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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Trap Rock Industries, Inc. ) File Number EB-05-NY-
) 072
Owner of Antenna Structure )
ASR # 1209546 ) NAL/Acct. No.
Kingston, New Jersey ) 200632380001
FRN 0003 3092 83
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 21, 2005
By the District Director, New York Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Trap Rock Industries, Inc. ("Trap
Rock''), owner of antenna structure 1209546, located in
Franklin Township, New Jersey, apparently willfully and
repeatedly violated Section 17.50 of the Commission's Rules
("Rules")1 by failing to clean and repaint its antenna
structure as often as necessary to maintain good visibility.
In addition, we admonish Trap Rock for failing to post the
antenna structure registration number at the base of the tower.
We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"),2 that Trap Rock is apparently
liable for a forfeiture in the amount of ten thousand dollars
($10,000).
II. BACKGROUND
2. On March 16, 2005, an agent in the Commission's New
York Office conducted an inspection of antenna structure
1209546 with a Trap Rock employee. During the inspection, the
agent observed that the Antenna Structure Registration (ASR)
number was not posted. The agent further observed that the
white paint on the tower was badly faded, revealing significant
amounts of an underlying layer of orange paint. The faded
white paint on the uppermost white band revealed so much orange
paint that the white band was indistinguishable from the
adjacent orange bands. The Antenna Structure Registration
(ASR) for this tower requires that the tower be painted and
lighted in accordance with FAA Chapters 3, 4, 5 and 13 in FAA
Circular Number 70/7460-1J. Chapter 3 provides that antenna
structures shall display alternate bands of aviation orange and
white paint, that the bands be equal in width, and
approximately one-seventh the height of the structure for
towers 700 feet or less.
3. During the March 16, 2005 inspection, the Trap Rock
employee stated to the agent that the tower is visually
inspected by Trap Rock's chief maintenance technician. The
agent informed the Trap Rock employee of the painting and
posting violations and advised him that the tower must be
repainted as soon as possible to conform to the required
specifications and that the ASR number must be posted.
4. On May 3, 2005, the agent conducted a follow-up
inspection of Trap Rock's antenna structure 1209546 with Trap
Rock's chief maintenance technician and observed that the
condition of the tower paint was the same as it was during the
March 16, 2005 inspection. In addition, the ASR number still
was not posted. The chief maintenance technician stated that
he visually observes the tower twice a week, and was aware of
the appearance of the paint on the tower. The agent informed
the technician of the painting and posting violations, and
advised him that they must be corrected as soon as possible.
5. On May 4, 2005, the agent contacted Trap Rock's
administrative offices by telephone, and spoke to Trap Rock's
corporate secretary. The agent informed the corporate
secretary of the painting and posting violations on the tower,
and directed him to correct the problems as soon as possible.
The corporate secretary stated that Trap Rock had arranged for
the tower to be painted and for the signs to be made and
posted.
III. DISCUSSION
6. 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
7. Section 17.50 of the Commission's Rules states that
antenna structures requiring painting shall be cleaned or
repainted as often as necessary to maintain good visibility.
As described above, the registration for antenna structure
1209546 specifically requires that the tower be painted with
alternate bands of aviation orange and white paint and that the
bands be equal in width and approximately one-seventh the
height of the structure for towers 700 feet or less.
8. On March 16, 2005, a Commission agent conducted an
inspection of Trap Rock's antenna structure with a Trap Rock
employee. The agent observed that the white paint on the tower
was so badly faded that the white band was indistinguishable
from the adjacent orange band, thus diminishing the overall
visibility of the tower. Although the agent advised the Trap
Rock employee that the tower must be repainted as soon as
possible to cure the poor visibility, the tower still had not
been repainted when the agent conducted a follow-up inspection
on May 3, 2005. During the follow-up inspection, Trap Rock's
chief maintenance technician stated that he visually inspects
the tower twice a week and that he was aware of the appearance
of the paint on the tower.
9. Section 17.4(g) of the Commission's Rules provides that
the antenna structure registration number must be displayed in
a conspicuous place so that it is readily visible near the base
of the tower. At the time of the inspection, the agent
observed that there was no antenna structure registration
number at the base of the tower.
10. Based on the evidence before us, we find that Trap
Rock apparently willfully and repeatedly violated Section 17.50
of the Rules by failing to clean and repaint its antenna
structure as often as necessary to maintain good visibility.
We also admonish Trap Rock for failing to post an antenna
structure registration number at the base of its tower in
violation of Section 17.4(g).
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 failing to comply with prescribed antenna structure
marking is $10,000.5 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.6 Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to
the instant case, we conclude that Trap Rock is apparently
liable for a ($10,000) forfeiture.
IV. ORDERING CLAUSES
12. 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, Trap Rock Industries, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for violation of Section 17.50 of
the Rules.7
13. IT IS FURTHER ORDERED that Trap Rock is hereby
ADMONISHED for its violation of Section 17.4(g) of the
Commission's Rules.
14. 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, Trap Rock Industries, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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.
16. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast
Region, New York Office, 201 Varick Street, New York, NY 10014,
and must include the NAL/Acct. No. referenced in the caption.
17. 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.
18. 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, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.8
19. 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 Trap Rock
Industries, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
_________________________
147 C.F.R. § 17.50.
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.''
512 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
647 U.S.C. § 503(b)(2)(D).
747 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
17.50.
8See 47 C.F.R. § 1.1914.