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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Communications Relay Corporation ) File Number EB-04-LA-281
)
Antenna Structure Registrant ) NAL/Acct. No. 200632900007
ASR #1019247 ) FRN 0014046999
Claremont, California )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
19, 2006
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 Communications Relay Corporation (``CRC''),
willfully and repeatedly violated Section 303(q) of the
Communications Act of 1934, as amended, (``the Act''), 1 and
Sections 17.23, 17.47, 17.48, 17.49, and 17.57 of the
Commission's Rules ("Rules")2 by failing to comply with the
antenna structure registration (``ASR'') lighting, monitoring,
record keeping, and notification requirements specified for
antenna structure #1019247. We conclude, pursuant to Section
503(b) of the Act,3 that CRC is apparently liable for a
forfeiture in the amount of thirteen thousand dollars ($13,000).
II. BACKGROUND
2. According to the Commission's ASR database, antenna
structure #1019247 is required to have painting and lighting in
accordance with Chapters 3, 4, 5 and 13 of FAA Circular 70/7460-
1J. Specifically, the structure is required to be painted and
have obstruction lighting consisting of at least one flashing red
beacon on top and two steady-burning sidelights on opposite sides
at the midpoint.4 On December 2, 2004, agents from the
Enforcement Bureau's Los Angeles Office observed that no lights
were functioning on antenna structure #1019247. A review of
Commission records showed KSCI, Inc. as the registrant of antenna
structure #1019247. On December 3, 2004, the Los Angeles Office
notified the Federal Aviation Administration's (``FAA's'')
Hawthorne Automated Flight Service Station (``FSS'') of the light
outage. On January 25, 2005, a Los Angeles agent conducted a
follow-up inspection of the structure and confirmed that no
lights were functioning on the structure.
3. On January 26, 2005, a Los Angeles agent contacted
KSCI, Inc., and was advised that the structure had been sold to
CRC in September, 2004. The agent contacted a CRC service
representative and advised him that the lights were not
functioning on antenna structure #1019247. Later on January 26,
2005, James Kay (``Kay''), the president of CRC, advised the
agent that CRC would make any repairs that would be required.
4. On January 27, 2005, Kay informed the Los Angeles
Office that a relay had burned out on the lighting system on
antenna structure #1019247 but that the lighting system was now
operational. Subsequent to Kay's report that the lights were
operational, however, the Los Angeles Office received a report
that no tower lights were visible on the structure.
5.On February 10, 2005, a Los Angeles agent again contacted
CRC and relayed the reports that the lights on antenna structure
#1019247 were not operational and reminded CRC that lighting was
required on the structure. Kay and the CRC service
representative responded that CRC was purchasing all new lights
to install on the structure.5 On February 17, 2005, a Los
Angeles agent spoke to the CRC service representative who
reported that the tower light's electrical problem had been
repaired, but that an alarm system for reporting light failures
was not yet installed. The representative also told the agent
that he was responsible for daily observations of the tower
lights. On February 25, 2005, a Los Angeles agent made an
observation of antenna structure #1019247 and found that the
lighting on the structure was operational.
6.On May 3, 2005, a Los Angeles agent reviewed the
Commission's ASR database and found it continued to show that
antenna structure #1019247 was registered to KSCI, Inc. On
August 25, 2005, the Los Angeles Office sent a Letter of Inquiry
(``LOI'') to CRC, which requested confirmation of CRC's continued
ownership of antenna structure #1019247. The LOI also requested
information concerning whether CRC was aware of the requirements
of Sections 17.47, 17.48, 17.49 and 17.57 of the Rules; when CRC
became aware of these requirements; and what efforts CRC had
taken to maintain compliance with these requirements.
7.On September 14, 2005, CRC replied to the LOI. In its
reply, CRC confirmed that it acquired antenna structure #1019247
in August of 2004, and that it was still the owner of the
structure. CRC also acknowledged that it had not yet notified
the Commission of the change in ownership of the structure. CRC
stated that it had ``purchased the tower with the understanding
from the previous owner that it was in full compliance with all
applicable regulatory requirements.'' CRC also stated that it
was generally aware of the Commission's tower regulations. CRC
acknowledged that it was not aware of the light outages on
antenna structure #1019247 until notified by the Los Angeles
Office in January, 2005. CRC explained the lighting problem as
being caused by a power line surge, one that is a recurring
problem at the site. CRC also stated that it had ordered a new
beacon lighting system with automated monitoring capabilities,
but provided no response regarding any other efforts to comply
with Section 17.47, which requires either daily observations of
the lighting system by the antenna structure owner or an
automatic alarm system designed to detect and indicate any
failure of the lighting system. CRC also failed to explain its
efforts to comply with Section 17.48, which requires notification
to the FAA of failures and repairs; or Section 17.49, which
requires detailed records be kept of lighting failures,
adjustments, repairs and all FAA notifications.
