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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File No. EB-00-DT-358
Detroit SMSA Limited Partnership)
Dallas, Texas ) NAL/Acct. No.
200132360001
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
18, 2001
By the District Director, Detroit Office, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Detroit SMSA Limited Partnership has
apparently violated Section 303(q) of the Communications Act of
1934 (``Act'') as amended,1 and Section 17.23 of the Commission's
Rules2 (the ``Rules'') for failure to have medium intensity
lighting installed on their antenna tower. We conclude that
Detroit SMSA Limited Partnership is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. Background
2. The Commission's antenna structure painting, lighting
and registration requirements operate in concert with the Federal
Aviation Administration's (``FAA'') regulations to insure that
antenna structures do not present hazards to air navigation.
Generally, antenna towers located close to airports or greater
than 200 feet in height require painting, lighting, or both to
insure air safety.
3. Detroit SMSA Limited Partnership is the owner of a
tower at 20175 McKernan Road in Chelsea, Michigan (located at
north latitude 42º 17' 33'', west longitude 084° 01' 55''),
antenna structure registration number 1014707. The tower exceeds
200 feet in height, and must therefore be illuminated in
accordance with Section 17.23 of the Rules. Furthermore, FCC
Form 854R, Antenna Structure Registration indicated that the
lighting was to comply with FAA Chapters 4, 8, 13 and in
accordance with FAA Circular Number 70/7460-IH. This circular
requires that the tower have medium intensity lighting during the
daytime and red flashing lighting during the nighttime.
4. On June 1, 2000, at approximately 12:55 p.m., an FCC
agent from the Detroit Office conducted an inspection of this
tower. The inspection was conducted as a result of a project to
determine overall compliance of antenna towers with the FCC
painting/lighting requirements and antenna tower registration.
During this inspection, the antenna tower number posting was
observed. It was also observed that no daytime lights were
operating. On June 6, 2000 and June 8, 2000, the tower was again
observed during the daytime with no medium intensity lighting
operating.
5. On July 25, 2000, the District Director issued an
Official Notice of Violation (``NOV'') to Detroit SMSA Limited
Partnership, 2000 West Ameritech Center Drive, Hoffman Estates,
Illinois 60195-5000, for failure to have medium intensity
lighting during the daytime. A response was received on August
21, 2000 from Carol L. Tacker, Vice President and General Counsel
for SBC Wireless, Dallas, Texas. The response indicated that the
tower did not previously have medium intensity lighting installed
on it but it was installed on August 14, 2000.
III. Discussion
6. Section 303(q) of the Act requires tower owners to
maintain the painting and/or illumination of the tower as
prescribed by the Commission. Section 17.23 of the Rules
required the antenna structure to conform with the FAA's painting
and lighting recommendations. FCC Form 854R, Antenna Structure
Registration, required the antenna tower in Chelsea, Michigan to
have dual lighting - medium intensity lighting during the daytime
and red flashing lighting during the nighttime.
7. Based on the evidence before us, we find that Detroit
SMSA Limited Partnership willfully3 and repeatedly4 violated
Section 303(q) of the Act and Section 17.23 of the Commission's
Rules by its failure to light the antenna tower with medium
intensity lighting during the daytime. The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997), recon. denied, 15 FCC Rcd 303(1999) (``Policy
Statement''), sets the base forfeiture amount at ten thousand
dollars ($10,000) for prescribed lighting. In assessing the
monetary forfeiture amount, we must take into account the
statutory factors set forth in Section 503(b)(2)(D) of the Act,5
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. Applying the Policy
Statement and the statutory factors to the instant case, we
believe that a ten thousand dollar ($10,000) monetary forfeiture
is warranted because although the record reveals that Detroit
SMSA Limited Partnership has an overall history of compliance and
showed good faith surrounding the violations by the voluntary
disclosure of information, the violation is egregious and
repeated.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the
Rules6, Detroit SMSA Limited Partnership is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for willfully and repeatedly violating
Section 303(q) of the Act and Section 17.23 of the Commission's
Rules.
9. 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, Detroit SMSA Limited
Partnership 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. 200132360001.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200132360001.
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. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.7
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Detroit SMSA Limited Partnership, 17330 Preston
Road, Suite 100A, Dallas, Texas 75252.
FEDERAL COMMUNICATIONS
COMMISSION
James A. Bridgewater
District Director
Detroit Office
_________________________
1 47 U.S.C. § 303(q).
2 47 C.F.R. § 17.23.
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies 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).
4 Section 312(f)(2), which also applies to Section 503(b),
provides: [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 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, and 1.80.
7 See 47 C.F.R. § 1.1914.