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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Tidewater Communications LLC ) File Number EB-05-NF-054
Owner of Antenna Structure # ) NAL/Acct. No. 200632640004
1024387 ) FRN # 0009269473
Gross Point Farms, MI )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 23, 2005
By the Resident Agent, Norfolk Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Tidewater Communications
LLC (``TC''), owner of antenna structure # 1024387,
apparently willfully violated Section 17.51(a) of the
Commission's Rules (``Rules'')1 by failing to exhibit
obstruction lighting on antenna structure # 1024387. We
conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended (``Act''),2 that TC is apparently
liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. Antenna structure # 1024387 is 166.4 meters
overall height and located at 700 East Indian River Road,
Norfolk, Virginia; with coordinates of North 36 50' 05" and
West 076 16' 09". TC is the registered owner of the
structure. The Antenna Structure Registration (``ASR'')
specifies that the structure must be painted and lit.
3. On June 4, 2005, an agent from the Commission's
Norfolk Office of the Enforcement Bureau (``Norfolk
Office'') observed antenna structure # 1024387 after sunset
with a top and middle flashing beacon extinguished. The
Federal Aviation Administration (``FAA'') had not issued a
Notice to Airmen (``NOTAM'') regarding the lighting outage.
4. On June 6, 2005, the agent from the Norfolk Office
interviewed employees of TC about the tower lighting outage
observed by the agent on June 4, 2005. TC employees stated
that TC did not conduct a visual observation of the antenna
structure's lighting once every 24 hours and did not employ
an automatic light indicating system or an automatic light
alarm system. The employees stated that TC used a manual
light indicating system to check the status of the lighting
on the antenna stucture once every 24 hours and then logged
the results. According to written instructions, employees
were to notify TC's chief operator and the FAA immediately
of any lighting problems. The agent inspected the lighting
logs for the antenna structure and found that TC noted a
lighting outage in its logs on June 3, 4, and 5, 2005 and
did not notify the FAA of the outage until June 5, 2005.
Additionally, the agent observed that TC had listed a
lighting outage in its logs on August 4, 2004 but did not
notify the FAA of the outage until August 10, 2004.3 The
chief operator for the station stated that he believed the
logs were accurate. On June 6, 2005, TC employees stated
that they were aware that the antenna structure was required
to be painted and lit, that the structure's lights were to
be monitored once every 24 hours, and that they were
required to notify the FAA immediately of any known
extinguishments of top steady or flashing lights which last
more than 30 minutes.4 The employees did not explain why TC
failed to notify the FAA of the lighting outages, as
required, on August 4, 2004, June 3, 2005, and June 4, 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 there under, 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
6. Section 17.51(a) states that all red obstruction
lighting shall be exhibited from sunset to sunrise unless
otherwise specified.6 On June 3 and June 4, 2005, a TC
employee logged lighting problems at 8:30 p.m., but did not
notify the chief operator and the FAA of the lighting
problems and did not visually inspect the antenna structure
to determine which lights were extinguished. On June 4,
2005, at approximately 9:45 p.m., an agent from the Norfolk
Office observed that the top and middle red obstruction
lighting beacons on antenna structure # 1024387 were
extinguished after sunset and that a NOTAM had not been
issued by the FAA. Accordingly, on June 4, 2005, TC failed
to notify the FAA immediately of a lighting outage that
required more than 30 minutes to correct.7 TC employees
only notified the FAA of a lighting outage on June 5, 2005.
7. Based on the evidence before us, we find that TC
apparently willfully violated Section 17.51(a) of the Rules
by failing to comply with prescribed lighting requirements.
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 failure to comply with prescribed
lighting is $10,000.8 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.9 Applying
the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that TC
is apparently liable for a $10,000 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, Tidewater Communications LLC, is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violation of
Section 17.51(a) of the Rules.10
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, Tidewater Communications LLC, 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, Norfolk Office; 1457 Mount Pleasant Road, Suite 113;
Chesapeake VA 23322 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: Associate Managing
Director, Financial Operations, 445 12th Street, S.W., Room
1A625, 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 its address of record.
FEDERAL COMMUNICATIONS
COMMISSION
Joseph P. Husnay
Resident Agent
Norfolk Office
South Central Region
Enforcement Bureau Tidewater Communications LLC
73 Kercheval Ave Suite 201
Gross Point Farms MI 48236
Tidewater Communications LLC
73 Kercheval Ave Suite 201
Gross Point Farms MI 48236
Tidewater Communications LLC
73 Kercheval Ave Suite 201
Gross Point Farms MI 48236
Tidewater Communications LLC
73 Kercheval Ave Suite 201
Gross Point Farms MI 48236
_________________________
147 C.F.R. § 17.51(a).
247 U.S.C. § 503(b).
3Although we propose forfeitures only for apparent
violations within the last year, we note TC's noncompliance
in 2004 as useful background demonstrating the context of
the misconduct that is within the statute of limitations
period and thus covered by this NAL. Moreover, we may
consider prior violations in determining the appropriate
forfeiture amount for violations within the statute of
limitations. See Roadrunner Transp. Inc., Forfeiture Order,
15 FCC Rcd 9669, 9671 (2000).
4See 47 C.F.R. § 17.48. TC received a Notice of Violation
on November 16, 2001 for failing to exhibit obstruction
lighting on antenna structure # 1028287, located in Suffolk,
Virginia.
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).
647 C.F.R. § 17.51.
7See 47 C.F.R. § 17.48.
8See 47 C.F.R. § 1.1914.
947 U.S.C. § 503(b)(2)(D).
1047 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314,
1.80, 17.51(a).
8See 47 C.F.R. § 1.1914.