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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-TP-644
)
AT&T Wireless Services of ) NAL/Acct. No. 200432700014
Florida, Inc. )
Owner of Antenna Structure ) FRN 0001-5809-43
Registration Number 1030401 in )
Starke, Florida
Washington, D.C.
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 15, 2004
By the Enforcement Bureau, Tampa Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find AT&T Wireless Services of
Florida, Inc., (AT&T Wireless) owner of antenna structure
#1030401 in Starke, Florida, apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000)
for willful and repeated violation of Section 17.51(b) of
the Commission's Rules (``Rules'')1. Specifically, we find
that AT&T Wireless is apparently liable for failing to
exhibit medium intensity obstruction lighting on structure
1030401.
II. BACKGROUND
2. On July 23, 2003, the FCC Enforcement Bureau's
Tampa Field Office (``Tampa Office'') received a complaint
about an unlit and unpainted antenna structure located in
Starke, Florida with Antenna Structure Registration
(``ASR'') #1030401 The Commission's ASR database showed AT&T
Wireless as the owner and specifies that the structure be
lit with a dual lighting system.
.
3. On October 9, 2003, agents from the Tampa Office
observed during daylight hours that structure 1030401 was
not illuminated per its assigned painting and lighting
specifications in that no white medium intensity lighting
was exhibited or installed on the structure. Although the
structure had paint, the paint was faded resulting in poor
visibility of the structure.
4. On October 10, 2003, an agent from the Tampa Office
contacted the Federal Aviation Administration (``FAA'') and
determined no report of a light outage had been made for
this structure. The agent reported the outage to the FAA.
5. On October 14, 2003 the FCC agents made a second
observation during daylight hours and
noted that structure 1030401 was not illuminated per its
assigned painting and lighting specifications in that no
white medium intensity lighting was exhibited or installed
on the structure.
6. On January 30, 2004, the Tampa Office issued to
AT&T Wireless a Letter of Inquiry concerning the painting
and lighting of this antenna structure. The Tampa Office
received AT&T Wireless' written response on February 20,
2004. In its response, AT&T Wireless stated it acquired
structure # 1030401 on July 31, 2003 from Florida RSA#8,
LLC, a subsidiary of United States Cellular Corporation
(``USCC''). AT&T Wireless also stated that the structure,
constructed in 1987, was originally required to be painted
and exhibit red lighting at night; and that on August 11,
2000, the FAA issued a Determination of No Hazard to USCC
that allowed USCC to use dual lighting (medium intensity
white strobes during daytime, red lighting at night). AT&T
Wireless stated that USCC filed an application with the FCC
on August 30, 2000, to modify the ASR for the structure to
use the dual lighting system; and that this was the lighting
requirement for the structure on July 31, 2003 when AT&T
Wireless acquired the structure from USCC. AT&T Wireless
stated it conducted a quarterly audit of the structure on
October 27, 2003, and learned that the structure exhibited
lights at nighttime only, and also determined that "the
tower had to be repainted or it had to request authority
from the FAA to use dual lighting." AT&T Wireless stated it
subsequently discovered that the previous owner, USCC, had
received authority from the FAA to install a dual lighting
system and had already modified the structure's ASR for the
new lighting requirements. AT&T Wireless stated it then
obtained quotes and ordered the dual lighting equipment,
which was installed on January 20, 2004.
III. DISCUSSION
6. Section 17.51(b) requires that all high intensity
and medium intensity obstruction lighting should be
exhibited continuously unless otherwise specified. On
October 9, 2003, October 14, 2003, and until January 20,
2004, AT&T Wireless failed to exhibit medium intensity
obstruction lighting on structure 1030401 in accordance with
its registration requirements.
7. Based on the evidence before us, we find AT&T
Wireless willfully2 and repeatedly3 violated Section
17.51(b) of the Rules by failing to exhibit tower lights on
structure 1030401.
8. Pursuant to Section 1.80(b) (4) of the Rules,4 the
base forfeiture amount for failure to exhibit obstruction
lighting 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 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.5 Considering the entire
record and applying the factors listed above, this case
warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,6 and Sections 0.111, 0.311 and
1.80 of the Rules,7 AT&T Wireless is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for willful and repeated
violation of Section 17.51(b) of the Rules by failing to
exhibit tower lights on structure 1030401.
10. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, AT&T Wireless SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
11. 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. 20554.8
12. 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-
Spectrum Enforcement Division and MUST INCLUDE THE NAL/Acct.
No. referenced above.
13. 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.
14. 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 Spectrum
Enforcement 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.
15. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to AT&T Wireless Services of Florida,
Inc., 1150 Connecticut Avenue, NW, 4th Floor, Washington, DC
20036.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
Tampa Office, Enforcement Bureau
Attachment
_________________________
1 47 C.F.R. § 17.51(b).
2 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).
3 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).
4 47 C.F.R. § 1.80(b)(4).
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.