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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-DL-191
)
Access.1 Communications Corp. ) NAL/Acct. No.200232500009
Owner of Antenna Supporting )
Structure 1051379 located in ) FRN 0006-1618-55
Marshall, Texas )
New York, New York
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 30, 2002
By the Enforcement Bureau, Dallas Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Access.1 Communications Corp. (``Access.1''),
willfully violated Section 17.50 of the Commission's Rules
(``Rules'')1 by failing to clean or repaint its antenna structure
as often as necessary to maintain good visibility. We conclude
that Access.1 Communications Corp. is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On or about August 1, 2000, Access.1 acquired the
antenna supporting structure number 1051379 located in Marshall,
Texas. Both the FCC Rules and the Federal Aviation
Administration specifications for this structure required the
structure to be painted.
3. On April 17, 2002, an agent from the Commission's
Dallas Office noted an antenna structure at or near geographic
coordinates 32° 32' 26''N / 094° 24' 4''W in Marshall, Texas.
The structure's required obstruction marking appeared to be
deteriorating making it difficult to distinguish the orange and
white bands.
4. On May 5, 2002, the agent returned to the Marshall,
Texas area to inspect the antenna structure noted on April 17,
2002. The required paint bands could not be distinguished at
approximately one fourth of a mile, resulting in poor visibility
of the structure. The FCC's Antenna Structure Registration
database showed Access.1 as the registered owner of this
structure.
III. DISCUSSION
5. Section 17.50 of the Rules states that antenna
structures requiring painting under this part shall be cleaned or
painted as often as necessary to maintain good visibility.
Access.1 is the registered owner of antenna structure number
1051379 and is responsible for maintaining the structure's
lighting and marking. On May 5, 2002, Access.1 failed to maintain
good visibility of its antenna structure number 1051379 located
in Marshall, Texas.
6. Based on the evidence before us, we find Access.1
Communications Corp. willfully2 violated Section 17.50 of the
Rules.
7. Pursuant to Section 1.80(b)(4) of the Rules,3 the base
forfeiture amount for failure to comply with prescribed 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.4 Considering
the entire record and applying the factors listed above, this
case warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,5 and Sections 0.111, 0.311 and 1.80 of the
Rules,6 Access.1 Communications Corp. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for willful violation of Section 17.50 of the
Rules.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Access.1 Communications Corp. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10. 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. 20554.7
11. 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.
12. 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.
13. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Access.1 Communications Corp., 505 Eighth Avenue, Ninth Floor,
New York, New York 10018.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
Dallas Office, Enforcement Bureau
_________________________
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 47 C.F.R. § 1.80(b)(4).
4 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80.
7 See 47 C.F.R. § 1.1914.