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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
)
FORFEITURE ORDER
Adopted: October 29, 2002 Released: October 31,
2002
By the Commission:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we assess a
forfeiture in the amount of one hundred seventeen thousand
dollars ($117,000) against AT&T Wireless Services, Inc. (``AT&T
Wireless'') for seven willful and/or 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 The noted violations involve AT&T Wireless's failure
on one occasion to register an existing antenna structure in
willful violation of Section 17.4(a)(2); failure on three
occasions to post the Antenna Structure Registration (``ASR'')
number in a conspicuous location so that it is visible near the
base of the antenna structure in willful violation of Section
17.4(g); failure on one occasion to maintain good visibility of
antenna structures that are required to be painted in willful and
repeated violation of Section 17.50; and failure on two occasions
to maintain the required obstruction lighting on an antenna
structure in willful and repeated violation of Section 17.51(b).3
II. BACKGROUND
2. The Commission's antenna structure construction,
marking and lighting 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.4 We also require antenna structure owners to
register such antenna structures with the Commission and post ASR
numbers at the base of antenna structures to allow for easy
contact if problems arise.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.6 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.7 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.8 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.
3. 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. 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, 2001,9 which AT&T Wireless paid in full on April 16, 2001.
4. Subsequently, in the course of further routine
inspections and investigations, Commission field agents uncovered
a significant number of new violations of the Commission's
antenna structure rules by AT&T Wireless.10 On April 25, 2002,
the Commission issued a Notice of Apparent Liability for
Forfeiture (``NAL'') finding AT&T Wireless apparently liable for
a $153,000 forfeiture for nine apparent violations of the antenna
structure rules: one failure to register an existing antenna
structure (Section 17.4(a)(2)); four failures to post the 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 FAA's painting and lighting specifications for
antenna structures (Section 17.23);11 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)).12 The total base forfeiture amount for the nine
violations was $51,000. However, the Commission expressed
concern that AT&T Wireless continued to violate the antenna
structure rules despite a forfeiture assessment one year earlier
for nine instances of failure to comply with the ASR posting
rules and found that these continuing violations evinced a
pattern of non-compliance and apparent disregard for these
safety-related rules. The Commission therefore concluded that a
significant upward adjustment of the base forfeiture amount was
warranted and tripled the base forfeiture amount for AT&T
Wireless's apparent violations from $51,000 to $153,000.
5. AT&T Wireless filed a response to the NAL on May 28,
2002. In its response, AT&T Wireless disputes that violations
occurred in many of the instances cited in the NAL and requests
that the Commission reduce the total base forfeiture amount to
$6,500. AT&T Wireless also argues that the Commission's decision
in the NAL to triple the aggregate base forfeiture amount was
unwarranted.
III. DISCUSSION
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,13 Section
1.80 of the Rules,14 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997),
recon. denied, 15 FCC Rcd 303 (1999). In examining AT&T
Wireless's response to the NAL, Section 503(b) of the Act
requires that the Commission 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 other such matters as
justice may require.15 The Commission will issue a forfeiture
order if it finds by a preponderance of the evidence that AT&T
Wireless has violated the Act or the Rules.16 As set forth in
detail below, we conclude that, based on this standard, AT&T
Wireless is subject to a forfeiture.
A. AT&T Wireless's Challenges to Violations
7. AT&T Wireless disputes a number of the violations cited
in the NAL. We address AT&T Wireless's arguments with respect to
the specific violations in turn below.
