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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Arcom Communications ) File Number: EB-
) 05-SJ-005
Owner of Antenna Structure # )
1249670 ) NAL/Acct. No.: 200532680005
St. Croix, United States Virgin )
Islands FRN: 0010760965
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 17,
2005
By the Resident Agent, San Juan Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Arcom Communications (``Arcom''), owner
of antenna structure #1249670 located at or near geographical
coordinates 17º 45? 17.88? N, 064º 47? 58.67? W at Blue
Mountain, St. Croix, USVI, apparently willfully and repeatedly
violated Section 17.4(a)(1) of the Commission's Rules
(``Rules'')1 by failing to register its antenna structure. We
conclude, pursuant to Section 503(b) of the Communications Act
of 1934, as amended (``Act''),2 that Arcom is apparently liable
for forfeiture in the amount of three thousand dollars
($3,000).
II. BACKGROUND
2. On May 5, 2004, in response to a complaint of
interference, an agent from the Commission's San Juan Office of
the Enforcement Bureau (``San Juan Office'') conducted an
inspection at the Blue Mountain transmitter site. While there,
the agent observed the digging of the foundation for an antenna
structure being built for Arcom.
3. On February 8, 2005, in response to a complaint that
Arcom recently constructed an antenna structure at the Blue
Mountain site that was not registered or marked, the agent
searched the Commission's TOWAIR database, the database used to
determine if registration of an antenna structure is required.
The agent found that Arcom's antenna structure at the Blue
Mountain site required registration because of its proximity to
the Alexander Hamilton International Airport on the island of
St. Croix, USVI. The agent also searched the Commission's
antenna structure registration (``ASR'') database and found
that the antenna structure was not registered.
4. In a series of conversations and emails during the
month of February 2005, the agent advised Arcom that the
antenna structure should have been registered prior to
construction and that it should contact the local Federal
Aviation Administration (``FAA'') office. In response to a
request by the agent for a valid FAA determination of no
hazard, Arcom provided an FAA study that expired August 11,
2003. On July 13, 2005, Arcom notified the agent that it had
received a valid FAA determination of no hazard that day and
that the tower would be registered. Arcom did not register its
antenna structure until August 10, 2005.
III. DISCUSSION
5. 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.3 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.4
6. Section 17.4(a)(1) of the Rules states that the owner
of any proposed or existing antenna structure that requires
notice of proposed construction to the FAA must register the
structure prior to construction or alteration. Section
17.7(b)(1) of the Rules5 states that a notification to the FAA
is required for any construction or alteration of greater
height than an imaginary surface extending outward and upward
at a slope of 100 to 1 for a horizontal distance of 20,000 feet
from the nearest point of the nearest runway of an airport that
is available for public use. According the TOWAIR database,
the antenna structure in question requires notification to the
FAA and registration because of its proximity to the Alexander
Hamilton International Airport. Arcom did not have a valid FAA
determination of no hazard when it started construction of its
antenna structure at the Blue Mountain site in May 2004.
Construction of Arcom's antenna structure was completed on or
around February 8, 2005, but Arcom failed to register its
antenna structure prior to construction. Arcom's antenna
structure remained unregistered until August 10, 2005, 27 days
after it received a valid FAA determination of no hazard and
more than a year after the structure was required to be
registered.
7. Based on the evidence before us, we find that Arcom
apparently willfully and repeatedly violated Section 17.4(a)(1)
of the Rules by failing to register antenna structure #1249670,
located in Blue Mountain, St.Croix, USVI.
8. 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 failing to file required forms is
$3,000.6 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.7 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that Arcom is apparently liable for a
$3,000 forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's
Rules, Arcom Communications is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of three thousand
dollars ($3,000) for violation of Section 17.4(a)(1) of the
Rules.8
10. 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, Arcom Communications 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 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 Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106.
12. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, San Juan Office, US Federal Building Room 762, San
Juan, PR, 00918-1731 and must include the NAL/Acct. No.
referenced in the caption.
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. 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. 20554.8
15. 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 Arcom
Communications at its address of record and Arcom's counsel,
Matthew J. Plache, Catalano & Plache PLLC, 3221 M Street NW,
Washington, DC 20007.
FEDERAL COMMUNICATIONS COMMISSION
Reuben Jusino
Resident Agent,
San Juan Office
South Central Region
Enforcement Bureau
_________________________
147 C.F.R. § 17.4(a)(1).
247 U.S.C. § 503(b).
3Section 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).
4Section 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.''
547 C.F.R § 17.7(b)(1).
612 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
747 U.S.C. § 503(b)(2)(D).
8See 47 C.F.R. § 1.1914.
8See 47 C.F.R. § 1.1914.