Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Nextel of California, Inc ) File Number: EB-05-LA-176
)
Owner of Antenna Structure ) NAL/Acct. No. 200632900002
Highland, California ) FRN: 0003293511
ASR #1245078 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November
18, 2005
By the District Director, Los Angeles Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Nextel of California, Inc ("Nextel"),
owner of antenna structure #1245078, in Highland, California,
apparently willfully and repeatedly violated Section 17.23 of
the Commission's Rules ("Rules")1 by failing to comply with the
antenna structure lighting requirements specified for antenna
structure #1245078. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended ("Act"),2 that
Nextel is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000). We also admonish Nextel for
its violation of Section 17.4(g) of the Rules, which requires
antenna structure owners to display, in a conspicuous place
near the base of the antenna, the structure's antenna structure
registration number.3
II. BACKGROUND
2. On May 4, 2005, an agent from the Enforcement Bureau's
Los Angeles Office observed antenna structure #1245078 in
Highland, California. The structure had the appearance of a
palm tree. Green-colored cellular antennas and imitation palm
fronds were mounted at the top of a brown-colored pole. The
structure was not equipped with red obstruction lights. The
antenna structure registration (``ASR'') number was not
displayed. 4 Subsequent investigation determined that the
structure's ASR number is 1245078 and that the registrant of
the structure is Nextel.5
3. According to antenna structure #1245078's antenna
structure registration, the structure is required to have
``Obstruction Marking and Lighting'' in accordance with the
applicable paragraphs of Federal Aviation Administration
(``FAA'') Circular Number 70/7460-1K. Specifically, the FAA
determination for this structure requires top-mounted, red
obstruction lights.6
4. On July 8, 2005, a Los Angeles agent again inspected
the antenna structure and found that no lights were visible on
the structure. On July 13 and 15, 2005, a Los Angeles agent
spoke on the telephone with a Nextel employee and discussed the
lighting requirements for the structure. On July 16, 2005,
Nextel notified the Los Angeles Office, via electronic mail,
that lights had been mounted on the structure.
5. On July 25, 2005, the Los Angeles Office mailed a
Letter of Inquiry (``LOI'') to Nextel asking whether Nextel was
aware of the lighting requirements for antenna structure
#1245078, whether Nextel was aware that the lighting was
functioning, and whether there had been any changes to the
structure's FAA determination. Nextel was also asked if it was
aware of its responsibility to display the ASR number for
antenna structure #1245078.
6. In a letter dated August 11, 2005, Nextel replied to
the LOI. Nextel stated that there had been no change in the
FAA's determination since July 23, 2004. Nextel explained that
a previous, June 3, 2003 FAA determination did not require
lighting for the structure. Subsequently, after the tower's
height was increased by six feet (by the addition of imitation
palm fronds), a new July 23, 2004 FAA determination was issued,
which did require lighting of the structure. Nextel stated
that it did not notice the change in lighting requirements
because of ``an administrative oversight.'' Nextel stated that
lights were installed on the tower after being notified by the
Los Angeles agent in July 2005. Nextel attached a copy of the
July 23, 2004 FAA determination requiring the antenna structure
to have red obstruction lights, in conformance with Chapters 4,
5 and 12 of FAA Circular 70/7460-1K. Nextel also acknowledged
that it was aware of its responsibility to display the ASR
number for the antenna structure in a conspicuous place and the
ASR number was posted on or about July 16, 2005.
III. DISCUSSION
7. 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.7 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.8
8. Section 17.23 of the Rules requires that registered
antenna structures conform to the mandatory FAA painting and
lighting recommendations set forth on the FAA determination
issued to the structure owner.9 The FAA determination for
antenna structure #1245078 requires that the structure have a
``red obstruction light system.''10 Between May 5 and July 8,
2005, a Los Angeles agent observed that antenna structure
#1245078 was not equipped with lighting. Nextel acknowledges
that the lights were not installed until July 16, 2005, and
that it had received a determination, dated July 23, 2004, from
the FAA stating that red obstruction lighting was required on
antenna structure #1245078.
9. Nextel received notice from the FAA that red
obstruction lighting was required for antenna structure
#1245078, but Nextel failed to install such lighting on the
antenna structure. Therefore, Nextel's violation was willful.
Nextel's violation occurred on more than one day, therefore, it
was repeated. Based on the evidence before us, we find that
Nextel apparently willfully and repeatedly violated Section
17.23 of the Rules by failing to light antenna structure
#1245078 in accordance with the specifications set forth on the
structure's FAA determination and its antenna structure
registration.
10. 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 comply with prescribed lighting and/or
marking is $10,000.11 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.12 Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to
the instant case, we conclude that Nextel is apparently liable
for a $10,000 forfeiture. Further, we admonish Nextel for
failing to post the ASR number for antenna structure #1245078
in a conspicuous place near the base of the antenna, in
violation of Section 17.4(g) of the Rules.
IV. ORDERING CLAUSES
11. 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, Nextel of California, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for violations of Section 17.23 of
the Rules.13
12. IT IS FURTHER ORDERED that Nextel of California,
Inc., IS ADMONISHED for failing to display the antenna
structure registration number for antenna structure #1245078 in
a conspicuous place near the base of the antenna, in accordance
with Section 17.4(g) of the Rules.14
13. 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, Nextel of California, Inc SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
14. 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.
15. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Los Angeles Office, 18000 Studebaker Road, Suite 660, Cerritos,
California, 90703 and must include the NAL/Acct. No. referenced
in the caption.
16. 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.
17. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Associate Managing Director
- Financial Operations, Room 1A625, 445 12th Street, S.W.,
Washington, D.C. 20554.15
18. 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 Nextel of
California, Inc.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
_________________________
147 C.F.R. § 17.23.
247 U.S.C. § 503(b).
347 C.F.R. § 17.4(g).
447 C.F.R. § 17.4(g) requires the Antenna Structure Registration
(``ASR'') number to be displayed in a conspicuous place so that
it is readily visible near the base of the antenna structure.
5On June 22, 2005, the Los Angeles District Director telephoned
the FAA's Riverside Automated Flight Service Station to determine
if a Notice to Airman (``NOTAM'') had been issued for antenna
structure #1245078. Having found that a NOTAM had not been
issued, the Los Angeles Office requested that one be issued for
the structure.
6Per FAA Circular Number 70/7460-1K, Chapters 4, 5, 12.
7Section 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).
8Section 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.''
947 C.F.R. § 17.23.
10FAA Advisory Circular 70/7460-1K, Chapters 4, 5.
1112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1247 U.S.C. § 503(b)(2)(D).
1347 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
17.23.
1447 C.F.R. §17.4(g).
15See 47 C.F.R. § 1.1914.