Center Township, Pennsylvania - File No. EB-02-PA-043
8. On January 24, 2002, an agent from the Commission's
Philadelphia, Pennsylvania Field Office (``Philadephia Office'')
inspected a Center Township, Pennsylvania antenna structure owned
by AT&T Wireless (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 a Notice of
Violation (``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
called the FAA to open 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. In the NAL, the Commission cited
AT&T Wireless for apparently failing to exhibit obstruction
lighting on its Center Township tower continuously in willful and
repeated violation of Section 17.51(b) and, prior to the upward
adjustment, proposed a $10,000 forfeiture for this violation.17
9. In its response to the NAL, AT&T Wireless argues that
it does not believe that it violated the tower lighting rules at
the Center Township site and that the proposed forfeiture should
therefore be cancelled. AT&T Wireless asserts that a conflict in
the rules places antenna structure owners in a ``Catch-22''
situation because Section 17.51(b) requires continuous operation
of obstruction lights, while Section 17.47(a) recognizes that
lights will sometimes malfunction and therefore requires either
daily observation of the lights or use of an automatic alarm
system. In addition, AT&T Wireless asserts that it complied
fully with the tower lighting requirements but could not prevent
the brief light outage. Specifically, AT&T Wireless states that
it installed an automatic alarm system, but this system did not
pick up the light outage because there was a malfunction in a
relay on the tower that causes alarms to be transmitted to the
local switch and to its national network operations center.
Further, AT&T Wireless states that it inspected the tower and the
alarm system ``regularly.'' AT&T Wireless also states that an
AT&T Wireless employee noticed the outage on January 30, 2002,
the day before the NOV was issued, and took steps to remedy the
outage within one day.
10. We find no merit in AT&T Wireless's arguments. AT&T
Wireless's bare assertion that it inspected the tower and alarm
system ``regularly,'' without more specific evidence of such a
practice, is insufficient to establish its compliance with the
tower lighting requirements. Accordingly, we conclude that AT&T
Wireless willfully and repeatedly violated Section 17.51(b) by
failing to exhibit white obstruction lighting on its Center
Township towers and that AT&T Wireless has presented no basis for
canceling or reducing the $10,000 forfeiture proposed in the NAL
for this violation.
Woodland, California - File No. EB-00-SF-478
11. On September 15, 2000, agents from the Commission's San
Francisco, California Field Office (``San Francisco Office'')
inspected a Woodland, California antenna structure owned by AT&T
Wireless (ASR No. 1014047). The agents observed that coaxial
cable on two sides of the tower reduced good visibility 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. In the NAL, the Commission cited AT&T Wireless
for apparently failing to maintain good visibility of the
Woodland tower in willful and repeated violation of Section 17.50
and, prior to the upward adjustment, proposed a $10,000
forfeiture for this violation.
12. In its response to the NAL, AT&T Wireless does not
dispute that it violated Section 17.50. However, it disagrees
with the Commission's conclusion in the NAL that this violation
falls within the one-year statute of limitations in Section
503(b)(6)(B) of the Act.18 AT&T Wireless states that the
Commission became aware of the presence of the coaxial cable on
the tower when it inspected the tower on September 15, 2000, yet
it did not commence forfeiture proceedings until April 25, 2002.
The Commission nevertheless determined in the NAL that the
violation of Section 17.50 was within the one-year statute of
limitations because the violation continued until the painting of
the coaxial cable was completed in June 2001. AT&T Wireless
acknowledges that the statute of limitations accrues at the time
of the violation, as opposed to when the agency has knowledge of
the violation. Furthermore, AT&T Wireless does not dispute that
this violation was continuing. Nevertheless, AT&T Wireless
maintains that the Commission's view that the statute of
limitations is satisfied in this case because the violation was
continuing undermines Congress's objective in establishing
deadlines for regulatory enforcement action. We disagree. The
underlying objective of the statute of limitations - to protect a
person from liability for stale claims - is not implicated where,
as here, a violation is continuing.
13. AT&T Wireless also argues that a $10,000 forfeiture is
excessive in this situation. In this regard, AT&T Wireless
asserts the tower itself was painted in aviation orange and
white, that it does not believe that the unpainted coaxial cable
severely reduced the tower's visibility, and that it is unlikely
that the Field Office would have waited nine months to alert AT&T
Wireless to the problem if the unpainted cable truly created a
safety hazard. Additionally, AT&T Wireless states that it acted
promptly when it received the NOV to have the cables painted in
less than three weeks. AT&T Wireless further asserts that the
Commission's rules establish $10,000 as the fine for ``failure to
comply with prescribed lighting or marking'' and that this amount
would therefore be imposed when an owner failed to paint its
tower altogether or otherwise created a true hazard to air
safety. AT&T Wireless states that there is no indication that
air safety was ever compromised by the unpainted cable and that
the $10,000 forfeiture proposed in the NAL should therefore be
cancelled.
