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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-795
)
SBA Towers, Inc. ) NAL/Acct. No.200332560007
Owner of Antenna Structure )
#1045818 near Huntsdale, Missouri ) FRN 0005-7932-60
Boca Raton, Florida )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 3, 2002
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find SBA Towers, Inc. (``SBA''),
owner of antenna structure #1045818, 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 SBA
apparently liable for failure to clean and repaint its
antenna structure to maintain good visibility.
II. BACKGROUND
2. On November 12, 2002, the antenna structure
bearing FCC antenna structure registration (``ASR'') number
1045818 and located near Huntsdale, Missouri, was inspected
by an agent of the Commission's Kansas City Field Office
(``Kansas City Office''). At the time of the inspection,
black cabling on the outside of the structure covered the
painted metal tower reducing visibility of the structure.
The Commission's ASR database showed this structure is
registered to SBA.
3. On November 20, 2002, an agent of the Kansas
City Office contacted SBA and spoke to two SBA
representatives who confirmed that SBA owned the antenna
structure with ASR number 1045818. Mr. Ed Roach, one of the
SBA representatives, stated that they were aware of the
painting problem and had just received the Federal Aviation
Administration determination allowing them to change from
painting to strobe lighting. In a follow-up conversation on
November 22, 2002, Mr. Roach stated that the local
government jurisdiction would not allow strobe lighting, and
that SBA was in the process of hiring a firm to paint the
structure.
III. DISCUSSION
4. Section 17.50 requires antenna structure owners to
clean or repaint the structure as necessary to maintain good
visibility. On November 12, 2002, and at least until
November 22, 2002, SBA's antenna structure number 1045818
had black cabling on the tower face obscuring the
structure's paint and causing the structure to have an
overall dark appearance. As a result of the black cabling,
the structure was not clearly visible.
5. Based on the evidence before us, we find SBA
Towers, Inc. willfully2 and repeatedly3 violated Section
17.50 of the Rules by failing to repaint its antenna
structure as necessary to maintain good visibility.
6. Pursuant to Section 1.80(b)(4) of the Rules,4 the
base forfeiture amount for failure to comply with prescribed
lighting and 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
7. 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 SBA Towers, Inc. 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
and repaint its antenna structure to maintain good
visibility.
8. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, SBA Towers, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
9. 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
10. 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.
11. 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.
12. 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.
13. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to 5900 Broken Sound Parkway NW, Boca
Raton, FL, 33487.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
Kansas City Office, Enforcement
Bureau
Attachment
_________________________
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.