8.On September 26, 2005, CRC filed an application to notify
the Commission of the ownership transfer of the antenna structure
from KSCI, Inc. to CRC.6 On September 29, 2005, CRC sent a
supplemental reply to the LOI stating that a new lighting system
and alarm system had been purchased and would soon be installed
on antenna structure #1019247.
III. DISCUSSION
9.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
10. 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. 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 Antenna
structure #1019247 is 62.1 meters in height and is assigned
painting and lighting specifications.
11. 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 Notice issued to
the structure owner.11 The FAA Notice for antenna structure
#1019247 requires that the structure be painted and have
obstruction lighting consisting of at least one flashing red
beacon on top and two steady-burning side lights at the
midpoint.12 On December 2, 2004, Los Angeles agent observed that
the lighting on antenna structure #1019247 was not functioning.13
On January 25, 2004, a Los Angeles agent again observed that the
lighting on the antenna structure was not functioning. Initial
repairs were made by CRC after being notified by the Los Angeles
Office on January 26, 2005. Shortly thereafter, the Los Angeles
Office received reports that the lights had again failed. These
reports were confirmed by CRC's field service representative on
February 10, 2005, and by CRC, in its response to the Los Angeles
LOI, when it explained the lighting problem as being caused by a
recurring power line problem at the site. Consequently, we find
that CRC willfully and repeatedly failed to comply with the
lighting requirements mandated by its ASR and Section 17.23 of
the Rules.
12. Section 17.47(a)(1) of the Rules requires the owner of
any antenna structure which is registered with the Commission and
has been assigned lighting specifications to make an observation
of the antenna structure's lights at least once every 24 hours
either visually or by observing an automatic properly maintained
indicator designed to register any failure of such lights.14
Alternatively, Section 17.47(a)(2) of the Rules requires antenna
structure owners to provide and properly maintain an automatic
alarm system designed to detect any failure of such lights and to
provide indication of such failure to the owner.15 CRC
acknowledged that it first became aware of the lighting failures
on antenna structure #1019247 when it was contacted by a Los
Angeles agent in January, 2005. On February 17, 2005, CRC's
service company representative reported to a Los Angeles agent
that an alarm system for reporting light failures was not yet
installed and that he was responsible for daily observations of
the tower lights. On September 29, 2005, CRC reported that it
had finally purchased a lighting system and an alarm system and
that they would both soon be installed. Although CRC acted to
repair the lights after being notified by the Los Angeles agent
about the initial outage, that outage and the subsequent outages
show that CRC failed to ensure that daily observations were made,
or an alarm system installed. Consequently, we find that CRC
willfully and repeatedly failed to comply with Section 17.47 of
the Rules.
13. Section 17.48 of the Rules requires the owner of any
antenna structure which is registered with the Commission and has
been assigned lighting specifications to report immediately by
telephone or telegraph to the nearest Flight Service Station or
office of the FAA any observed or otherwise known extinguishment
or improper functioning of any top steady burning light or any
flashing obstruction light, regardless of its position on the
antenna structure, not corrected within 30 minutes.16 After
observing that the lighting on antenna structure #1019247 was not
functioning on December 2, 2005, a Los Angeles agent informed the
FAA. After the subsequent light outages on the antenna
structure, the Los Angeles agent, on February 10, 2005, again had
to notify the FAA of the light outages. In the LOI, the Los
Angeles Office specifically requested statements and supporting
documentation regarding CRC's efforts to comply with Section
17.48. In response to the LOI, CRC provided no statements or
other evidence that it ever notified the FAA of completed
repairs, or of the additional extinguishment; only that it is
generally aware of the Commission's tower regulations. CRC's lack
of vigilance concerning observation of the lighting system on
antenna structure #1019247 also resulted in its failure to notify
the FAA within 30 minutes of the failure of the obstruction
lighting on CRC's antenna structure. Consequently, we find that
CRC willfully and repeatedly failed to comply with section 17.48
of the Rules.
14. Section 17.49 of the Commission's Rules requires the
owner of each antenna structure which is registered with the
Commission and has been assigned lighting specifications to
maintain a record of any observed or otherwise known
extinguishment or improper functioning of a structure light and
include information concerning the date, time and nature of the
extinguishment or improper functioning; the date and time of FAA
notification; and the date, time and nature of adjustments,
repairs, or replacements made.17 The Los Angeles Office's LOI
specifically requested statements and supporting documentation
regarding the CRC's efforts to comply with Section 17.49, but no
such evidence was included in CRC's reply only CRC's statement
that it is generally aware of the Commission's tower regulations.