14. Since AT&T Wireless does not deny that the coaxial
cable on its Woodland tower was not painted from September 15,
2000 until June 29, 2001, we conclude that it willfully and
repeatedly violated Section 17.50 of the Rules by failing to
maintain good visibility of the tower. We disagree with AT&T
Wireless's argument that a $10,000 forfeiture for this violation
is excessive. The fact that the tower itself was painted in
aviation orange and white does not mitigate this violation.
Three agents from the San Francisco Office observed the tower and
determined that the coaxial cable obscured good visibility of the
tower. Moreover, while it would have been preferable for the
Field Office to have taken action here more promptly, it is AT&T
Wireless's responsibility as a tower owner to ensure that its
towers comply with the painting requirements and avoid the
continuing violation that occurred. We also think it is
irrelevant that there is no indication that air safety was
actually compromised by the unpainted cable. The potential
hazard to air navigation presented by the unpainted cable raises
serious safety of life concerns justifying a $10,000 forfeiture.
Finally, AT&T Wireless's remedial actions to correct the
violation are not a mitigating factor.19
Holly Hill, Florida - File No. EB-02-TP-054
15. On February 7, 2002, and again on February 8, 2002, an
agent from the Commission's Tampa, Florida Field Office (``Tampa
Office'') inspected a Holly Hill, Florida antenna structure. 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. In the NAL, the Commission
cited AT&T Wireless for apparently failing to post the ASR number
in a conspicuous place so that it is readily visible near the
base of the tower in willful violation of Section 17.4(g) of the
Rules and failing to exhibit the required white obstruction
lighting on the tower in willful and repeated violation of
Section 17.51(b) of the Rules.20 The Commission, prior to the
upward adjustment, proposed a $2,000 forfeiture for the posting
violation and a $10,000 forfeiture for the lighting violation.
16. In its response to the NAL, AT&T Wireless concedes that
it did not have the ASR number posted at the Holly Hill site at
the time of the inspection. However, AT&T Wireless asserts that
the $10,000 forfeiture proposed for failure to exhibit white
obstruction lighting on the tower should be cancelled. AT&T
Wireless states that it has an automatic alarm system for this
tower and its switches and/or network operations center pick up
alarms when lights on the tower malfunction. AT&T Wireless
further states that it has examined its logs for the Holly Hill
site and no alarms were received for this tower since January 1,
2002. AT&T Wireless indicates that after the NAL was released,
it dispatched a technician to the site on April 29, 2002, and the
technician observed that all lights were operating correctly and
that the alarm system was in proper operating condition. AT&T
Wireless asserts that it cannot explain the discrepancy between
its records and observations and those of the Commission's field
agent. AT&T Wireless states that it is conceivable that there
were some intermittent light problems but maintains that the
alarm would have been triggered in that case. AT&T Wireless also
suggests that it is possible that the lights were operational but
not easily seen from the ground. AT&T Wireless argues that since
two and a half months passed between the Tampa Office's
observations and issuance of the NAL, it cannot now defend itself
against charges for a violation that was not continuing at the
time of the NAL and for which it has no record of having
occurred.
17. Since AT&T Wireless admits that it did not have the ASR
number posted at the Holly Hill site at the time of the
inspection, we conclude that it willfully violated Section
17.4(g) of the Rules. Based on the record before us, we also
conclude that AT&T Wireless willfully and repeatedly violated
Section 17.51(b) of the Rules by failing to exhibit white
obstruction lighting on the tower. The fact that AT&T Wireless
has no record of the lighting violation does not justify
cancellation of the proposed forfeiture. AT&T Wireless's
suggestion that the lights were operational but not easily seen
from the ground is unsupported by the record. The inspecting
agent observed the tower from the ground at the Holly Hill site
and also drove away from the site in a couple of directions and
observed the tower from a distance. Using this method, the agent
observed that the white obstruction lighting was not operational.
Under these circumstances, we find no basis for canceling the
$10,000 forfeiture proposed for this violation.
Bluffdale, Utah - File No. EB-01-DV-382
18. On August 14, 2001, agents from the Commission's
Denver, Colorado Field Office (``Denver Office'') inspected a
Bluffdale, Utah antenna structure owned by AT&T Wireless (ASR No.
1039565). The agents observed that a side intermediate light on
the southwestern side of the tower was flashing, rather than
steady burning as required by the tower's ASR. 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 admitted that a side intermediate light on the
tower was flashing, rather than steady burning, and stated that
it had taken steps to repair the light. In the NAL, the
Commission cited AT&T Wireless for apparently failing to conform
to the FAA's painting and lighting specifications for the
Bluffdale tower in willful and repeated violation of Section
17.23 and, prior to the upward adjustment, proposed a base
forfeiture of $10,000 for this violation.
19. In its response to the NAL, AT&T Wireless asserts, for
the first time, that the Bluffdale tower was registered
voluntarily (i.e., the structure was less than 200 feet in height
and passed the ``slope test'' used to determine whether a
structure will interfere with the approach or departure space of
a nearby airport and therefore FAA notification of the structure
was not required)21 and indicates that it terminated the
registration for this tower on December 19, 2001.22 AT&T
Wireless argues that since it was not required to register this
tower, we should not impose a forfeiture for the violation cited
in the NAL. We agree with AT&T Wireless and we will cancel the
forfeiture proposed for this violation.23 We remind AT&T
Wireless, however, that the Commission has previously stated that
antenna structures which do not require notification to the FAA
should not be registered.24
Tyler, Texas - File No. EB-01-DL-696
Okeechobee, Florida - File No. EB-02-TP-012
Malabar, Florida - File No. EB-01-TP-488
20. On November 15, 2001, the FCC's Dallas, Texas Field
Office issued an NOV citing AT&T Wireless for failing to post its
ASR number on or near the base of its Tyler, Texas antenna
structure in violation of Section 17.4(g) of the Rules. On
December 3, 2001, and January 14, 2002, respectively, the Tampa
Office issued NOVs citing AT&T Wireless for failing to post its
ASR numbers on or near the base of its Malabar, Florida and
Okeechobee, Florida antenna structures in violation of Section
17.4(g) of the Rules. In the NAL, the Commission cited AT&T
Wireless for apparently failing to post its ASR number at these
three tower sites in willful violation of Section 17.4(g) of the
Rules and, prior to the upward adjustment, proposed forfeitures
of $2,000 for each of these violations. In its response to the
NAL, AT&T Wireless asserts that the $2,000 forfeiture proposed
for the Malabar, Florida site should be cancelled because there
was no violation of Section 17.4(g) at this site. In this
regard, AT&T Wireless states that while the ASR number was not
visible from outside the Malabar, Florida tower compound, the ASR
number was affixed to the base of the tower and could be easily
seen at the base of the tower. AT&T Wireless acknowledges that
the ASR numbers were not posted at the Tyler, Texas and
Okeechobee, Florida tower sites at the time of the inspections,
although it states that it believes that the ASR numbers were
originally attached to these towers and suggests that ASR
placards sometimes disappear because of weather conditions or
vandalism.
21. We agree with AT&T Wireless that the $2,000 forfeiture
proposed for the Malabar, Florida site should be cancelled.
Section 17.4(g) requires that the ASR number be posted in a
conspicuous location so that it is readily visible on or near the
base of the tower, and it now appears that the ASR number was in
fact affixed to the base of the Malabar, Florida tower. However,
we conclude that AT&T Wireless willfully violated Section 17.4(g)
by failing to post the ASR numbers on or near the base of the
Tyler, Texas and Okeechobee, Florida towers and that AT&T
Wireless has provided no basis for canceling or reducing the
forfeitures proposed in the NAL for these violations. AT&T
Wireless presents no evidence that the ASR numbers were
originally posted at the Tyler, Texas and Okeechobee, Florida
tower sites or that the ASR numbers were missing from these sites
due to either vandalism or weather. Moreover, it proffers no
evidence that it periodically inspected its ASR number postings
to learn of any that are missing.
