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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-04-DT-295
)
Source USA, Inc. ) NAL/Acct. No: 200532360001
)
Greenville, OH ) FRN 0012 3089 95
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
14, 2005
By the District Director, Detroit Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Source USA, Inc. (``Source'') has
apparently willfully and repeatedly violated Sections 17.4(a)
and 17.51(a) of the Commission's Rules (``the Rules'') and has
apparently willfully and repeatedly failed to respond to
Commission correspondence.1 These noted violations involve
Source's failure to register its antenna structure, failure to
exhibit the required red obstruction lighting, and failure to
respond to a Commission inquiry. We conclude, pursuant to
Section 503(b) of the Act,2 that Source is apparently liable
for a forfeiture in the amount of seventeen thousand dollars
($17,000).
II. BACKGROUND
2. On June 15, 2004, the Commission's Detroit Field Office
(``Detroit Office'') was notified by the Commission's Spectrum
Enforcement Division that the Federal Aviation Administration
(``FAA'') had received a report of an abandoned and/or unlit
antenna structure in Greenville, Ohio. The location of the
tower was reported to be at ``N40-08/W84-35.'' Based on this
information, a Commission agent checked the Antenna Structure
Registration (ASR) database on June 22, 2004 and determined
that there was no tower registered at those coordinates in
Greenville, Ohio.
3. On June 23, 2004, a Commission agent located and
inspected the antenna structure in Greenville, Ohio. Using GPS
equipment, the Commission's agent determined that the tower is
located at 40 08 57 North Latitude, 84 36 04 West Longitude.
The Commission's ``towpub'' database indicates that the FAA
assigned painting and lighting requirements to the tower
located at those coordinates on November 20, 1975, including a
requirement for red obstruction lighting.3
4. The agent determined that the tower, which measured 340
feet, was abandoned, unlit, and poorly painted. The agent
spoke to the owner of the property on which the antenna
structure is located and learned that the owner of the
structure is Fred Clark. The agent further determined that the
electric power to the antenna structure had been shut off for
approximately three years.
5. On June 30, 2004, the Detroit Office sent a Letter of
Inquiry (``LOI'') to Mr. Clark, requesting, inter alia,
information about ownership of the antenna structure and the
status of the light outages. The Detroit Office received a
response from Mr. Clark on July 16, 2004. Mr. Clark stated
that the tower is owned by Source USA, Inc. Mr. Clark also
stated that the previous managing partner failed to pay the
electric bill and that Source was not aware that the lights
were off. Mr. Clark further stated that arrangements were
being made to immediately restore the lighting and that a
Notice to Airmen (``NOTAM'') ``may have been issued last
summer.'' Because Mr. Clark stated that Source is the owner of
the antenna structure, but did not indicate that he is a
principal of the corporation, the Detroit Office sent a follow-
up LOI to Source on July 22, 2004 via Certified Mail, Return
Receipt Requested, and First Class U.S. Mail. Although the
Detroit Office received a signed receipt indicting receipt of
the LOI, Source did not submit a response.
6. On September 7, 2004, a Commission agent contacted Mr.
Clark by telephone. Mr. Clark advised the agent that he is an
officer of Source, that the tower is an asset of Source, and
that the electricity had been turned on after Source received
the Commission's first LOI. On September 9, 2004, the Detroit
Office sent a follow-up LOI to Source via Certified Mail,
Return Receipt Requested, and First Class U.S. Mail. The
September 9, 2004 LOI asked, inter alia, whether the tower is
registered with the FCC and stated that, if not registered, the
tower should be registered immediately. The LOI also asked
whether the FAA has provided any recommendations with regard to
the antenna structure. The Detroit Office received a signed
receipt for the certified letter indicating that the
correspondence had been received by Source. Source did not
respond to the September 9, 2004 LOI.
7. On October 5, 2004 the Detroit Office sent a Warning
Letter to Source via Certified Mail, Return Receipt Requested
and First Class U.S. Mail, stating that a response to the LOI
must be received within ten days and notifying Source that
failure to respond to the LOI is punishable by monetary
forfeiture. Source did not reply to the Warning Letter. The
Detroit Office received a signed receipt for the certified
letter indicating that Source received the correspondence. To
date, the Detroit Office has not received a response from
Source.
8. On December 2, 2004, a Commission agent conducted a
search of the ASR database and determined that the tower still
was not registered.
III. DISCUSSION
9. 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) of the Act has been interpreted to
mean simply that the acts or omissions are committed
knowingly.4 The term ``repeated'' means the commission or
omission of such act more than once or for more than one day.5
10. Section 17.4(a) of the Rules
requires provides that ``the owner of any proposed or existing
antenna structure that requires notice of proposed construction
to the Federal Aviation Administration must register the
structure with the Commission.''6 Section 17.4(a)(2) of the
Rules requires the owners of existing antenna structures that
were assigned painting or lighting requirements before July 1,
1996, to register those antenna structures with the Commission
no later than July 1, 1998.7 Source's antenna structure was
assigned painting and lighting requirements by the FAA in 1975,
so registration was required by 1998. Searches of the
Commission's ASR database on June 22, 2004 and on December 2,
2004 found no evidence of a registration for the tower at issue
here. We therefore find that Source apparently willfully and
repeatedly violated Section 17.4(a) of the Rules.
