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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-04-BF-013
Owner of Tower # 1007252 ) NAL/Acct. No.
Olean, New York )
) FRN: 0003 46 9442
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 19, 2004
By the Resident Agent, Buffalo Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Verizon has apparently violated Sections
17.48, 17.49, 17.51, and 17.57 of the Commission's Rules (the
``Rules'')1. These violations occurred by failure to immediately
notify the nearest FAA Flight Service Station of a beacon outage,
failure to keep and maintain accurate logs/records of antenna
structure lighting, failure to exhibit all red obstruction
lighting from sunset to sunrise, and failure to immediately
notify the Commission using Form 854 upon change in ownership.
We conclude that Verizon is apparently liable for a forfeiture in
the amount of seventeen thousand dollars ($17,000).
2. Verizon owns the antenna structure located in Olean,
New York and assigned the Antenna Structure Registration Number
1007252 (``1007252''). Based on FCC Form 715 ``Obstruction
Marking and Lighting Specifications for Antenna Structures,''
1007252 has paragraph 1, 3, and 11 painting and lighting
3. On January 21, 2004, the Commission's Buffalo Office
received a complaint reporting the tower lights were out on a
tower off McDuffy Road, off Route 16. A search of the Antenna
Structure Registration (ASR) Records showed the only tower in the
area of McDuffy Road was owned by NYNEX, tower number 1007252
4. On January 22, 2004, an agent in the FCC Buffalo Office
tried to contact NYNEX to verify that the lights were out on
their tower, and that the FAA had been notified. The agent was
unable to contact anyone from NYNEX and subsequently determined
that NYNEX was now Verizon. The agent then spoke to several
Verizon representatives, including a technician local to the
tower location. No one he contacted at Verizon could or would
verify Verizon owned 1007252. A Verizon technician drove to the
tower location and reported that the lights were out, and that
the tower was not Verizon's, but may be owned by Niagara Mohawk.
5. On January 26, 2004, the agent visually inspected
1007252 and verified the tower's top beacon was extinguished but
the sidelights were lit. The agent tried calling the phone
numbers posted on the building next to 1007252. One of the
numbers was unusable, but the second was answered by Verizon
Corporate Real-estate Customer Service Center. Again, no one the
agent talked to was able to verify that Verizon owned 1007252.
The agent contacted Kathryn Wheeler, one of the representatives
he had spoken to on January 22, and asked if she would check
their records again. The agent was referred to Debbie Krajcik,
who stated she worked for NYNEX Longwire, that the tower was one
of theirs, and that she would contact the person responsible for
the tower and have him call the agent.
6. On January 27, 2004, Agent Stanbro had not heard from
Ms. Krajcik or the person responsible for 1007252 so he phoned
Ms. Krajcik at 718.237.5342. Ms. Terry Gangi answered the phone
and said Ms. Krajcik was not in, but would be in shortly. When
he asked if he was talking to someone from NYNEX, Ms. Gangi
stated she worked for Verizon and NYNEX no longer existed.
Agent Stanbro then asked whom Ms. Krajcik worked for and she said
7. On January 28, 2004, Agent Stanbro received a fax from
Mr. David E. Hajjar, Verizon Corporate Real-Estate Office. The
fax contained a copy of the last tower inspection report dated
November 5, 2002 and a sketch of the tower (1007252) and adjacent
building. The agent called Mr. Hajjar and told him he had
received the fax but needed more information on the tower
lighting, how the lighting was monitored, and when the last time
the tower lighting was observed. The agent asked if the FAA had
been notified of the tower light outage, and what the NOTAM (FAA
notice to airmen) number was. Mr. Hajjar stated he had not
notified the FAA and asked where he could call. The agent told
Mr. Hajjar the FAA had to be notified by the owner of the tower
by calling the nearest FAA Flight Service Center. Mr. Hajjar
said he would contact the FAA and provide the agent with the
required information as soon as he was able.
8. Later on January 28, 2004, Agent Stanbro responded to
an e-mail from the FCC's Communications and Crisis Management
Center, which said that the FCC call center had received a call
from Mr. Hajjar about the outage for tower 1007252. Agent Bradt
stated after he had received an e-mail from the FCC Consumer
Center, Gettysburg, he did a search of the ASR database, and
determined that the tower in question might be 1007252. Agent
Bradt called Mr. Hajjar and identified himself as the FCC Duty
Officer, and said he was trying to determine which tower Mr.