Fellsmere, Florida - File No. EB-01-TP-502
22. On December 21, 2001, the Tampa Office issued an NOV
citing AT&T Wireless for failing to register its Fellsmere,
Florida tower in violation of Section 17.4(a)(2) of the Rules.
In the NAL, the Commission cited AT&T Wireless for apparently
failing to register its Fellsmere, Florida tower in willful
violation of Section 17.4(a)(2) of the Rules and, prior to the
upward adjustment, proposed a $3,000 forfeiture for this
violation. In its response to the NAL, AT&T Wireless admits that
the Fellsmere tower was not registered at the time of the
inspection. It argues, however, that the forfeiture for this
violation should be reduced to $1,500 because, although not
registered, the tower received an FAA determination of ``no
hazard'' in 1991 (based on the required lighting and marking) and
has been lighted and marked in accordance with Commission and FAA
requirements since that time. AT&T Wireless asserts that, when
the Commission adopted the tower registration rules in 1996, AT&T
Wireless inadvertently overlooked this tower in the course of
filing ASRs for the hundreds of towers it owned.
23. We conclude that AT&T Wireless failed to register its
Fellsmere, Florida tower in willful violation of Section
17.4(a)(2) of the Rules. In addition, we find no basis for
reduction of the $3,000 forfeiture proposed in the NAL for this
violation. AT&T Wireless has provided no support for its
assertion that its failure to register the tower was inadvertent.
Moreover, AT&T Wireless's compliance with related lighting and
marking rules does not render the failure to register less
significant; had the lights failed, the FCC still may not have
known who to contact because of the lack of registration.
Furthermore, as we stated in the NALž we have repeatedly advised
antenna structure owners that all existing antenna structures
subject to our rules must be registered immediately or the owners
face a monetary forfeiture or other enforcement action.25
B. Calculation of Forfeiture Amount
24. In addition to its specific challenges to the
violations cited in the NAL, AT&T Wireless also argues that the
Commission's decision in the NAL to triple the aggregate base
forfeiture amount was unwarranted. First, AT&T Wireless states
that the Commission's decision to triple the base forfeiture
amount stemmed from its belief that AT&T Wireless had committed
three very serious violations of the tower lighting rules. AT&T
Wireless maintains, however, that it did not violate the tower
lighting rules in any of the instances cited in the NAL.
Additionally, AT&T Wireless argues that the Commission's apparent
belief that AT&T Wireless is indifferent to the need to comply
with the antenna structure rules is far from the truth, as
evidenced by AT&T Wireless's thorough internal procedures and its
prompt efforts to cure violations brought to its attention. In
this regard, AT&T Wireless asserts that its longstanding policy
has been to adhere strictly to the antenna structure rules and
that it previously registered towers on a regular basis even when
not required to do so under the rules. AT&T Wireless further
asserts that since it was sanctioned last year for several ASR
number posting violations, it has taken a number of steps to
better ensure that its compliance policy and the specifics of the
Commission's rules are communicated effectively to the relevant
personnel. Specifically, AT&T Wireless states that it has
designated three employees in its Washington, D.C. legal office
to oversee compliance efforts and to serve as liaisons for all
questions from the field about the tower structure rules, that
this group has prepared and distributed memoranda and e-mails
detailing the registration, posting and lighting requirements on
numerous occasions, and that it has reinstituted its ``FCC 101''
courses for its employees across the country, the curriculum of
which includes antenna structure compliance.
25. We are not persuaded by AT&T Wireless's arguments that
our decision in the NAL to triple the aggregate base forfeiture
amount was unwarranted. As explained in detail above, we
disagree with AT&T Wireless's claim that it did not violate the
tower lighting rules in any of the three instances cited in the
NAL. Although we have cancelled one of the lighting violations
because the tower was voluntarily registered, we have concluded
that AT&T Wireless did willfully and repeatedly violate the tower
lighting rules in two of the instances cited in the NAL. Coupled
with the painting and posting violations in this case and AT&T
Wireless's past history of posting violations, we continue to
believe that these serious lighting violations support a
substantial upward adjustment of the base forfeiture amount.
