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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-806
)
Professional Communications Inc. ) NAL/Acct. No.200332560009
Owner of Antenna Structure )
#1037282 located ) FRN 0006-1497-36
near Peculiar, Missouri )
Houston, Texas
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 24, 2003
By the Enforcement Bureau, Kansas City Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Professional Communications
Inc. (``PCI''), owner of antenna structure #1037282,
apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000.00) for willful and repeated
violation of Section 17.51(a) of the Commission's Rules
(``Rules'').1 Specifically, we find Professional
Communications Inc. apparently liable for failure to exhibit
all red obstruction lighting from sunset to sunrise during
the period of November 11-15, 2002, and on December 3, 2002.
II. BACKGROUND
2. On November 11, 2002, a tenant on PCI's antenna
structure #1037282 telephoned PCI representative Eran
Epstein notifying him of the outage of lighting on the
structure, including the outage of a beacon. Mr. Epstein
contacted United Tower Inc. (``UTI'') in Wichita, Kansas and
contracted with them to conduct repairs on the structure.
The Federal Aviation Administration (``FAA'') was not
notified of the outage of the lighting on the structure
because PCI incorrectly assumed their monitoring company,
TowerSentry, had received an alarm and had contacted the
FAA.
3. On November 15, 2002, UTI personnel repaired the
outages by replacing all lamps on the structure, including 6
beacon bulbs and 9 side light bulbs.
4. On December 3, 2002, at approximately 6:25 A.M.,
an agent from the FCC's Kansas City Field Office (``Kansas
City Office'') conducted an inspection of PCI's antenna
structure #1037282. The agent noted that only the topmost
flashing beacon was in operation. A second beacon at the
1/3 overall height level was lighted, but not flashing.
The side lighting at the 1/6 overall height level was in
operation as was one lamp at the ½ overall height level. No
lighting was observed between the ½ overall height level
and the top flashing beacon. At approximately 9:00 A.M.
this date, the agent contacted PCI representative Eran
Epstein by telephone concerning the condition of the
lighting on the structure. At the time of that call, PCI
was unaware of the outage, no alarms had been received by
the monitoring company, TowerSentry, and the FAA had not
been notified of the outage.
5. On December 4, 2002, PCI submitted a faxed memo
and logs to FCC, Kansas City Office. The documentation
indicates that no light outages were logged during the
period of November 1, 2002 through, and including, December
3, 2002. During that same period, the FAA was notified
only once of light outages on the structure, and that
notification was made at 11:00 A.M. on December 3, 2002.
The memo indicated that mice had eaten through the wiring
causing the outage of the lighting.
6. On December 4, 2002, the Kansas City Office issued
a Letter of Inquiry (``LOI'') to PCI requesting information
pertaining to the logging, alarm and lighting maintenance,
and monitoring practices of PCI for this structure.
7. On December 9, 2002, PCI submitted a reply to the
LOI. The reply stated that PCI has now engaged United
Towers Inc. to perform required quarterly tower inspections
of both the lighting system as well as components of the
alarm system. The letter further stated that the damaged
alarm system prevented TowerSentry from receiving an
indication of the outage which resulted in no logs being
made of the outage and no notifications being made to PCI or
UTI. The reply also confirmed that PCI was the owner of the
structure.
III. DISCUSSION
8. Section 17.51(a) of the Rules requires that all
red obstruction lighting be exhibited from sunset to
sunrise. The Antenna Structure Registration for PCI's
antenna structure #1037282 requires that red obstruction
lighting be exhibited at night. During the period of
November 11-15, 2002 and on December 3, 2002, one or more
beacons were inoperable on the antenna structure bearing FCC
registration #1037282 and located near Peculiar, Missouri.
The outage of at least one beacon was noted by a tenant
operating from this structure, who notified PCI via
telephone on November 11, 2002. That outage was not
repaired until November 15, 2002 according to PCI's own
reports and records. The outage of December 3, 2002 was
noted by an FCC agent and included the outage of two beacons
and several side lights. No report was made to the FAA
concerning any of the noted outages until after the FCC made
contact with the PCI representative on December 3, 2002.2
The PCI representative was personally notified of the outage
on November 11, 2002, but no log entries were made
documenting the outage3 and there is no indication that any
attempt was made to determine the reasons why PCI received a
telephone call from a tenant instead of notification from
TowerSentry. PCI was not conducting required inspections of
the lighting and alarm systems or taking the steps necessary
to properly maintain these systems prior to FCC
notification.4
9. Based on the evidence before us, we find PCI
willfully5 and repeatedly6 violated Section 17.51(a) of the
Rules by failing to exhibit all red obstruction lighting
from sunset to sunrise during the period of November 11-15,
2002, and on December 3, 2002.
10. Pursuant to Section 1.80(b)(4) of the Rules,7 the
base forfeiture amount for failure to comply with prescribed
lighting is $10,000.00. 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.8
Considering the entire record and applying the factors
listed above, this case warrants a $10,000.00 forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,9 and Sections 0.111, 0.311 and
1.80 of the Rules,10 Professional Communications Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of ten thousand dollars ($10,000.00) for
willful and repeated violation of Section 17.51(a) of the
Rules by failing to exhibit all red obstruction lighting
from sunset to sunrise during the period of November 11-15,
2002, and on December 3, 2002.
12. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Professional Communications Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
13. 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. 20554.11
14. 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.
15. 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.
16. 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.
17. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Professional Communications Inc., 8588
Katy Fwy, Suite 240, Houston, Texas 77024.
FEDERAL COMMUNICATIONS COMMISSION
- Unhandled Picture -
Robert C. McKinney
Kansas City Office, Enforcement
Bureau
Attachment
October 2002
ATTACHMENT A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 C.F.R. § 17.51(a).
2 The owner of any registered antenna structure with
assigned lighting specifications must report immediately to
the nearest FAA Flight Service Station of the FAA any known
improper functioning of any top or flashing obstruction
light not corrected within 30 minutes. See 47 C.F.R. §
17.48(a).
3 The owner of any registered antenna structure with
assigned lighting specifications must maintain a record of
any known improper functioning of a structure light. See 47
C.F.R. § 17.49.
4 See 47 C.F.R. § 17.47.
5 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).
6 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).
7 47 C.F.R. § 1.80(b)(4).
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, 1.80.
11 See 47 C.F.R. § 1.1914.