Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-755
)
Steven D. Semon, Jackie L. Semon ) NAL/Acct. No. 200332560004
dba Sedalia Smiles, Owner of )
Antenna Structure #1010169 ) FRN 0005-8717-93
near Everton, Missouri )
Sedalia, Missouri
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 5, 2002
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Steven D. Semon and Jackie L.
Semon dba Sedalia Smiles (``Sedalia Smiles''), owner of
antenna structure #1010169 near Everton, Missouri, willfully
and repeatedly violated Section 17.51(b) of the Commission's
Rules (``Rules'')1 by failing to exhibit lighting. We
conclude that Sedalia Smiles is apparently liable for
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On September 17, 2002, the Commission's Kansas
City Field Office (``Kansas City Office'') received
information of a citizen's report regarding antenna
structure #1010169 that had been completely dark for an
extended period of time. The citizen reported that the
structure's lights were observed out for at least a week
and, using information posted at the structure, he had
placed a call on September 10, 2002, to the posted number
advising of the light outage with no results. The citizen
provided a copy of his telephone bill showing a call made on
September 10, 2002, to the contact number for the structure.
The Commission's Antenna Structure Registration (``ASR'')
database showed the reported structure number 1010169 is
owned by Sedalia Smiles. The FCC Enforcement Bureau's
Communications and Crisis Management Center (``CCMC'')
placed a call to the contact number in the ASR database.
Mr. Jerry Visentin, of Sedalia Smiles, stated that the
lighting outage would be reported to the structure owner who
was currently out of town and that tower lighting repair
parts had been received for the structure. Mr. Visentin
called back to the CMCC a short time later to obtain the
Federal Aviation Administration (``FAA'') phone number that
would allow reporting of the lighting malfunction.
3. On September 18, 2002, an agent from the Kansas
City Office interviewed Mr. Visentin of Sedalia Smiles by
telephone. Mr. Visentin stated that Sedalia Smiles had not
contacted the FAA until they were notified of the light
outage by the FCC on September, 17, 2002. Also on September
18, 2002, the agent interviewed by telephone Mr. Steven
Semon of Sedalia Smiles. Mr. Semon stated that the
structure's lighting was supposed to be checked visually by
a person living close to the tower, that Sedalia Smiles was
informed by the citizen of the light outage on September 10,
2002, but that no report had been made to the FAA until
contacted by the FCC on September 17, 2002.
III. DISCUSSION
·
7. Section 17.51(b) of the Rules requires all high
intensity and medium intensity obstruction lighting be
exhibited continuously unless otherwise specified. FAA
specifications and the FCC ASR for this structure require
lighting. Sedalia Smiles failed to exhibit the required
obstruction lighting from at least September 10, 2002 to
September 17, 2002. In addition, Sedalia Smiles failed to
immediately notify the FAA of the light outage after being
informed of the outage on September 10, 2002.2
8. Based on the evidence before us, we find Sedalia
Smiles willfully3 and repeatedly4 violated Section 17.51(b)
of the Rules by failing to exhibit required obstruction
lighting from at least September 10, 2002, until September
17, 2002.
9. Pursuant to Section 1.80(b)(4) of the Rules, the
base forfeiture amount for failure to exhibit obstruction
lighting is $10,000.5 In assessing the monetary forfeiture
amount, we must take into account the statutory factors set
forth in Section 503(b)(2)(D) of the Communications Act of
1934, as amended, (``Act''),6 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. Considering the entire
record and applying the factors listed above, this case
warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,7 and Sections 0.111, 0.311 and
1.80 of the Rules,8 Sedalia Smiles 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 17.51(b) of the Rules by failing to
exhibit the required antenna structure lighting.
10. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Sedalia Smiles SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
11. 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. 20554.9
12. 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.
13. 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.
14. 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.
15. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Steven D. Semon and Jackie L. Semon dba
Sedalia Smiles, 720 W. Fifth St., Sedalia, MO. 65301.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City Office
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. § 17.51(b).
2 Owners of registered antenna structures must immediately
notify the FAA of any known improper functioning of any top
or flashing light. See 47 C.F.R. § 17.48(a).
3 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).
4 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).
5 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.