26. Moreover, while AT&T Wireless asserts that its
longstanding policy has been to adhere strictly to the antenna
structure rules and that it has taken various steps to improve
its compliance with these rules, we are not convinced that AT&T
Wireless had an effective antenna structure compliance program in
place at the time of these violations. Nor do we think that AT&T
Wireless's efforts to cure violations brought to its attention
due in part to the failure of its current system to provide
timely notifications demonstrate strict compliance with the
rules. All licensees and Commission regulatees are expected to
promptly take corrective action when violations are brought to
their attention. We also note that nothing in AT&T Wireless's
description of its compliance plan indicates any efforts to do
follow-up checks regarding its compliance with registration and
posting rules.
27. More importantly, we find it troubling that AT&T
Wireless apparently continues to violate the antenna structure
rules. During the period just prior to the issuance of the NAL,
the Commission's Field Offices issued three additional NOVs to
AT&T Wireless as a result of routine tower inspections, two for
ASR number posting violations and one for failure to notify the
Commission of completion of construction of an antenna
structure.26 In its responses to these NOVs, AT&T Wireless
admitted that the ASR numbers were not posted at the times of the
inspections and that it failed to notify the Commission when it
completed construction of the tower. Furthermore, since issuance
of the NAL, the Field Offices have issued two more NOVs to AT&T
Wireless, one for an ASR number posting violation and failure to
notify the Commission of completion of construction of an antenna
structure and one for failure to paint coaxial cable attached to
the face of a tower.27 In its response to the NOV issued for a
posting violation and failure to notify the Commission of
completion of construction, AT&T acknowledged that there was no
ASR number posted at the time of the inspection and that it
failed to notify the Commission of completion of construction of
the tower. In its response to the NOV issued for failure to
paint the coaxial cable, AT&T Wireless acknowledges that the
cable was not painted. The Enforcement Bureau continues to
investigate these apparent violations, and we note that there has
been no adjudication in these cases. Nevertheless, these
additional apparent violations reinforce our conclusion in the
NAL that AT&T Wireless's continuing violations evince a pattern
of non-compliance with and apparent disregard for these safety-
related rules. We accordingly affirm our decision in the NAL to
triple the total base forfeiture amount for all of AT&T
Wireless's violations.
28. As discussed above, we have concluded that it is
appropriate to cancel the forfeiture amounts proposed in the NAL
for one lighting violation ($10,000) and for one ASR number
posting violation ($2,000). The base forfeiture amounts for the
remaining violations total $39,000 ($10,000 for each of the three
instances of violations of the lighting and marking rules, $3,000
for the failure to register an antenna structure, and $2,000 for
each of the three ASR number posting violations). We continue to
believe that it is appropriate to triple the aggregate base
forfeiture amount for these violations. Accordingly, we conclude
that AT&T Wireless is liable for a forfeiture in the amount of
$117,000 for willful and repeated violations of Section 303(q) of
the Act and Sections 17.50 and 17.51(b) of the Rules and willful
violations of Sections 17.4(a)(2) and 17.4(g) of the Rules.
IV. ORDERING CLAUSES
29. 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 LIABLE FOR A MONETARY FORFEITURE in the amount
of one hundred seventeen thousand dollars ($117,000) for
willfully and repeatedly violating Section 303(q) of the Act and
Sections 17.50 and 17.51(b) of the Rules and willfully violating
Sections 17.4(a)(2) and 17.4(g) of the Rules.
30. 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 Operations Group, 445 12th Street, S.W., Washington,
DC 20554.28
31. 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, and to Sara Leibman, Esq.,
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 701
Pennsylvania Avenue, N.W., Suite 900, Washington, D.C. 20004.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
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), 17.50 and 17.51(b).
4 47 C.F.R. § 17.21.