11. Section 17.21 provides that
antenna structures above 200 feet shall be painted and lighted.
As noted above, Source's antenna structure is above 200 feet.
Section 17.51 of the Rules requires that (a) all red
obstruction lighting shall be exhibited from sunset to sunrise
unless otherwise specified and (b) all high intensity and
medium intensity obstruction lighting shall be exhibited
continuously unless otherwise specified.8 On June 23, 2004, a
Commission agent determined that the antenna structure owned by
Source was not lit.9 Source states in its response to the
Detroit Office's June 30, 2004 LOI that ``the previous managing
partner failed to pay the electric bill and Source USA, Inc.
was unaware the lights were off.'' Source, as the owner of the
tower, is responsible for the tower being lit and its failure
to pay its electric bills for the past three years resulted in
the tower being unlit. We therefore find that Source
apparently willfully and repeatedly violated Section 17.51 of
the Rules.
12. We also find that Source willfully and repeatedly
failed to respond to inquiries from the Detroit Office. On
July 22, 2004, the Detroit Office sent Source an LOI via
Certified Mail, Return Receipt Requested, and First Class U.S.
Mail. Although the Detroit Office received a signed receipt
indicting receipt of the LOI, Source did not submit a response.
On September 9, 2004, the Detroit Office sent a follow-up LOI
to Source via Certified Mail, Return Receipt Requested, and
First Class U.S. Mail. Again, the Detroit Office received a
signed receipt for the certified letter indicating that the
correspondence had been received by Source, but Source did not
respond. Finally, on October 5, 2004, the Detroit Office sent
a Warning Letter to Source directing Source to respond to the
September 9, 2004 LOI within ten days and reminding Source that
it could face monetary penalties for failure to respond.
Source did not submit a response. We therefore find that
Source apparently willfully and repeatedly failed to respond to
Commission correspondence.
13. Based on the evidence before us, we find that
Source willfully and repeatedly violated the Rules by failing
to register its antenna and by failing to maintain the lighting
of its antenna structure. We also find, based on the evidence
before us, that Source willfully and repeatedly failed to
respond to Commission correspondence. The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"),10 and Section 1.80 of the Rules sets the
base forfeiture amount at three thousand dollars ($3,000) for
failure to file required forms or information; ten thousand
dollars ($10,000) for failure to comply with prescribed
lighting and/or marking; and four thousand dollars ($4,000) for
failure to respond to Commission communications. 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.11 Applying the Forfeiture Policy Statement, Section
1.80, and the statutory factors, a seventeen thousand dollar
($17,000) forfeiture is warranted.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to
Sections 4(i), 4(j), and 503(b) of the Communications Act of
1934, as amended, and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,12 Source is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of seventeen
thousand dollars ($17,000) for willful and repeated violations
of Sections 17.4(a), 17.51(a) of the Rules and for willful and
repeated failure to respond to a Commission order.
15. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Commission's Rules, within thirty (30) days of the
release date of this Notice of Apparent Liability for
Forfeiture, Source 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, Northeast
Region, Detroit Office, 24897 Hathaway Street, Farmington
Hills, MI 48335, within thirty (30) days from the release date
of this Notice of Apparent Liability for Forfeiture 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. 20554.13
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 Source
USA, Inc. 1404 Whitfield Avenue, Sarasota, FL 34243.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
_________________________
147 C.F.R. §§ 17.4(a) and 17.51(a).
247 U.S.C. § 503(b).
3The ``towpub'' database contains information about antenna
structures that were assigned painting and lighting requirements
before the Commission's antenna structure registration
requirement went into effect on July 1, 1996.
4Section 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).
5Section 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.''
647 C.F.R. § 17.4(a).
747 C.F.R. § 17.4(a)(2).
847 C.F.R. § 17.51(a) and (b).
9We note that we do not have a determination of ``no hazard''
from the FAA, which is the document that sets out the FAA's paint
and lighting recommendations for antenna structures. As a
result, we do not know whether Source is required to have red
obstruction lighting, high intensity obstruction lighting, or
medium intensity obstruction lighting. We do, however, have
information from the ``towpub'' database, which indicates that
when the painting and lighting requirements were assigned to the
tower in 1975, red obstruction lighting was recommended by the
FAA. In any event, because Source's tower is over 200 feet and
had no working lights on its antenna structure when it was
inspected by the Commission agent, Source is in violation of
Section 17.51 of the Rules, regardless of its specific lighting
requirements.
1047 C.F.R. § 1.80.
1147 U.S.C. § 503(b)(2)(D).
1247 U.S.C. §§ 4(i), 4(j), 503(b); 47 C.F.R. §§ 0.111, 0.311,
1.80.
1347 C.F.R. § 1.1914.