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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
T-Mobile West Corporation File Number: EB-06-PO-065
)
Antenna Structure Registrant NAL/Acct. No. 200632920001
)
ASR No. 1041076 FRN 0002837276
)
Vancouver, Washington
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 20, 2006
By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that T-Mobile West Corporation ("T-Mobile"), registered owner of
antenna structure #1041076 in Vancouver, Washington, apparently
repeatedly violated Section 303(q) of the Communications Act of 1934,
as amended ("Act"), and Section 17.23 of the Commission's Rules
("Rules") by failing to comply with the lighting requirements
specified for antenna structure #1041076. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that T-Mobile is apparently liable for a forfeiture in the amount of
ten thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1041076 is located approximately 1.9 miles east
from the Evergreen Airport in Vancouver, Washington. The structure is
48.8 meters in height above ground level and, according to antenna
structure #1041076's registration, the structure is required to have
"Obstruction Marking and Lighting" in accordance with the applicable
chapters of the Federal Aviation Administration ("FAA") Advisory
Circular Number 70/7460-1J. Specifically, the structure is required to
have dual lighting consisting of red lights for nighttime use and
medium intensity flashing white lights for daytime and twilight use.
3. On June 2, 2006, an agent from the Enforcement Bureau's Portland
Resident Agent Office observed that the dual lighting system of
antenna structure #1041076 was not functioning. Specifically, the
agent observed that the top red lights were not illuminated during
nighttime and the white lights were not functioning during daytime and
twilight. The agent contacted the FAA's Seattle Flight Service Station
("FSS") and was told that there was no record of any Notice to Airmen
("NOTAM") issued concerning the light outage on antenna structure
#1041076. The agent requested the Seattle FSS to conduct a search of
current and prior NOTAM records associated with antenna structure
#1041076.
4. On June 5, 2006, the Portland agent received confirmation from a
supervisor of the Seattle FSS indicating that there was no NOTAM
record found within the past 15 days from June 5, 2006. Later on June
5, 2006, the agent re-inspected antenna structure #1041076 and
observed that the dual lighting system was still not functioning.
5. On June 6, 2006, the Portland agent contacted counsel representing
T-Mobile to describe the light outage and to inquire about the
required NOTAM. The agent received an e-mail response from T-Mobile's
counsel indicating that T-Mobile was investigating the matter. Later
on June 6, 2006, the agent received an e-mail confirmation from
T-Mobile that they had installed temporary lights on structure
#1041076 and that a NOTAM had been opened.
6. On June 7, 2006, the agent contacted the Seattle FSS, and verified
that the NOTAM had been opened. On June 8, 2006, the agent observed
the temporary lights functioning on antenna structure #1041076.
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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
8. 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. 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. The FAA Notice for antenna structure #1041076 requires that the
structure have dual lighting consisting of red lights for nighttime
and medium intensity flashing white lights for daytime and twilight
use.
9. On June 2, 2006, and June 5, 2006, a Portland Agent observed that
antenna structure #1041076's dual lighting system, including the red
lights for nighttime use and the flashing white lights for daytime and
twilight use, was not functioning. The violation occurred on more than
one day, therefore, it was repeated. Based on the evidence before us,
we find that T-Mobile West Corporation, apparently repeatedly violated
Section 303(q) of the Act, and Section 17.23 of the Rules, by failing
to comply with lighting requirements specified for antenna structure
#1041076.
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 failing to comply with the prescribed
lighting and/or marking for an antenna structure is $10,000. 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. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, a $10,000
forfeiture is warranted.
IV. ORDERING CLAUSE
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 and
1.80 of the Commission's Rules, T-Mobile West Corporation 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 17.23 of the Rules.
12. 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, T-Mobile West Corporation
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Portland Resident
Agent Office, P.O. Box 61469, Vancouver, Washington 98666-1469 and
must include the NAL/Acct. No. referenced in the caption.
15. 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.
16. 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
12^th Street, S.W., Washington, D.C. 20554.
17. 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 T-Mobile West Corporation, 12920 SE
38^th Street, Bellevue, Washington 98006.
FEDERAL COMMUNICATIONS COMMISSION
Binh Nguyen
Resident Agent
Portland Resident Agent Office
Western Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 C.F.R. S 17.23.
47 U.S.C. S 503(b).
See FAA Advisory Circular Number 70/7460-1J, Chapters 4, 8, and 13.
Section 17.48 of the Rules requires antenna structure owners to
immediately notify the FAA of 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. 47 C.F.R. S 17.48.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
47 U.S.C. S 303(q).
47 C.F.R. S 17.23.
See FAA Advisory Circular Number 70/7460-1J, Chapters 4, 8, and 13.
12 FCC Rcd 17087(1997), Recon. Denied 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. SS 303(q), 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80, 17.23.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission