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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-657
Wichita SMSA Tower Holdings, LLC ) NAL-
Owner of Antenna Structure Number ) /Acct. No. 200232560032
1032091 in Wichita, KS )
Dallas, Texas ) FRN 0001658657
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 25 , 2002
By the Enforcement Bureau, Kansas City Office:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Wichita SMSA Tower Holdings, LLC
(``Wichita''), owner of antenna structure number 1032091 in
Wichita, Kansas, 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 Wichita SMSA Tower Holdings, LLC apparently
liable for its failure to continuously exhibit all medium
intensity obstruction lighting.
2. On August 14, 2002, an agent from the FCC Enforcement
Bureau, Kansas City Field Office observed that antenna structure
number 1032091 was not illuminated per its assigned lighting
specifications in that the top strobe light was not operational
on the antenna structure. According to the Federal Aviation
Administration (``FAA''), they had not received a report of the
light outage and no Notice to Airmen (``NOTAM'') had been issued.
3. On August 22, 2002, Ms. Kellye Abernathy, a
representative of Wichita, stated that in early 1995, Wichita
received approval from the FAA to change from painting and
lighting to dual lighting and, at that time, a strobe light was
added to the tower but the light was never wired into the
structure's monitoring system. Once the light was wired into the
system, which occurred after the FCC agent contacted Ms.
Abernathy, the monitoring alarm went off indicating that the
light was burned out. She further indicated that the problem was
a misunderstanding by the technician at the tower who was unaware
that there should be a daytime strobe.
4. Section 17.51(b) requires that all high intensity and
medium intensity obstruction lighting be exhibited continuously
unless otherwise specified. The antenna structure owner is
responsible for maintaining the structure's lighting.2 In
addition, the antenna structure owner shall report immediately to
the FAA any known improper functioning of a structure's top light
or any flashing light.3 On August 14, 2002, Wichita failed to
exhibit medium intensity obstruction lighting on its antenna
structure number 1032091, in accordance with its antenna
structure registration and FAA requirements. Additionally,
Wichita had not filed a report of a light outage on this
structure with the FAA.
5. Based on the evidence before us, we find Wichita SMSA
Tower Holdings, LLC willfully4 violated Section 17.51(b) of the
Rules by failing to exhibit required tower lights on its antenna
6. Pursuant to Section 1.80(b)(4) of the Rules,5 the base
forfeiture amount for failure to exhibit obstruction 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 Wichita SMSA Tower Holdings, 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 exhibit obstruction lighting
on structure 1032091 in Wichita, Kansas.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Wichita SMSA Tower Holdings, 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
12. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Wichita SMSA Tower Holdings, LLC 17330 Preston Road, Suite
100A, Dallas, TX 75252.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director, Kansas City Office
1 47 C.F.R. § 17.51(b).
2 See 47 C.F.R. § 17.6(a).
3 See 47 C.F.R. § 17.48(a).
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.