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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Hill Country Real Estate ) File Number EB-02-DL-078
Development Corp. ) NAL/Acct.No. 200232500008
Owner of Antenna Structure ) FRN #0006-7409-14
#1061297 in Junction, Texas )
Chevy Chase, Maryland )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 30, 2002
By the Enforcement Bureau, Dallas Office:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Hill Country Real Estate Development
Corporation (``Hill Country''), owner of antenna structure
#1061297, apparently liable for a forfeiture in the amount of
thirteen thousand dollars ($13,000) for willful and repeated
violations of Sections 17.50, 17.51, and 17.57 of the
Commission's Rules (``Rules'').1 Specifically, we find Hill
Country Real Estate Development Corporation apparently liable for
failure to repaint the structure as often as necessary to
maintain good visibility, failure to exhibit required obstruction
lighting, and failure to notify the Commission of change in
2. On February 15, 2002, Greg Albritton, a representative
of Hill Country, stated that Hill Country's antenna structure
#1061297 was poorly painted and the lights were not functioning.
Furthermore, he stated that approximately four months earlier,
Hill Country had attempted to refurbish the structure, but had
mistakenly repainted and replaced lights on an adjacent tower not
owned by Hill Country. Reports from the Federal Aviation
Administration (``FAA'') to the Commission's Dallas Field Office
(``Dallas Office'') showed no evidence that a report of a light
outage for this structure had been made to the FAA. In addition,
the Commission's Antenna Structure Registration (``ASR'')
database listed the previous owner, and not Hill Country, as the
registered owner of this structure.
3. On April 2, 2002, the Dallas Office issued a Notice of
Violation to Hill Country Real Estate Development Corporation for
failure to notify the FAA upon determining that all flashing
obstruction lights were not operating on antenna structure
#1061297, failure to repaint the structure as often as necessary
to maintain good visibility, failure to replace or repair
structure lights, and failure to notify the Commission upon any
change in ownership information. Hill Country responded to this
Notice of Violation on April 22, 2002, stating in part: ``Upon
its purchase of the tower, Hill required [the previous owner] to
remove the repeater equipment within 30 days of the date of
purchase agreement. The equipment removal left the tower
standing 199 feet tall, thus removing the tower from the purview
of the Commission's lighting and marking requirements. A TOWAIR
determination performed on the Commission's web site indicates
this structure, at its actual height of 199 feet, does not
require registration [and thus did not require painting or
lighting or notification to the FAA]. Thus, Hill did not violate
[the quoted sections of the Commission's Rules].'' This response
included a printout of Hill Country's referenced TOWAIR
Determination Results indicating that Hill Country had
incorrectly entered the ground elevation above mean sea level as
``NaN'' or zero meters above mean sea level. In addition, Hill
Country stated that they purchased the structure on April 30,
2001. A bill of sale obtained from the previous owner showed
Hill Country purchased the tower on March 16, 2001. The FCC's
ASR database showed that Hill Country notified the Commission of
the ownership change on March 20, 2002.
4. On May 29, 2002, an agent from the Dallas Office
inspected Hill Country's antenna structure # 1061297. The
structure was rusty orange over its entire length with no paint
banding visible. At 9:15 PM CST, the agent observed that all
lights on the tower structure were inoperative.
5. On June 10, 2002, the Dallas Office received a follow-
up response from Hill Country stating they had requested an FAA
Determination of ``No Hazard'' and that an FAA Determination
issued on May 6, 2002 stated that the structure did not present a
hazard to air navigation provided that the structure be marked
and/or lighted in accordance with FAA Advisory Circular 70/7460-
1K, Obstruction Marking and Lighting, Chapter 3 (Marked), 4, 5
(Red), & 12. Hill Country stated in this response: ``Pursuant to
the FAA's Determination, Hill has commenced the process of having
the Tower marked and lighted.'' Subsequent correspondence from
Hill Country indicated that the tower was properly lit as of June
28, 2002 and properly marked on or about July 6, 2002.
6. Section 17.50 of the Rules requires antenna structures
requiring painting under this part to be cleaned or repainted as
often as necessary to maintain good visibility. Section 17.51 of
the Rules requires that red obstruction lighting be exhibited
from sunset to sunrise. Hill Country's antenna structure
#1061297 was required to be painted and lighted as prescribed in
the structure's FAA Determination of ``No Hazard'' and the FCC
Antenna Structure Registration.2 These requirements were in
effect prior to Hill Country reducing the structure height. Hill
Country claimed that the reduction in the structure height to 199
feet removed the painting and lighting requirements for the
structure. The reduction in the structure height to 199 feet did
not alter the structure's painting and lighting requirements as
confirmed by the FAA Determination issued on May 6, 2002. Even
after the May 6, 2002, FAA Determination, Hill Country did not
repaint and did not repair the lights on the structure until on
or about July 6, 2002, and June 28, 2002, respectively.
Therefore, from at least February 15, 2002, until on or about
July 6, 2002, Hill Country failed to maintain good visibility of
the structure's required obstruction markings. From at least
February 15, 2002, until on or about June 28, 2002, Hill Country
failed to exhibit the required obstruction lights. In addition,
Hill Country failed to report the light outage to the FAA.3
7. Section 17.57 of the Rules requires the owner of an
antenna structure for which an Antenna Structure Registration
Number has been obtained to immediately notify the Commission
upon any change in ownership information. From the date of
purchase of the antenna supporting structure on March 16, 2001
until March 20, 2002, Hill Country did not notify the Commission
of the change in ownership information.
8. Based on the evidence before us, we find Hill Country
Real Estate Development Corporation repeatedly4 and willfully5
violated Sections 17.50, 17.51 and 17.57 of the Rules by failing
to repaint the structure as often as necessary to maintain good
visibility, failing to exhibit required obstruction lighting, and
failing to notify the Commission upon any change in ownership
9. Pursuant to Section 1.80(b)(4) of the Commission's
Rules,6 the base forfeiture amount for failure to file required
forms or information, such as the required notification to the
FCC of changes in ownership information, is $3,000, and the base
forfeiture amount for failure to comply with prescribed lighting
and/or marking specifications is $10,000. Section 503(b)(2)(D)
of the Communications Act of 1934, as amended (``Act''), 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.''7
Considering the entire record, and applying the statutory factors
listed above, this case warrants a $13,000 forfeiture.
IV. ORDERING CLAUSES
10. 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
Rules,9 Hill Country Real Estate Development Corporation is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of thirteen thousand dollars ($13,000) for willful and
repeated violation of Sections 17.50, 17.51 and 17.57 of the
Rules by failing to repaint the structure as often as necessary
to maintain good visibility, failing to exhibit required
obstruction lighting, and failing to notify the Commission upon
any change in ownership information.
11. 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, Hill Country Real Estate Development Corporation SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
12. 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
13. 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.
14. 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
15. IT IS
FURTHER ORDERED THAT a copy of this NAL shall be sent by regular
mail and Certified Mail Return Receipt Requested to Hill Country
Real Estate Development Corporation, 5454 Wisconsin Ave., Suite
720, Chevy Chase, MD 20815.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director, Dallas Office
1 47 C.F.R. §§ 17.50, 17.51, & 17.57.
2 The FAA's painting and lighting recommendations set forth on
the structure's FAA determination of ``no hazard'' are mandatory.
See 47 C.F.R. § 17.23.
3 See 47 C.F.R. § 17.57.
4 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies equally to Section 503(b) of the Act, provides that
``[t]he 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.''
5 Section 312(f)(1) of the 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).
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.