Consequently, we find that CRC willfully and repeatedly failed to
comply with Section 17.49 of the Rules.
15. Section 17.57 of the Commission's Rules requires that
the owner of an antenna structure for which an Antenna Structure
Registration Number has been obtained must immediately notify the
Commission hours upon any change in structure height or change in
ownership information.18 CRC acknowledged that it purchased the
tower in approximately August of 2004, but, despite two
notifications from the Los Angeles Office, CRC did not file an
application to notify the Commission of the ownership transfer
until September 26, 2005.19 Although CRC eventually filed an
application, as required by Section 17.57 of the Rules, it did so
only after repeated notifications from the Los Angeles Office.
The Commission has stated in the past that an entity is expected
to correct errors when they are brought to the entity's attention
and that such correction is not grounds for a downward adjustment
in a forfeiture.20 While CRC has finally filed the appropriate
paperwork with the Commission, it did not do so immediately, as
required by our Rules. Therefore, we find that CRC willfully and
repeatedly failed to comply with Section 17.57 of the Rules.
16. Based on the evidence before us, we find that CRC
willfully and repeatedly violated Section 303(q) of the Act and
Sections 17.23, 17.47, 17.48, 17.49, and 17.57 of the Rules by
failing to comply with the antenna structure registration,
lighting, monitoring, record keeping, and notification
requirements for antenna structure #1019247.
17. 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 the base forfeiture amount for failing to comply with the
prescribed lighting and/or marking for an antenna structure is
$10,000, and the base forfeiture amount for failure to file
required forms or information, such as an antenna structure
registration, with the Commission is $3,000.21 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.22 Applying the
Forfeiture Policy Statement, Section 1.80, and the statutory
factors to the instant case, we conclude that CRC is apparently
liable for a $13,000 forfeiture.
IV. ORDERING CLAUSES
18. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules,
Communications Relay Corporation is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of thirteen
thousand dollars ($13,000) for violations of Section 303(q) of
the Act, and Sections 17.23, 17.47, 17.48, 17.49 and 17.57 of the
Rules.23
19. 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, Communications
Relay Corporation. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
20. 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 may be made by wire
transfer may be made to ABA Number 04000261, receiving bank
Mellon Bank, and account number 911-6106.
21. 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.
22. 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.
23. 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.
20554.24
24. 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
Communications Relay Corporation, P.O. Box 7835, Van Nuys, CA
91409 and to Robert J. Keller, P.C., P.O. Box 33428, Farragut
Station, Washington, D.C. 20033-0428.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
_________________________
147 U.S.C. § 303(q).
247 C.F.R. §§ 17.23, 17.47, 17.48, 17.49 and 17.57.
347 U.S.C. § 503(b).
4See FAA Circular Number 70/7460-1J, Chapters 3, 4, 5, 13.
5The agent also contacted the FAA's Hawthorne Automated Flight
Service Station and reported the outage.
6See Application No. A0467617, filed September 26, 2005. The
Commission granted the application and updated the ownership
information on December 30, 2005.
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."
9Section 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).
1047 C.F.R. § 17.21(a). See Max Media of Montana, LLC, 18 FCC
Rcd 21375 (2003).
1147 C.F.R. § 17.23.
12Per FAA Circular Number 70/7460-1J, Chapters 3, 4, 5, 13.
13Under Section 503(b)(6) of the Act, 47 U.S.C. §503(b)(6), we
may only propose forfeitures to non-licensees for apparent
violations that occurred within one year of the date of this NAL.
However, Section 503(b) does not bar us from assessing whether
CRC's conduct prior to that time period apparently violated the
Act in determining the appropriate forfeiture amount for those
violations that occurred within the one-year statute of
limitations. Inphonic, Inc., 2005 WL 1750418 (FCC 05-145,
released July 25, 2005) at ¶ 24.
1447 C.F.R. § 17.47(a)(1).
1547 C.F.R. § 17.47(a)(2).
1647 C.F.R. § 17.48.
1747 C.F.R. § 17.49.
1847 C.F.R. § 17.57.
19See Application No. A0467617, filed September 26, 2005. The
Commission granted the application and updated the ownership
information on December 30, 2005.
20AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76
(2002).
2112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
2247 U.S.C. § 503(b)(2)(D).
2347 U.S.C. §§ 303(q), 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80,
17.23, 17.47, 17.48, 17.49, 17.57.
24See 47 C.F.R. § 1.1914.