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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-326
)
Florida Cellular Service, LLC ) NAL/Acct. No.200232700023
Owner of Antenna Structure Number ) FRN 0004206637
1225706 in Hobe Sound, Florida )
Dallas, Texas )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 7, 2002
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Florida Cellular Service, LLC, (``Florida
Cellular''), owner of antenna structure number 1225706 in Hobe
Sound, Florida, apparently liable for a forfeiture in the amount
of ten thousand dollars ($10,000) for willful and repeated
violation of Section 17.51 of the Commission's Rules
(``Rules'').1 Specifically, we find Florida Cellular apparently
liable for its failure to exhibit prescribed tower lights on its
antenna structure.
II. BACKGROUND
2. On June 9, 2002, June 11, 2002, and June 13, 2002,
agents from the FCC Enforcement Bureau, Tampa Field Office
observed that antenna structure number 1225706 was not
illuminated per its assigned painting and lighting specifications
in that the top strobe light was extinguished on the antenna
structure. On June 13, 2002, FCC agents contacted the Federal
Aviation Administration (``FAA'') who confirmed that the required
Notice to Airmen (``NOTAM'') had not been requested by the
structure owner.
III. DISCUSSION
3. Section 17.51 requires that all high intensity and
medium intensity obstruction lighting should be exhibited
continuously unless otherwise specified. The antenna structure
owner is responsible for maintaining the structure's lighting.2
In addition, the antenna structure owner shall report immediately
to the FAA any known improper functioning of a structure's top
light or any flashing light.3 On June 9, 2002, June 11, 2002,
and June 13, 2002, Florida Cellular failed to exhibit medium
intensity obstruction lighting on its antenna structure number
1225706 in accordance with its registration requirements. The
FAA had no report of a light outage on this structure.
4. Based on the evidence before us, we find Florida
Cellular Service, LLC willfully4 and repeatedly5 violated Section
17.51 of the Rules by failing to exhibit tower lights on its
antenna structure 1225706.
5. Pursuant to Section 1.80(b)(4) of the Rules,6 the base
forfeiture amount for failure to exhibit obstruction lighting 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.7 Considering
the entire record and applying the factors listed above, this
case warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80 of the
Rules,9 Florida Cellular Service, LLC is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for willful and repeated violation of Section
17.51 of the Rules by failing to exhibit obstruction lighting on
structure 1225706 in Hobe Sound, Florida.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Florida Cellular Service, LLC, SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
8. 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. 20554.10
9. 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.
10. 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.
11. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Florida Cellular Service, LLC, 17330 Preston Road, Suite 100A,
Dallas, TX 75252.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
Tampa Office, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.51.
2 See 47 C.F.R. § 17.6(a).
3 See 47 C.F.R. § 17.48(a).
4 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).
5 The 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.'' 47 U.S.C. §
312(f)(2).
6 47 C.F.R. § 1.80(b)(4).
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 See 47 C.F.R. § 1.1914.