue forfeitures on a case?by?case basis, under
its general forfeiture authority contained in Section 503 of the
Act. Id.
25 American Tower Corporation, 16 FCC Rcd 1282 (2001) (``American
Tower'').
26 Id. at 1282-85.
27 Cf., American Tower, 16 FCC Rcd at 1285 (base forfeiture
amount doubled); TeleCorp Communications, Inc., 16 FCC Rcd 805,
807 (Enf. Bur. 2001) (base forfeiture amount doubled).
28 See also 47 C.F.R. § 1.80, Note to paragraph (b)(4): Section
II. Adjustment Criteria for Section 503 Forfeitures.
29 See 47 C.F.R. § 1.1914.