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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Crown Communication, Inc. ) File Number EB-02-DV-281
)
Owner of Antenna Structure ) NAL/Acct. No. 200332800010
Number 1035006 ) FRN 0003-2470-87
Hobbs, New Mexico )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 28, 2003
By the District Director, Denver Office, Enforcement Bureau:
I. INTRODUCTION
1.In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Crown Communication, Inc., ("Crown"), the
registered owner of antenna structure number 1035006, in Hobbs,
New Mexico, has apparently willfully and repeatedly violated
Section 17.50 of the Commission's Rules ("Rules"),1 by failing to
repaint the antenna structure as often as necessary in order to
maintain good visibility. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"),2
that Crown is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000).
II. BACKGROUND
2.On August 13, 2002, an agent from the FCC's Denver Office
inspected an antenna structure bearing the FCC Antenna Structure
Registration ("ASR") number 1035006 located in Hobbs, New Mexico,
at coordinates N32-42-48 latitude and W103-05-30 longitude. The
ASR shows the antenna structure to be 174.6 meters (573 feet) in
height with a requirement to be painted and lit in accordance
with FAA Advisory Circular ("AC") 70/7460-1H, Chapters 3, 4, 5
and 13. At the time of the inspection, multiple pieces of black
coaxial cabling running vertically along one of the structure's
three vertical faces reduced the visibility of the bands of
aviation orange and white paint on the underlying antenna
structure.
III. DISCUSSION
3.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
4.Section 17.17(a) requires owners of registered antenna
structures to maintain the structure's assigned painting and
lighting.6 Section 17.50 of the Rules requires that antenna
structures requiring painting be cleaned or repainted as often as
necessary to maintain good visibility. Antenna structure number
1035006 is required to be registered and the registration
specifies painting and lighting in accordance with Part 17 of the
Rules and FAA AC 70/7460-1H, Chapters 3, 4, 5 and 13. These
painting requirements specify that the structure, and any
appurtenances mounted thereon, be painted throughout the antenna
structure's height with alternate bands of aviation surface
orange and white, terminating with aviation orange bands at both
top and bottom.7 At the time of the inspection, the bands of
alternating aviation orange and white paint on the underlying
antenna structure were not visible or distinguishable on one-
third to one-half of the tower when viewed from a northerly
direction, due to the volume of unpainted cabling attached to the
face of the structure. Based upon the evidence before us, we
find that Crown willfully and repeatedly violated section 17.50
by failing to paint the cabling mounted to the exterior face of
the antenna structure.
5.The base forfeiture amount set by The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, ("Forfeiture
Policy Statement"),8 and Section 1.80 of the Rules,9 for failure
to comply with prescribed antenna structure lighting or marking
(painting) 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 Act,10 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. Applying the Forfeiture Policy Statement
and the statutory factors to the instant case, a $10,000
forfeiture is warranted.
IV. ORDERING CLAUSES
6.Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules, Crown
Communication, Inc., is hereby NOTIFIED of an APPARENT LIABILITY
FOR A FORFEITURE in the amount of ten thousand dollars ($10,000)
for violating Section 17.50 of the Rules.11
7.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, Crown Communication, Inc.,
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 must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption.
9.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
caption.
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 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 submitted.
11.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
12.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 OCBO at (202) 418-0990.
13.IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail # 7001 0320
0002 9702 9431, Return Receipt Requested and First Class Mail, to
Crown Communication, Inc., Attention: Monica Gambino, 2000
Corporate Drive, Canonsburg, PA 15317.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
Acting District Director, Denver
Office
Enclosure: Attachment A
_________________________
1 47 C.F.R. § 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), of the Act, 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 47 C.F.R. § 17.17(a).
7 See 47 C.F.R. § 17.2; FAA AC 70/7460-1K, Chapters 2 and 3.
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
9 47 C.F.R. §1.80.
10 47 U.S.C. § 503(b)(2)(D).
11 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80 and
17.50.
12 47 C.F.R. § 1.80.
13 See 47 C.F.R. § 1.1914.