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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Pinnacle Towers LLC File Number: EB-06-NY-014
)
Registrant of Antenna Structure NAL/Acct. No. 200732380004
)
Hicksville, New York FRN 0006 1561 11
)
ASR #1017802
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 21, 2006
By the District Director, New York Office, Northeast Region, Enforcement
Bureau:
1. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Pinnacle Towers LLC ("Pinnacle"), owner of antenna structure
number 1017802, in Hicksville, New York, apparently willfully and
repeatedly violated Section 17.57 of the Commission's Rules ("Rules")
by failing to immediately notify the Commission of a change in
ownership of an antenna structure. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Pinnacle is apparently liable for a forfeiture in the amount of three
thousand dollars ($3,000).
II. BACKGROUND
2. On January 14, 2006, the New York Office received a fax from the New
York Automated Flight Service Station stating that a Notice to Airman
("NOTAM ") had been issued three times for a light outage on antenna
structure number 1017802. According to the NOTAM, the lights had been
out since December 14, 2005.
3. On January 20, 2006, an agent in the Commission's New York Office
searched the Commission's Antenna Structure Registration ("ASR")
database, which showed that the registered owner of antenna structure
number 1017802 was Motorola, Inc. ("Motorola"). Motorola did not
respond to several messages left by the agent at the telephone number
listed for Motorola in the ASR database.
4. On January 26, 2006, the agent reviewed antenna structure inspection
records, which identified Pinnacle as the manager of antenna structure
number 1017802. The agent contacted Pinnacle and spoke with a Pinnacle
representative who confirmed that Pinnacle had submitted the outage
information to the FAA. The representative stated, however, that he
was unsure of the ownership of the antenna structure. The agent
advised the Pinnacle representative that FCC records showed Motorola
as the current owner of the antenna structure and that if Pinnacle was
in fact the owner of the antenna structure, Pinnacle would be in
violation of the Commission's rules for not immediately notifying the
Commission of a change in the structure's ownership.
5. On January 27, 2006, a Pinnacle representative called the agent to
report that the owner of the antenna structure is The Holmes Farm LLC,
("Holmes"). On February 1, 2006, the agent received a fax from
Pinnacle confirming that the antenna structure was owned by Holmes and
provided a contact name at Holmes. On that same day, the agent checked
the ASR database and found that the ownership information had been
updated on January 26, 2006, and now lists Pinnacle as the registered
owner of antenna structure 1017802.
6. On February 28, 2006, the New York Office sent a Letter of Inquiry to
Holmes to obtain additional information regarding the ownership of the
antenna structure. On March 20, 2006, the New York Office received a
response from Holmes stating that Holmes is the owner of the real
property on which the antenna structure is located, but it is not the
owner of the antenna structure. Holmes included with its response a
copy of a Memorandum of Lease and Consent, dated December 20, 1999, in
which Motorola assigned its lease for the antenna site to Pinnacle.
The Memorandum of Lease and Consent also referenced a "Purchase
Agreement," dated June 29, 1999, pursuant to which Motorola sold the
antenna structure to Pinnacle.
III. DISCUSSION
7. Section 503(b) of the Act provides that any person who willfully fails
to comply substantially with the terms and conditions of any license,
or willfully 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 one or for more than one
day.
8. Section 17.57 of the Rules requires the owner of an antenna structure
to immediately notify the Commission, using FCC Form 854, upon any
change in structure height or change in ownership information.
Although Pinnacle acquired the antenna structure in 1999 and reported
light outages on the antenna structure to the FAA, Pinnacle failed to
register the structure with the Commission until January 2006, which
it did only after being advised of the violation by a Commission
agent. Based on the evidence before us, we find that Pinnacle
willfully and repeatedly violated Section 17.57 of the Rules by
failing to immediately notify the Commission of a change in ownership
information for antenna structure number 1017802.
9. 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 file required forms or
information with the Commission is $3000. 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 and the
statutory factors, we conclude that Pinnacle owner of antenna
structure number 1017802 is apparently liable for $3,000 forfeiture.
IV. ORDERING CLAUSES
10. 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, Pinnacle is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of three thousand
dollars ($3,000) for violations of Section 17.57 of the Rules.
11. 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, Pinnacle, SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, Suite 1151, New York, NY 10014, within thirty (30) days
from the release date of this Notice of Apparent Liability for
Forfeiture and must include the NAL/Acct. No. referenced in the
caption.
14. 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.
15. 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, 1A625, 445 12th
Street, S.W., Washington,, D.C. 20554.
16. 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 Pinnacle at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 C.F.R. S 17.57.
47 U.S.C. S 503(b).
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 C.F.R. S 17.57.
We recognize that Pinnacle registered the antenna structure immediately
after being advised to do so by the agent. We note, however, that the
Commission consistently has held that corrective action taken to come into
compliance with the Rules is expected, and does not nullify or mitigate
any prior forfeitures or violations. See Seawest Yacht Brokers,
Forfeiture Order, 9 FCC Rcd 6099 (1994).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80, 17.57.
See 47 C.F.R. S 1.1914.
Federal Communications Commission
4
Federal Communications Commission