Hajjar was reporting. Mr. Hajjar immediately told Agent Bradt
the tower number, 1007252. Agent Bradt stated that no phone
number or e-mail address for the owner was listed, and the owner
was NYNEX. Mr. Hajjar said he had tried to notify the FAA AFSS
but nobody was answering, and asked Agent Bradt to get in touch
with the FAA. Agent Bradt indicated he must first attempt to
notify the tower owner, and the tower owner must notify the FAA.
Agent Bradt stated that at no time during the conversation did
Mr. Hajjar indicate any involvement with tower 1007252, as either
the owner, or any association with Verizon.
9. On January 29, 2004, when Agent Stanbro phoned Mr.
Hajjar inquiring about the FAA notification, he again advised Mr.
Hajjar that Verizon was responsible for notifying the FAA about
the tower light outage. The agent looked the FAA number up in a
local phone book, gave the number to Mr. Hajjar, and requested
that Mr. Hajjar notify the FAA and fax the NOTAM number, date and
time along with any records he was able to locate to the Buffalo
Office. Mr. Hajjar faxed a note to verify the FAA had been
notified the afternoon of the 29th.
10. On January 30, 2004, Mr. Hajjar faxed a message to
Agent Stanbro, stating the tower had been re-lamped and was now
operating. He also stated the repair contractor determined the
photocell also needed to be replaced. The fax also stated the
FCC ASR database had been updated and the NOTAM number was 01/133
Buffalo. He then stated Verizon was still looking for the tower
11. On February 2, 2004, Mr. Hajjar faxed a letter with
more information regarding records/logs for monitoring 1007252.
The fax stated the last records Verizon could locate, were dated
October 2001, the last time the tower was inspected was November
5, 2002, and Verizon was still looking for records/logs regarding
the tower. Verizon has not produced any further records or logs.
12. Section 17.48 of the Rules requires the owner of any
antenna structure to report immediately by telephone or telegraph
to the nearest FAA Flight Service Station or office of any
observed or otherwise known extinguishment or improper
functioning of any top steady burning light or any flashing
obstruction light, regardless of its position on the antenna
structure, if not corrected within 30 minutes. Agent Stanbro
notified Verizon personnel of the tower light outage, on January
26, 2004, but they did not notify the FAA until January 29, 2004.
13. Section 17.49 of the Rules requires the owner maintain
a record of any observed or otherwise known extinguishment or
improper functioning of a structure light and include the nature
of extinguishment or improper functioning, the date and time the
extinguishment or improper functioning occurred, date and time of
FAA notification, and date, time and nature of adjustments,
repairs, or replacements made. Verizon, at the time of the
outage, failed to maintain proper records.
14. Section 17.51 of the Rules requires that all red
obstruction lighting shall be exhibited from sunset to sunrise
unless otherwise specified. The, top beacon of antenna structure
1007252 was extinguished at the time of inspection on January 26,
2004, but the sidelights were lit.
15. Section 17.57 of the Rules requires the owner of an
antenna structure for which an antenna Structure Registration
Number has been obtained to immediately notify the Commission
using FCC Form 854 upon any change in structure height or change
in ownership information. The tower was registered to NYNEX at
the time of the light outage
16. Based on the evidence before us, we find that Verizon
willfully2 and repeatedly3 violated Sections 17.48, 17.49, 17.51,
and 17.57 of the Rules. The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporated 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 (two counts, FAA
and FCC), $1000 for failure maintain required records, and
$10,000 for failure to comply with prescribed lighting and/or
marking. 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 1934,5 (the ``Act''),
as amended, 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 to the
instant case and applying the inflation adjustments, we believe
that a seventeen thousand dollar ($17,000) monetary forfeiture is
IV. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6, and Sections 0.111, 0.311 and 1.80 of the
Rules7, Verizon is hereby NOTIFIED of its APPARENT LIABILITY FOR
A FORFEITURE in the amount of seventeen thousand dollars
($17,000) for willfully violating Sections 17.48, 17.49, 17.51,
and 17.57 of the rules.
18. 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, Verizon SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
19. 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) 0003 46 9442, and should note
the NAL/Acct. No. 200432280001.
20. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554, and MUST INCLUDE THE NAL/Acct. No. 200332280001.
21. 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
22. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
23. 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.
24. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Verizon, 395 Flatbush Ave. Ext, Room 506, Brooklyn,
New York 11201.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
Buffalo, New York Office
Attachment A - FCC List of Small Entities, October 2002
1 47 C.F.R §§ 17.48, 17.49, 17.51, and 17.57.
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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).
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.
47 C.F.R. § 1.80.
5 47 U.S.C § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.