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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-658
)
Southwestern Bell Wireless, LLC ) NAL/Acct. No.200232560031
Owner of Antenna Structure # )
1226815 located ) FRN 0004-2495-95
near Fair Grove, Missouri )
Dallas, Texas
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 5, 2002
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Southwestern Bell Wireless, LCC, owner of
antenna structure #1226815, apparently liable for a forfeiture in
the amount of ten thousand dollars ($10,000) for willful
violation of Section 17.51(b) of the Commission's Rules
(``Rules'').1 Specifically, we find Southwestern Bell Wireless,
LLC apparently liable for failure to continuously exhibit all
high intensity and medium intensity obstruction lighting.
II. BACKGROUND
2. On August 16, 2002, an agent of the Commission's Kansas
City Field Office inspected the antenna structure associated with
FCC Antenna Structure Registration (``ASR'') #1226815 and located
near Fair Grove, Missouri. At the time of inspection at 11:00
a.m., the unpainted structure had no medium or high intensity
obstruction lighting in operation.
3. Later on the same date, the agent determined from the
Commission's ASR Database that the antenna structure was
registered to Southwestern Bell Wireless, LLC. The registration
included requirements to maintain a dual lighting system using
medium intensity obstruction lighting during daylight operation
and red lights and beacon during nighttime operation. At about
12:45 p.m., the agent telephoned the listed contact telephone
number for Southwestern Bell Wireless, LLC and spoke to a
representative who stated she would check on the situation. The
agent also telephoned the Federal Aviation Administration
(``FAA'') Flight Service Station (``FSS'') in Columbia, Missouri
and found no Notice to Airman (``NOTAM'') had been issued for
that antenna structure. Another representative of Southwestern
Bell Wireless, LLC telephoned and spoke to the agent. The
representative stated that the Southwestern Bell Wireless, LLC
Operations Center had not received an alarm on that antenna
structure but that a NOTAM had been issued. She further stated
that the obstruction lighting on the structure was out as well as
the automatic alarm system.
III. DISCUSSION
4. Section 17.51(b) requires that all high intensity and
medium intensity obstruction lighting be exhibited continuously
unless otherwise specified. According to the antenna structure
registration #1226815, this structure is owned by Southwestern
Bell Wireless, LLC and is required to exhibit medium intensity
obstruction lighting during daylight hours. On August 16, 2002,
no obstruction lighting was observed in operation on antenna
structure #1226815. Over one hour and forty-five minutes after
the lighting was first observed out, Southwestern Bell Wireless,
LLC had not notified the FAA of the light outage.2 In addition,
Southwestern Bell Wireless, LLC failed to inspect its antenna
structure lights and associated control equipment in that the
structure's automatic alarm system failed.3
5. Based on the evidence before us, we find Southwestern
Bell Wireless, LLC willfully4 violated Section 17.51(b) of the
Rules by failing to continuously exhibit all required medium
intensity obstruction lighting.
6. Pursuant to Section 1.80(b)(4) of the Rules,5 the base
forfeiture amount for failure to comply with prescribed antenna
structure lighting 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.6 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,7 and Sections 0.111, 0.311 and 1.80 of the
Rules,8 Southwestern Bell Wireless, LLC is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for willful violation of Section
17.51(b) of the Rules by failing to continuously exhibit all
medium intensity obstruction lighting.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Southwestern Bell Wireless, LLC 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. 20554.9
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. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Southwestern Bell Wireless, LLC. 17330 Preston Road, Suite
100A, Dallas, Texas 75252.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director, Kansas City Office,
Enforcement Bureau
_________________________
1 47 C.F.R. § 17.51(b).
2 The owner of a registered antenna structure must report
immediately to the nearest FAA FSS any known improper functioning
of any top light or flashing light that cannot be corrected
within 30 minutes. See 47 C.F.R. § 17.48(a).
3 See 47 C.F.R. § 17.48.
4 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).
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.