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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Haviland Telephone Co., Inc., )
) File Number EB-02-KC-
Owner of Antenna Structure ) 331
Registration )
No. 1033509 ) NAL/Acct.
) No.200232560009
Haviland, Kansas )
FRN 0005-0815-67
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 13,
2002
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
·
1. In this Notice of Apparent Liability for
Forfeiture, we find that Haviland Telephone Co., Inc.
(``Haviland''), owner of antenna structure number 1033509 at
Haviland, Kansas, willfully violated Section 17.21 of the
Commission's Rules (``Rules''),1 by failing to exhibit the
prescribed painting. We find Haviland apparently liable for
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On May 16, 2002, an agent of the FCC's Kansas City
Field Office inspected Haviland's antenna structure number
1033509 in Haviland, Kansas. The structure's height was 122
meters (400 feet), thus requiring painting and lighting.
The antenna structure was unpainted, there were no daytime
obstruction lights in operation, and there was no antenna
structure registration (``ASR'') number visible at or near
the base of the tower. The ASR and the Federal Aviation
Administration (``FAA'') records for this structure both
prescribe that red obstruction lighting and paint be
exhibited on the structure.
III. DISCUSSION
3. Section 17.21 of the Rules requires that antenna
structures shall be painted and lighted when they exceed
60.96 meters (200 feet) in height above the ground or they
require special aeronautical study. On May 16, 2002,
Haviland's antenna structure number 1033509 required
painting because it exceeded 200 feet in height and painting
was prescribed by both the FCC and FAA, yet the structure
was unpainted.
Based on the evidence before us, we find that, on May
16, 2002, Haviland willfully2 violated Section 17.21 of the
Rules by failing to paint the tower as required.
4. Pursuant to Section 1.80(b)(4) of the Rules,3 the
base forfeiture amount for failure to comply with prescribed
painting 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
5. 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 Haviland Telephone Co., Inc. is hereby NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for willful violation of
Section 17.21 of the Rules by failing to exhibit the
prescribed painting on its antenna structure.
6. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules, within thirty days of the
RELEASE DATE of this NOTICE OF APPARENT LIABILITY, May 23,
2002, Haviland Telephone Co., Inc. SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
7. 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
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.7
8. 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. and FRN referenced above.
9. 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.
10. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by regular mail and
Certified Mail Return Receipt Requested to Haviland
Telephone Co., Inc., P.O. Box 308, Haviland, Kansas 67059-
0308.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City Office
_________________________
1 47 C.F.R § 17.21.
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
(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.