Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Rio Grande Transmission, Inc. ) File No. EB-00-DV-426
Owner of Antenna Structure 1003282 ) NAL/Acct. No.
Apache Springs, New Mexico )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 26,
By the District Director, Denver Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Rio Grande Transmission, Inc. (``Rio
Grande''), has apparently violated Section 303(q) of the
Communications Act of 1934 (``Act'') as amended,1 Sections 17.23
and 17.57 of the Commission's Rules2 (the ``Rules'') for failure
to comply with painting and lighting specifications on an antenna
structure and failure to notify the Commission immediately of a
change in structure height. We conclude that Rio Grande
Transmission, Inc., is apparently liable for a forfeiture in the
amount of thirteen thousand dollars ($13,000).
2. Rio Grande was the owner of an antenna structure
located 8 miles south of Apache Springs and ¼ mile west of State
Highway 84 in New Mexico, located at north latitude 35º 19' 20'',
west longitude 105° 09' 23'', antenna structure registration
number 1003282. The structure exceeded 200 feet in height and
was required to be painted and illuminated in accordance with
Section 17.23 of the Rules. Specifically, FCC Form 854R, Antenna
Structure Registration ("ASR"), indicated that the painting and
lighting was to comply with Chapters 3, 4, 5, and 9 of FAA
Advisory Circular 70/7460-1G.
3. On July 19, 2000, at approximately 9:10 a.m., an FCC
Agent from the Denver Office conducted an inspection of this
structure. The inspection was conducted to ensure compliance
with the FCC painting and lighting requirements and antenna
structure registration. During this inspection, the antenna
structure number was not found posted on or near the base of the
structure. It was also observed that the structure was not
painted and had no lighting.
4. On September 6, 2000, the Denver Office issued an
Official Notice of Violation (``NOV'') to Rio Grande, 5000 Plaza
on the Lake, Suite 200, Austin, TX 78746, for failure to post the
antenna structure registration and failure to comply with the
painting and lighting specifications indicated on the ASR. On
September 13, 2000, the Denver Office received the September 6,
2000, NOV returned "Not Deliverable as Addressed Return to
Sender". On September 14, 2000, an Agent with the Denver Office
contacted Mr. Allen Zamorsky, with Rio Grande, and confirmed that
the address of record with the Commission was not correct, and
that Rio Grande had not updated the antenna structure
registration ownership information.
5. On September 21, 2000, the Denver Office issued Rio
Grande an Official NOV, for failure to notify the Commission
using FCC Form 854 regarding the change in ownership information.
A separate Notice was also issued, granting an extension of time
to reply to the NOV issued on September 6, 2000. Responses to
both NOV's were required by October 6, 2000.
6. A response to the NOV's, dated October 20, 2000, was
received on October 27, 2000, from Marie E. Casar, Right of Way
and Permitting Specialist for Broadwing3, Austin, Texas. The
response indicated that Rio Grande removed the uppermost antenna
from the top of the structure in October, 2000, subsequent to
receipt of the Commission's NOV's, and that painting and lighting
specifications no longer applied since the structure was now less
than 200 feet.
7. Broadwing sent the Denver Office a follow-up response,
dated October 30, 2000, reaffirming that the tower height was now
195 feet, and "no painting or lighting is required at this site".
Pictures were provided of the structure before and after removal
of the top antenna.
8. Rio Grande sold the subject structure to L B Tower
Company, LLC in November, 2000. However, this does not absolve
Rio Grande of the potential hazard to air navigation by non-
compliance with the Commission's Rules.
9. The Commission's antenna structure painting, lighting
and registration requirements operate in concert with the Federal
Aviation Administration's (``FAA'') regulations to ensure that
antenna structures do not present hazards to air navigation.
Generally, antenna structures located close to airports or
greater than 200 feet in height require painting, lighting, or
both to ensure air safety.
10. Section 303(q) of the Act requires antenna structure
owners to maintain the painting and/or illumination of the
structure as prescribed by the Commission. Section 17.23 of the
Rules required the antenna structure to conform with the FAA's
painting and lighting specifications. FCC Form 854R, Antenna
Structure Registration, required the antenna structure in Apache
Springs, New Mexico, to comply with FAA Chapters 3, 4, 5, and 9
of circular 70/7460-1G.
11. Any alterations made to the structure must be approved
by the FAA in accordance with Section 17.23 and any approved
changes in structure height must be filed immediately on FCC Form
854 in accordance with Section 17.57.
12. The responses, dated October 20, 2000, and October 30,
2000, from Broadwing, signed by Ms. Casar, states that the top
antenna was taken down, thus the overall structure height was 195
feet. The October 30, 2000, response, states that the overall
structure height is 195 feet, ``and therefore no painting or
lighting is required at this site''. Therefore, by inference and
the photos provided, Rio Grande admits that the structure was
over 200 feet . All Antenna Structure Registration
specifications are effective until modified or removed at the
request of the tower owner and subsequent action by the
Commission. Corrective action taken after the identification of
a violation does not absolve the subject of potential penalties
or of the potential hazard to air navigation that existed as a
result of the violation.
13. Based on the evidence before us, we find that Rio
Grande willfully4 violated Section 303(q) of the Act and Section
17.23 of the Commission's Rules by failing to paint and light the
antenna structure. In addition, we find that Rio Grande
willfully violated Section 17.57 of the Commission's Rules by
failing to notify the Commission immediately of any change in
structure height. 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 and three thousand dollars ($3,000) for
failure to file required forms. 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 of the potential hazard to air navigation
and a three thousand ($3000) monetary forfeiture for failure to
file required forms, for a total of thirteen thousand dollars
IV. ORDERING CLAUSES
14. 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, Rio Grande Transmission, Inc., is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of thirteen
thousand dollars ($13,000) for willfully violating Section 303(q)
of the Act and Sections 17.23 and 17.57 of the Commission's
15. 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, Rio Grande Transmission, Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
16. 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. 20013280-0001.
17. A response regarding this matter, 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.
18. 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
19. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.7
20. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail/Return Receipt
Requested to Rio Grande Transmission, Inc., 1835-B Kramer Lane,
Austin, Texas 78758.
Leo E. Cirbo
District Director, Denver Office
1 47 U.S.C. § 303(q).
2 47 C.F.R. §§ 17.23 and 17.57.
3 According to Ms. Casar, Rio Grande Transmission, Inc., is a
subsidiary of Broadwing Communications, which is a subsidiary of
4 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).
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.