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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Gary M. Schikora and George ) File Number: EB-04-AN-020
Horner Trust )
) NAL/Acct. No. 200532780004
Owner of Antenna Structure ) FRN 0011766979
#1005017 )
Fairbanks, Alaska
ASR #1005017
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December
13, 2004
By the Resident Agent, Anchorage Resident Agent Office, Western
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Gary M. Schikora (``Schikora'') and the
George Horner Trust ("Horner Trust"), owners of antenna structure
#1005017, in Fairbanks, Alaska, apparently willfully and
repeatedly violated Section 17.57 of the Commission's Rules
("Rules")1 by failing to immediately notify the Commission of a
change in ownership of an antenna structure. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"),2 that Schikora and the Horner Trust are
apparently liable for a forfeiture in the amount of three
thousand dollars ($3,000).
II. BACKGROUND
2. On May 20, 2003, agents from the Anchorage Resident
Agent Office inspected antenna structure #1005017, located at
1648 College Road, adjacent to the fairgrounds in Fairbanks,
Alaska. The Antenna Structure Registration (``ASR'') indicated
Donald G. Creamer, Sr. (``Creamer''), was the registered owner of
the antenna structure. The agents located ASR #1005017 posted at
the site. At the time of inspection, Commission records
indicated that antenna structure #1005017 was to have painting
and lighting in accordance with FCC Paragraphs 1, 3, 12, and 21.
The agents observed that the paint on the antenna structure was
faded and chipped, potentially reducing visibility of the
structure.
3. On February 10, 2004, an agent from the Anchorage
Resident Agent Office issued a Letter of Inquiry (``LOI'') to
Creamer. The LOI requested Creamer to respond to questions
concerning the paint on antenna structure #1005017. The
Anchorage Office did not receive the requested response.
4. On April 5, 2004, an agent from the Anchorage Resident
Agent Office reissued the LOI to Creamer. On April 20, 2004, the
Anchorage Resident Agent Office received a Response to the LOI
issued to Creamer which stated that Gary M. Schikora and the
George Horner Trust were the current owners of antenna structure
#1005017.3 According to the Response, the settlement date for
the transaction occurred on December 15, 2003.
6. On July 20, 2004, an Anchorage agent issued a LOI to
Schikora and the Horner Trust, requesting information
concerning the ownership and painting status of antenna
structure #1005017. The July 20, 2004, LOI
specifically noted that the owner of an antenna
structure must immediately notify the Commission using
FCC Form 854 of any change in ownership information.
On July 26, 2004, Schikora called the agent to discuss
the LOI. The agent explained to Schikora that he
needed to submit a written response to the LOI. The
agent also advised Schikora of the requirement that he
immediately change the antenna structure ownership
information on the ASR. On August 9, 2004, the
Anchorage Resident Agent Office received a response to
the LOI issued to Schikora and the Horner Trust.4 The
response stated that Schikora and the Horner Trust did
own antenna structure #1005017, that the antenna
structure was currently being repainted, and that a
Statutory Warranty Deed had been recorded locally in
the Fairbanks, Alaska Recording District. The response
failed to indicate, however, what steps Schikora and
the Horner Trust were taking to ensure that the FCC ASR
for antenna structure #1005017 reflected Schikora and
the Horner Trust as the current owners.
7. As of November 29, 2004, review of the Commission's ASR
database continued to reflect Donald G. Creamer, Sr. as
the antenna structure registrant for antenna structure
#1005017.
III. DISCUSSION
8. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially
with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the
provisions of the Act or of any rule, regulation or
order issued by the Commission thereunder, shall be
liable for a forfeiture penalty. The term "willful" as
used in Section 503(b) has been interpreted to mean
simply that the acts or omissions are committed
knowingly.5 The term ``repeated'' means the commission
or omission of such act more than once or for more than
one day.6
9. Section 17.57 of the Rules requires the owner of an
antenna structure to immediately notify the Commission,
using FCC Form 854, upon any change in structure height
or change in ownership information.7 We require
antenna structure owners to maintain current antenna
structure registration information with the Commission
and post ASR numbers at the base of antenna structures
to allow for easy contact if problems arise.8 Schikora
and the Horner Trust are the owners of antenna
structure #1005017, located in Fairbanks, Alaska. An
agent from the Anchorage Resident Agent Office advised
Schikora and the Horner Trust on July 20, 2004, of the
requirement to submit to the Commission information for
ASR #1005017 to reflect the new ownership of the
antenna structure. Review of the Commission's ASR
records reveals that, as of November 29, 2004, the ASR
for antenna structure #1005017 continues to indicate
that Donald G. Creamer, Sr. is the current owner of the
antenna structure.
10. Schikora and the Horner Trust received notice that they
were required to change the ownership information filed
with the Commission concerning antenna structure
#1005017. Schikora and the Horner Trust failed to
change this information, therefore, their violation of
Section 17.57 is willful. The violation occurred on
more than one day, therefore, it is repeated. Based on
the evidence before us, we find that Schikora and the
Horner Trust willfully and repeatedly violated Section
17.57 of the Rules by failing to immediately notify the
Commission of a change in ownership information for
antenna structure #1005017.
11. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture
Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for failure to file required
forms or information with the Commission is $3,000.9
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 Act, which include the
nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the
degree of culpability, and history of prior offenses,
ability to pay, and other such matters as justice may
require.10 Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors, a $3,000
forfeiture is warranted.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules, Gary
M. Schikora and the George Horner Trust are hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
three thousand dollars ($3,000) for violations of Section
17.57 of the Rules.11
15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of
the Commission's Rules within thirty days of the release date
of this Notice of Apparent Liability for Forfeiture, Gary M.
Schikora and the George Horner Trust SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
16. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight
mail may be sent to Bank One/LB 73482, 525 West Monroe, 8th
Floor Mailroom, Chicago, IL 60661. Payment by wire transfer
may be made to ABA Number 071000013, receiving bank Bank One,
and account number 1165259.
17. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Anchorage Resident Agent Office, P.O. Box 221849, Anchorage,
Alaska 99522-1849 and must include the NAL/Acct. No.
referenced in the caption.
18. 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.
19. Requests for payment of the full amount of this Notice
of Apparent Liability for Forfeiture under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.12
20. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Gary M.
Schikora and George Horner Trust, P.O. Box 75458, Fairbanks,
Alaska 99707.
FEDERAL COMMUNICATIONS COMMISSION
Marlene Windel
Resident Agent
Anchorage Resident Agent Office
Western Region
Enforcement Bureau
_________________________
147 C.F.R. § 17.57.
247 U.S.C. § 503(b).
3See Letter of Donald G. Creamer, Jr. to the Anchorage Resident
Agent Office (April 13, 2004) (``Response'').
4See Letter of Gary M. Schikora to the Anchorage Resident Agent
Office (August 4, 2004).
5Section 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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
6Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[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.''
747 C.F.R. § 17.57.
8See, e.g., American Tower Corporation, 16 FCC Rcd 1282 (2001) )
(Notice of Apparent Liability); American Tower Corporation, 16
FCC Rcd 14937 (2001) (Consent Decree between the Commission and
American Tower Corporation ).
.
912 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1047 U.S.C. § 503(b)(2)(D).
1147 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80, 17.57.
12 See 47 C.F.R. § 1.1914.