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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-01-PA-331
)
Morgan Tower Inc. ) NAL/Acct. No.
200232400004
Cinnaminson, New Jersey )
) FRN #. 0006-3665-04
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 19, 2002
By the District Director, Philadelphia Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Morgan Tower Inc. (``Morgan'')
has apparently violated Section 17.21(a) of the
Commission's Rules (``the ``Rules'')1 by failing to
paint and light an antenna structure. We conclude that
Morgan is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On November 29, 2001, Agent Trenton Williams of the
Philadelphia Office performed a routine inspection of, the
antenna structure, Antenna Structure Registration (``ASR'')
number 1060096, located on the roof of the building at 7200
Stenton Avenue in Philadelphia. Mr. Williams noted that the
antenna structure was not painted or lighted as required.
3. On January 10, 2002, the Philadelphia Office issued a
Notice of Violation (``NOV'') to Mr. Leonard Stevens,
d.b.a. Morgan Tower Inc. for violation of Section
17.21(a) of the Rules. Morgan was given thirty (30) days
from the date of the notice in which to respond with an
explanation of what steps had been taken to correct the
deficiencies and a timetable for completing corrective
actions.
4. By letter dated January 28, 2001, Joseph Maloney of
Tower Economics Company, Inc. submitted a response to the
Philadelphia Office on behalf of Morgan. Mr. Maloney
acknowledged receipt of the NOV sent to Morgan, and
stated that the FAA authorized a waiver of the painting
and lighting requirements, however Mr. Maloney was unable
to provide evidence that such a waiver was granted. To
date, the Philadelphia Office has not received any
evidence that the waiver was ever granted.
III. DISCUSSION
5. Section 17.21(a) of the Rules specifies that antenna
structures shall be painted and lighted when they exceed
60.96 meters (200 feet) in height above ground or they
require special aeronautical study.
Agent Williams has determined, based on information contained in
the FCC database for Antenna Structure Registration number
1060096, that the overall height above ground of Morgan's antenna
structure is 88.3 meters (289.7 feet).
6. Based on the evidence before us, we find that Morgan
Tower Inc. has willfully2 violated Section 17.21(a) of
the Rules. 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) (``Forfeiture
Policy Statement'')3, sets the base forfeiture amount at
ten thousand dollars ($10,000) for failure to comply with
prescribed lighting and marking specifications. In
assessing the monetary forfeiture amount, we must take
into account the statutory factors set forth in Section
503(b)(2)(D) of the Communications Act of 19344
(``Act''), as amended, 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
Forfeiture Policy Statement and the statutory factors to
the instant case, we believe that a ten thousand dollar
($10,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80 of
the Rules,5 Morgan Tower Inc. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for willfully violating
Section 17.21(a) of the Rules.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Morgan Tower Inc. SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE
a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. 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. 200232400004 and FRN # 0006-3665-04.
10. 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.
200232400004.
11. 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.
12. Requests for payment of the full amount of this Notice
of Apparent Liability under and installment plan should
be sent to: Chief, Revenue and receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.6
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail,
Return Receipt Requested, to Morgan Tower Inc. 700 Route
130 N. Suite. 204, Cinnaminson, New Jersey 08077.
FEDERAL COMMUNICATIONS
COMMISSION
John E. Rahtes
District Director
Philadelphia Office
_________________________
1 47 C.F.R. § 17.21(a).
2 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).
3 47 C.F.R. § 1.80.
4
47 U.S.C. § 503(b).
5 47 C.F.R. §§ 0.111, 0.311, and 1.80.
6 See 47 C.F.R. § 1.1914