5 47 C.F.R. § 17.4.
6 47 C.F.R. § 17.47.
7 47 C.F.R. § 17.56.
8 47 C.F.R. § 17.48.
9 AT&T Wireless Services, Inc., 16 FCC Rcd 814 (Enf. Bur.
2001), forfeiture ordered, 16 FCC Rcd 6805 (Enf. Bur. 2001).
10 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).
11 47 C.F.R. § 17.23.
12 AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002).
13 47 U.S.C. § 503(b).
14 47 C.F.R. § 1.80.
15 47 U.S.C. § 503(b)(2)(D).
16 See, e.g., SBC Communications, Inc., 17 FCC Rcd 7589, 7591
(2002); Tuscola Broadcasting Co., 76 FCC 2d 367, 371 (1980).
17 The Commission noted that Section 17.23, which was cited by
the Philadelphia Office in the NOV, generally requires antenna
structure owners to comply with the FAA's painting and lighting
specifications and thus clearly covered the observed violation.
However, the Commission cited AT&T Wireless in the NAL for
violation of Section 17.51(b), which specifically requires
antenna structure owners to exhibit all high intensity and medium
intensity obstruction lighting continuously.
18 Section 503(b)(6)(B) provides that the Commission may not
issue a forfeiture against a person who does not hold a broadcast
license if the violation charged occurred more than one year
prior to the date of issuance of the required notice of apparent
liability. 47 U.S.C. § 503(b)(6)(B).
19 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
20 The Tampa Office did not issue an NOV to AT&T Wireless for
these violations.
21 See 47 C.F.R. § 17.7.
22 AT&T Wireless did not mention the fact that the Bluffdale
tower was voluntarily registered or that it had terminated the
registration for this tower in its response to the NOV.
23 See e.g., AT&T Wireless Services, Inc., 16 FCC Rcd 6805,
6806 (Enf. Bur. 2001); VoiceStream PCS I License L.L.C., 16 FCC
Rcd 7584, 7585 (Enf. Bur. 2001) (both canceling a forfeiture
proposed for failure to post an antenna structure registration
number because the tower was voluntarily registered).
24 See Streamlining the Commission's Antenna Structure Clearance
Procedure and Revision of Part 17 of the Commission's Rules
Concerning Construction, Marking and Lighting of Antenna
Structures, 11 FCC Rcd 4272 4279 (1995) (``Streamlining'').
25 Antenna structure owners were required to register existing
antenna structures during a two-year filing period between July
1, 1996 and June 30, 1998. Streamlining, 11 FCC Rcd at 4281.
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.
26 On March 12, 2002, the FCC's Chicago, Illinois Field Office
issued an NOV to AT&T Wireless for failing to post the ASR number
on or near the base of an antenna structure (ASR No. 1045450)
located in Gary, Indiana. (File No. EB-02-CH-116). On April 2,
2002, the FCC's Anchorage, Alaska Resident Agent Office
(``Anchorage Office'') issued an NOV to AT&T Wireless for failing
to notify the Commission of completion of construction of an
antenna structure (ASR No. 1223858) located in Willow, Alaska.
(File No. EB-02-AN-018). On April 8, 2002, the FCC's San
Francisco Office issued an NOV to AT&T Wireless for failing to
post the ASR number on or near the base of an antenna structure
(ASR No. 1014135) located in Rio Vista, California. (File No.
EB-02-SF-137). These NOVs were issued too late to be included in
the NAL.
27 On August 16, 2002, the Anchorage Office issued an NOV to
AT&T Wireless for failing to post the ASR number on or near the
base of an antenna structure (ASR No. 1222996) and to notify the
Commission of completion of construction of an antenna structure
located in Kenai, Alaska. (File No. EB-02-AN-072). On August
19, 2002, the Denver Office issued an NOV to AT&T Wireless for
failing to paint the coaxial cable attached to the face of an
antenna structure (ASR No. 1032069) located in Colorado Springs,
Colorado (File No. EB-02-DV-117).
28 See 47 C.F.R. § 1.1914.