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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Hoffman Communications, ) File Number EB-02-NF-130
Incorporated ) NAL/Acct. No. 200332640002
Owner of Antenna Structure ) FRN 5011671
1040998
Chester, Virginia
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 5, 2002
By the Enforcement Bureau, Norfolk Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Hoffman Communications, Incorporated
(``HCI''), owner of antenna structure number 1040998 in Chester,
Virginia, apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000) for willful and repeated violation of
Section 17.50 of the Commission's Rules (``Rules'').1
Specifically, we find HCI apparently liable for failing to
maintain good visibility of its antenna structure.
II. BACKGROUND
2. HCI obtained an Antenna Structure Registration
(``ASR'') number of 1040998 for its structure located at 10600
Jefferson Davis Highway, Chester, Virginia, at the North American
Datum 1927 coordinates of North 37 22' 52" and West 077 25' 24."
The ASR listed the structure height of 109.3 meters above ground
level and it prescribed painting and lighting in accordance with
the Federal Aviation Administration Circular Number 70/7460-1J,
Chapters 3, 4, 5 and 13.
3. On March 11, 1999, an agent of the Commission's Norfolk
Resident Agent Office (``Norfolk Office'') inspected HCI's
antenna structure number 1040998. The agent found that the
structure's paint provided poor visibility. On April 13, 1999,
the Norfolk Office released a Notice of Violation to HCI citing,
inter alia, violation of Section 17.50 of the Rules for failing
to clean or repaint its antenna structure to maintain good
visibility. In response, HCI wrote that it planned to replace
its antenna structure.
4. On August 20, 2002, an agent from the Norfolk Office
inspected HCI's antenna structure number 1040998. The agent
found the structure's paint deteriorated such that the
contrasting color bands could not be easily distinguished,
resulting in poor visibility of the structure. HCI's vice-
president stated that the structure's markings had not been
repainted since the March 11, 1999, inspection because HCI could
not find a tower company that would climb the structure.
III. DISCUSSION
5. Section 17.50 of the Rules requires antenna structure
owners to clean or repaint their structures as often as necessary
to maintain good visibility when painting is required. HCI's
structure required painting, but from March 19, 1999 to August
20, 2002, HCI failed to repaint it to maintain good visibility.
6. Based on the evidence before us, we find HCI willfully2
and repeatedly3 violated Section 17.50 of the Rules by failing to
clean or repaint its antenna structure to maintain good
visibility.
7. Pursuant to Section 1.80(b)(4) of the Rules,4 the base
forfeiture amount for failing to comply with prescribed lighting
or 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)(D) of the Communications Act of 1934,
as amended (``Act''), which include 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.5 Considering the entire record and applying the factors
listed above, this case warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,6 and Sections 0.111, 0.311 and 1.80 of the
Rules,7 HCI is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
willful and repeated violation of Section 17.50 of the Rules by
failing to clean or repaint its antenna structure to maintain
good visibility.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
HCI SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
10. 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. and FRN referenced above. Requests for payment of
the full amount of this NAL under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.8
11. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE NAL/Acct.
No. referenced above.
12. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
13. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
14. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Hoffman Communications, Incorporated, PO Box 676, Chester, VA
23831.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Husnay
Resident Agent, Norfolk Office,
Enforcement Bureau Hoffman Communications Incorporated
PO Box 676
Chester, VA 23831
Hoffman Communications Incorporated
PO Box 676
Chester, VA 23831
_________________________
1 47 C.F.R. § 17.50.
2 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 4387-88 (1991).
3 The 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.'' 47 U.S.C. §
312(f)(2).
4 47 C.F.R. § 1.80(b)(4).
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.