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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
John W. Ashley ) File Number EB-02-TP-105
DBA: Ashley Communications )
Owner of Antenna Structure ) NAL/Acct. No. 200332700014
Registration Number 1038740 in )
Dover, Florida ) FRN 0006-1642-89
Plant City, Florida )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released:
January 22, 2003
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find John W. Ashley, DBA: Ashley
Communications (``Ashley''), owner of antenna structure
#1038740 in Dover, Florida, apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000)
for willful violation of Section 17.50 of the Commission's
Rules (``Rules'').1 Specifically, we find Ashley apparently
liable for failing to comply with prescribed antenna
structure lighting and/or marking requirements.
II. BACKGROUND
2. Antenna structure #1038740 is located in Dover,
Florida. John W. Ashley, DBA: Ashley Communications is the
registered owner of this structure. The structure's Antenna
Structure Registration (``ASR'') specifies that the
structure should be painted and lighted.
3. On August 21, 2002, agents from the Commission's
Tampa Office inspected Ashley's antenna structure #1038740
in Dover, Florida. The agents observed that black cables
attached to the structure obstructed the antenna structure
paint over the entire height of the structure, resulting in
poor visibility of the structure.
III. DISCUSSION
4. Section 17.50 of the Rules states that antenna
structures requiring painting shall be cleaned or repainted
as often as necessary to maintain good visibility. The
antenna structure owner is responsible for maintaining the
structure's painting.2 Ashley is the registered owner of
antenna structure #1038740. This structure is required to
be painted pursuant to Federal Aviation Administration
specifications, the structure's ASR, and FCC rules.3 On
August 21, 2002, cables attached to the structure obstructed
the paint over the entire height of the structure, resulting
in poor visibility.
5. Based on the evidence before us, we find that
Ashley willfully4 violated Section 17.50 of the Commission's
Rules by failing to maintain good visibility of its antenna
structure.
6. Pursuant to Section 1.80(b)(4) of the Rules,5 the
base forfeiture amount for failure to comply with prescribed
lighting and marking is $10,000. Section 503(b)(2)(D) of
the Communications Act of 1934, as amended (``Act''),
requires us to take into account ``...the nature,
circumstances, extent, and gravity of the violation, and
with respect to the violator, the degree of culpability, any
history or prior offenses, ability to pay, and other such
matters as justice may require.''6 Considering the entire
record, and applying the factors listed above, this case
warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,7 and Sections 0.111, 0.311 and
1.80 of the Commission's Rules,8 Ashley is hereby NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for willful violation of
Section 17.50 of the Rules by failing to maintain good
visibility of the required antenna structure obstruction
markings.
8. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules, within thirty days of the
release date of this NAL, Ashley 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. and FRN referenced
in the letterhead above. Requests for payment of the full
amount of this NAL under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, SW,
Washington, DC 20554.9
10. 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. and FRN referenced in the letterhead above.
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. 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 Technical &
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 NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to John W. Ashley DBA: Ashley
Communications, 1301 N Wheeler Street, Plant City, Florida
33566.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director, Tampa Office
Enforcement Bureau
Attachment
_________________________
1 47 C.F.R § 17.50.
2 See 47 C.F.R. § 17.6(a).
3 See 47 C.F.R. §§ 17.21, 17.22, and 17.23.
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 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.