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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Gresham Communications, Inc. ) File Number EB-02-AT-326
)
Owner of Antenna Structure ) NAL/Acct. No.200332480005
located at 32° 52' 52'' North )
Latitude by 80° 41' 24'' West ) FRN 0007-7826-38
Longitude in Walterboro, South )
Carolina )
Charleston, South Carolina
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October
30, 2002
By the Enforcement Bureau, Atlanta Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Gresham Communications, Inc.
(``Gresham''), owner of the antenna structure located at
coordinates 32° 52' 52'' North Latitude and 80° 41' 24'' West
Longitude, in Walterboro, South Carolina, willfully and
repeatedly violated Sections 17.4(a), and 17.51 of the
Commission's Rules (``Rules'')1 by failing to register its
antenna structure with the Commission and failing to exhibit
prescribed antenna structure lighting. We find Gresham
apparently liable for forfeiture in the amount of thirteen
thousand dollars ($13,000).
II. BACKGROUND
2. On May 5, 2000, the Commission's Atlanta Field Office
(``Atlanta Office'') issued a Notice of Violation (``NOV'') to
William Saunders, Gresham's owner, citing the following
violations regarding Gresham's antenna structure in Walterboro,
South Carolina: failure to register the antenna structure in the
owner's name, failure to exhibit prescribed antenna structure
lighting, and failure to notify the Federal Aviation
Administration (``FAA'') of a light outage on the structure. Mr.
Saunders replied to the NOV stating that the light outage had
been repaired and provided a copy of an application for
registration of the antenna structure which he stated was filed
June 19, 2000. There is no record of an Antenna Structure
Registration (``ASR'') number issued to Mr. Saunders or Gresham
for that structure.
3. On the evenings of September 18 and 19, 2002, in
response to a complaint of a light outage occurring for the past
two years, an agent of the Atlanta Office observed the antenna
structure located at 32° 52' 52'' North Latitude and 80° 41' 24''
West Longitude, in Walterboro, South Carolina. The agent
verified that the top beacon was extinguished on both evenings
between local sunset and sunrise. The agent contacted the FAA
Flight Service Station and determined that no light outage for
that structure had been reported.
4. The FCC ASR database showed the registered owner of the
structure to be John Pembroke. The agent contacted Mr.
Pembroke's widow who stated that Mr. Pembroke had not owned the
tower but had leased it from Gresham who owned the tower. M.
Scott Johnson, Gresham's Washington counsel, stated that William
Saunders owned Gresham, that Gresham owned the antenna structure,
and that Gresham was unaware of any light outage but would notify
the FAA of the outage. Records from the county tax assessor
verified that Gresham paid taxes on the structure and the land
surrounding it.
III. DISCUSSION
5. Section 17.4(a) of the Rules provides that, effective
July 1, 1996, owners of any existing antenna structures that
require notification to the FAA must register the structure with
the Commission. Section 17.4(a)(2) of the Rules provides that,
effective July 1, 1998, owners of an antenna structure that had
been assigned painting or lighting requirements prior to July 1,
1996, must register the structure with the Commission.
Gresham's antenna structure required notification to the FAA
because the structure exceeded 200 feet in height.2 Therefore,
Gresham's antenna structure required Commission registration.
From at least May 5, 2000, to September 19, 2002, Gresham failed
to register its antenna structure with the Commission.
6. Section 17.51 of the Rules requires that all red
obstruction lighting be exhibited from sunset to sunrise. FAA
specifications for Gresham's antenna structure require the
structure to be painted and exhibit red obstruction lights at
night. On September 18 and 19, 2002, Gresham failed to exhibit
the required red obstruction lighting on its antenna structure
between sunset and sunrise. In addition, Gresham failed to
notify the FAA of the light outage.3
7. Based on the evidence before us, we find that Gresham
willfully4 and repeatedly5 violated Sections 17.4(a) and 17.51 of
the Rules by failing to register its antenna structure with the
Commission and failing to exhibit required antenna structure
lighting.
8. Pursuant to Section 1.80(b)(4) of the Commission's
Rules,6 the base forfeiture amounts for the violations cited in
this NAL are $3,000 for failure to register an antenna structure
(failure to file required forms or information) and $10,000 for
failure to comply with prescribed lighting. Section
503(b)(2)(D) of the Communications Act of 1934, as amended
(``Act''),7 requires us 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 other such matters as
justice may require.'' Considering the record as a whole and the
statutory factors listed above, this case warrants a forfeiture
in the amount of $13,000.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,9 Gresham Communications, Inc. is hereby
NOTIFIED of his APPARENT LIABILITY FOR A FORFEITURE in the amount
of thirteen thousand dollars ($13,000) for repeatedly and
willfully violating Sections 17.4(a) and 17.51 of the
Commission's Rules by failing to register its antenna structure
and failing to maintain prescribed lighting.
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NAL, Gresham Communications, Inc. 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. 20554.10
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 the 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
5039b) 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 Gresham Communications, Inc., P.O. Box 30999; Charleston, SC
29407; and an additional shall be sent by regular mail and
Certified Mail Return Receipt Requested to Gresham's attorney, M.
Scott Johnson, 1301 K Street, NW, Suite 900 East Tower,
Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
Fred L. Broce
District Director
Atlanta Office
Attachment A
_________________________
1 47 C.F.R. §§ 17.4(a) and 17.51.
2 See 47 C.F.R. § 17.7(a).
3 Antenna structure owners must immediately notify the FAA of any
known improper functioning of antenna structure top or flashing
lights that cannot be corrected within 30 minutes. See 47 C.F.R.
§ 17.48(a).
4 Section 312(f)(1) of the Communications Act of 1934, as amended
(``Act''), 47 U.S.C. § 312(f)(1), which applies equally to
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).
5 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).
6 47 C.F.R. § 1.80(b)(4).
7 47 U.S.C. § 503(b)(2(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 See 47 C.F.R. § 1.1914.