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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number: EB-02-BF-
North Country Repeaters ) 338
Owner of antenna structure on )
Rand Hill ) NAL/Acct. No.
Beekmantown, New York ) 200332280008
)
FRN: 0004-1349-61
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 12, 2003
By the Resident Agent, Buffalo Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that North Country Repeaters (``NCR''), owner
of antenna structure #1009975, has apparently violated Sections
17.4(a), 17.4(g), and 17.50 of the Commission's Rules
(``Rules'')1 by failing to register the tower, failing to post
the Antenna Structure Registration (``ASR'') number at the base
of the antenna structure; and failing to clean and repaint its
antenna structure to maintain good visibility. We conclude that
NCR is apparently liable for a forfeiture in the amount of
fifteen thousand dollars ($15,000).
II. BACKGROUND
2. On August 28, 2002, an agent of the Commission's
Buffalo Office inspected the antenna structure located on Rand
Hill, in Beekmantown, New York. At the time of inspection, the
agent found that the tower paint was chipped and faded, that no
Antenna Registration Number was posted, and that the coordinates
of the tower did not match the coordinates registered with the
FAA and FCC.
3. On September 9, 2002, the Buffalo Office issued a
Notice of Violation (``NOV'') to North Country Repeaters. The
NOV cited violations of Sections 17.4(a), 17.4(g), and 17.50 of
the Rules.
4. On September 18, 2002, the Buffalo Office received a
response from Mr. Erling Svendsen. In the reply, he stated that
the tower had been repainted, paperwork was being processed to
correct the coordinates in the FAA and FCC databases, and that
the Antenna Registration Number 1009975, was now posted at the
base of the tower.
5. On December 16, 2002, Agent Stanbro phoned Mr.
Svendsen, inquiring about the current status to correct the
coordinates for tower #1009975. Mr. Svendsen stated he had
submitted the paperwork and would fax a copy to the Buffalo
Office.
III. DISCUSSION
6. Section 17.4(a) of the Rules requires the owner of an
existing or proposed tower that requires notice of proposed
construction to the Federal Aviation Administration must register
the structure with the Commission. All information provided to
the Federal Aviation Administration and Federal Communication
Commission must be accurate. At the time of inspection, the FCC
database showed there was no tower registered at or near the
coordinates observed by the agent, and subsequently verified by
the licensee's surveyor.
7. Section 17.4(g) of the Rules states the Antenna
Structure Registration Number must be displayed in a conspicuous
place so that it is readily visible near the base of the antenna
structure. NCR did not have an Antenna Structure Registration
number posted.
8. Section 17.50 of the Rules states that antenna
structures requiring painting under this part shall be cleaned or
repainted as often as necessary to maintain good visibility. At
the time of inspection, NCRs' tower paint visibility had
deteriorated over time to the point of being a hazard to air
navigation.
9. Based on the evidence before us, we find that NCR
willfully2 and repeatedly3 violated Sections 17.4(a), 17.4(g),
and 17.50 of the rules by failing to properly register the tower,
failing to post the ASR number at the base of the antenna, and
failing to repaint the tower to maintain good visibility. The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303(1999)
(``Forfeiture Policy Statement'')4, sets the base forfeiture
amount at $3,000 for failure to file required forms or
information, and $10,000 for failure to comply with prescribed
lighting and/or marking requirements. Section 1.80(b)(4) of the
Rules5 does not establish a base forfeiture amount for failure to
post the ASR number.6 The Commission has determined, however,
that an appropriate base forfeiture amount for failure to post
the ASR number is $2,000 per violation.7 In assessing the
monetary forfeiture amount, we must take into account the
statutory factors set forth in Section 503(b)(2)(D) of the
Communications Act of 1934 (``Act''), as amended8, 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. Applying the Forfeiture Policy Statement
and the statutory factors listed above, and applying the
inflation adjustments, we believe that a fifteen thousand dollar
($15,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act9, and Sections 0.111, 0.311 and 1.80 of the
Rules10, North Country Repeaters is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen
thousand dollars ($15,000) for willful and repeated violation of
Sections 17.4(a), 17.4(g), and 17.50 of the Rules.
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, North Country Repeaters, SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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. 200332280008 and FRN: 0004-1349-61.
13. 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. 200332280008.
14. 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.
15. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.11
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 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.
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to North Country Repeaters, 994 Military
Turnpike, Plattsburgh, New York 12901-5926.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
Resident Agent
Buffalo Office
Attachment A: Condensed List of Small Entities
_________________________
1 47 C.F.R. §§ 17.4(a), 17.4(g), and 17.50
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provide that ``the
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).
3 Section 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.
4 47 C.F.R. § 1.80.
5 47 C.F.R. § 1.80(b)(4).
6 See The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Forfeiture Policy Statement''), 12 FCC Rcd 17087
(1997), recon. denied 15 FCC Rcd 303 (1999). 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 forfeiture
authority contained in Section 503 of the Act. Id.
7 American Tower Corporation, 16 FCC Rcd 1282 (2001)
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111 and 0.311.
11 See 47 C.F.R. § 1.1914.