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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
VoiceStream PCS I License, ) File Number EB-02-DV-125
) NAL/Acct. No. 200332800003
Owner of Antenna Structure ) FRN 0001-5651-34
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 29, 2002
By the District Director, Denver Office, Enforcement Bureau
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that VoiceStream PCS I License, L.L.C.,
("VoiceStream"), registered owner of antenna structure #1015374,
in Aurora, Colorado, has apparently willfully and repeatedly
violated Section 17.4(g) of the Commissions Rules ("Rules")1 by
failing to display the Antenna Structure Registration ("ASR")
number on its antenna structure. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as Amended
("Act"),2 that VoiceStream is apparently liable for a forfeiture
in the amount of two thousand dollars ($2,000).
2. On May 21, 2002, at 3 p.m., MDT, an agent from the FCC's
Denver Office inspected an antenna structure located
approximately 0.3 miles northeast of the intersection of
Interstate 70 with East Smith Road in Aurora, Colorado. At the
time of the inspection, the structure was exhibiting strobe
lights and no ASR number was found posted at the site. A
subsequent query of the FCC's ASR database revealed that the
structure was registered to VoiceStream with the ASR number
1015374. The ASR showed the structure's painting and lighting
specifications to be FAA Chapters 4, 8, and 13, which require the
structure to have dual lighting, utilizing medium intensity white
lights during the day (i.e. strobes) and red lights at night.
3. On October 2, 2002, at 12:25 p.m. MDT, the Agent
returned to the tower site to verify that the lighting was
congruent with the structure's ASR lighting specifications. At
the time of this inspection, the antenna structure was properly
lit with daytime strobe lighting with a red beacon mounted atop
the tower and red sidelights mounted at the mid-level of the
structure. However, no ASR number was posted at the site.
4. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
fails to comply with any of the provisions of the Act or of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty.3 The term "willful" as
used in Section 503(b) has been interpreted to mean simply that
the acts or omissions are committed knowingly.4 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.5
5. Section 17.4(g) of the Rules requires that the ASR
number be posted in a conspicuous location so that it is readily
visible near the base of the antenna structure. At the time of
each inspection, the ASR number was not posted at the site.
Based upon the evidence before us, we find that VoiceStream
willfully and repeatedly violated section 17.4(g) by failing to
post the ASR number near the base of the antenna structure.
6. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80(b) of the Rules to Incorporate the
Forfeiture Guidelines, (``Forfeiture Policy Statement'')6 does
not establish a base forfeiture amount for failure to post the
ASR number.7 The Commission has determined, however, that an
appropriate base forfeiture amount for failure to post the ASR
number is two thousand dollars ($2,000) per violation.8 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 Act,9 which include the nature, circumstances, extent, and
gravity of the violation(s), and, with respect to the violator,
the degree of culpability, and history of prior offenses, ability
to pay, and other such matters as justice may require. Review of
the Commission's records indicates that several Notices of
Violations have been issued to VoiceStream or it's affiliates
within the past 2 years for failure to post the ASR at other
registered antenna structures. Applying the Forfeiture Policy
Statement and the statutory factors to the instant case, we
conclude a $2,000 forfeiture is warranted.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,10 and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules,11
VoiceStream PCS I License, L.L.C., is hereby NOTIFIED of an
APPARENT LIABILITY FOR A FORFEITURE in the amount of two thousand
dollars ($2,000) for violation of Section 17.4(g) of the Rules.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules,12 within thirty days of the release date
of this NOTICE OF APPARENT LIABILITY, VoiceStream SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
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 must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption.
10. The response, if any, must be mailed to the 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. referenced in the
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 principles ("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
12. Requests for payment of the full amount of this Notice
of Apparently Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operation Group, 445 12th
Street, S.W., Washington, D.C. 20554.13
13. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No.107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Federal Communications
Commission, Enforcement Bureau, Technical and Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact the OCBO at (202) 418-0290.
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent Certified Mail #7001 0320
00029702 9615, Return Receipt Requested, to VoiceStream PCS I
License, L.L.C., 12920 SE 38th Street, Bellevue, WA 98006.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
Enclosure: Attachment A
1 47 C.F.R. §§ 17.23 and 17.50.
2 47 U.S.C. § 503(b).
3 47 U.S.C. § 503(b).
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 (1991).
5 Section 312(f)(2), 47 U.S.C. § 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."
6 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
7 The Forfeiture Policy Statement states that "... any omission
of a specific rule violation from the ...[forfeiture
guidelines]... should not signal that the Commission considers
any unlisted violation as nonexistent or unimportant. Forfeiture
Policy Statement, 12 FCC Rcd at 17099. The Commission retains
the discretion, moreover, to depart from the Forfeiture Policy
Statement and issue forfeitures on a case by case basis, under
its general authority contained in Section 503 of the Act. Id.
8 See American Tower Corporation, 17 FCC Rcd 1282 (2001).
9 47 U.S.C. § 503 (b)(2)(D).
10 47 U.S.C. § 503 (b).
11 47 C.F.R. §§ 0.111, 0.311 and 1.80.
12 47 C.F.R. § 1.80.
13 See 47 C.F.R. § 1.1914.