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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Time Warner Cable, Inc. ) File Number EB-05-LA-234
)
Antenna Structure Registrant ) NAL/Acct. No. 200632900001
ASR #1240108 ) FRN: 0007556251
Garden Grove, California )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December
21, 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 Time Warner Cable, Inc. ("TWC"),
registered owner of antenna structure # 1240108, in Garden
Grove, California, apparently willfully and repeatedly violated
Section 303(q) of the Communications Act of 1934, as amended,
(``the Act''), 1 and Section 17.50 of the Commission's Rules
("Rules")2 by failing to ensure that the antenna structure was
repainted as often as necessary to maintain good visibility.
We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"),3 that TWC is apparently liable
for a forfeiture in the amount of ten thousand dollars
($10,000).
II. BACKGROUND
2. On August 31, 2005, an agent from the Enforcement
Bureau's Los Angeles Office conducted an inspection of TWC's
antenna structure #1240108 located at 7441 Chapman Avenue,
Garden Grove, California. Antenna structure #1240108 is
required to have painting and lighting in accordance with
Chapters 3, 4, 5 and 12 of FAA Circular 70/7460-1K.4
Specifically, Chapter 3 of the FAA Circular requires the
structure to 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.5 During
the inspection, the Los Angeles agent observed that the paint
on the structure was severely faded and that the paint bands
could not be distinguished when viewed from the base of the
structure or at a distance of one-fourth of a mile from the
structure. When interviewed by the agent on August 31, 2005,
TWC's Director of Technical Operations stated that the antenna
structure had not been painted for over eleven years and that
the company was in the process of hiring a contractor to paint
the structure. According to documents obtained by the agent
from TWC, TWC received a proposal on April 5, 2005 to have
antenna structure #1240108 painted.
3. On October 11, 2005, the Los Angles agent conducted a
follow-up-inspection of antenna structure #1240108. The agent
observed that the structure had not been painted, that the
paint on the structure was severely faded, and that the paint
bands could not be distinguished when viewed from the base of
the structure or at a distance of one-fourth of a mile from the
structure.
III. DISCUSSION
4. 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.6 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.7
5. Section 303(q) of the Act states that antenna structure
owners shall maintain the painting and lighting of antenna
structures as prescribed by the Commission. 8 Part 17 of the
Rules is designed to promote air safety, by prescribing
regulations for antenna structures that constitute or that
potentially constitute "a menace to air navigation."9 Section
17.21(a) of the Rules states antenna structures shall be
painted and lighted when they exceed 60.96 meters (200 feet) in
height above the ground or they require special aeronautical
study.10 Although antenna structure #1240108 is 60.6 meters in
height, it has been assigned painting and lighting
specifications.11
6. 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.12
As described above, the registration for antenna structure
#1240108 specifically requires that the structure 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.
7. On August 31, 2005, a Los Angeles agent inspected
antenna structure #1240108 and observed that the paint on the
structure was severely faded, and that the paint bands could
not be distinguished when viewed from the base of the structure
or at a distance of one-fourth of a mile from the structure. A
representative from TWC acknowledged that the structure had not
been painted for eleven years and that TWC had received an
April 5, 2005, proposal to paint the structure. When the Los
Angeles agent performed a follow-up inspection of the structure
on October 11, 2005, he found the condition of the paint on the
structure unchanged since his August 31, 2005, inspection. TWC
was aware that the paint on antenna structure #1240108 was
severely faded as of August 31, 2005, and perhaps since April
5, 2005, however, the paint on the antenna structure remained
severely faded as recently as October 11, 2005. Therefore,
TWC's violation is willful. The violation occurred on more
than one day, therefore, it is repeated. Based on the evidence
before us, we find Time Warner Cable, Inc., apparently
willfully and repeatedly violated Section 17.50 of the Rules by
failing to ensure that antenna structure #1240108 was repainted
as often as necessary to maintain good visibility.
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 comply with prescribed antenna structure
marking is $10,000.13 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.14 A mere proposal to paint the
structure does not relieve TWC of liability. Applying the
Forfeiture Policy Statement, Section 1.80, and the statutory
factors to the instant case, we conclude that TWC 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, Time Warner Cable, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for violations of Section 303(q) of
the Act, and Section 17.50 of the Rules.15
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, Time Warner Cable, Inc. 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, Western Region,
Los Angeles Office, 18000 Studebaker Rd., Suite 660, Cerritos,
California, 90703 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, Room 1A625, 445 12th Street, S.W.,
Washington, D.C. 20554.16
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 Time
Warner Cable, Inc.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
_________________________
147 U.S.C. § 303(q).
247 C.F.R. § 17.50.
347 U.S.C. § 503(b).
4See FAA Circular Number 70/7460-1K, Chapter 3. The antenna
structure registration (``ASR'') for antenna structure #1240108,
requiring the painting and lighting specifications, was issued by
the Commission on August 28, 2003.
5Chapter 3 makes this requirement specific to structures 700 feet
or less in height. According to its ASR, antenna structure
#1240108 is 60.6 meters in height, or, approximately 196 feet.
6Section 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).
7Section 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.''
8Section 303(q) of the Act gives the Commission authority to
regulate certain antenna structures if and when such structures
constitute, or there is a reasonable possibility that they may
constitute, a menace to air navigation. 47 U.S.C. § 303(q).
947 C.F.R. § 17.1(a).
1047 C.F.R. § 17.21(a). See Max Media of Montana, LLC, 18 FCC
Rcd 21375 (2003).
11Antenna structure #1240108 is proximate to the Los Alamitos,
California military airport.
1247 C.F.R. § 17.50.
1312 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
1447 U.S.C. § 503(b)(2)(D).
1547 U.S.C. §§ 303(q), 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314,
1.80, 17.50.
16See 47 C.F.R. § 1.1914.