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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
New Cingular Wireless Services, Inc. ) File Number: EB-06-SF-265
Antenna Structure Registrant ) NAL/Acct. No.: 200732960003
ASR # 1013252 ) FRN: 0004122032
Tulare, California )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 28, 2007
By the District Director, San Francisco Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that New Cingular Wireless Services, Inc. ("Cingular"), registered
owner of antenna structure # 1013252, in Tulare, California,
apparently repeatedly violated Section 303(q) of the Communications
Act of 1934, as amended, ("Act"), and Sections 17.23 and 17.50 of the
Commission's Rules ("Rules") by failing to comply with prescribed
marking. We conclude, pursuant to Section 503(b) of the Act, that
Cingular is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure # 1013252 is located at 2873 West Inyo Avenue,
Tulare, California. The structure is 88.7 meters in height above
ground level and, according to antenna structure # 1013252's
registration, the structure is required to have "Obstruction Marking
and Lighting" in accordance with chapters 3, 4, 5 and 12 of the
Federal Aviation Administration ("FAA") Advisory Circular Number
70/7460-1K. Specifically, the structure is required to be painted and
have obstruction lighting consisting of at least one flashing red
beacon on top and two or more steady-burning red sidelights on
opposite sides at the midpoint. Chapter 3 of the FAA Circular requires
the structure to be painted with alternate bands of aviation orange
and white paint; that the bands are equal in width, and approximately
one-seventh the height of the structure.
3. On August 29, 2006, an agent from the Enforcement Bureau's San
Francisco Office conducted an inspection of Cingular's antenna
structure # 1013252. The agent observed that the nighttime tower
lights, consisting of one flashing red beacon on top of the structure
and two steady burning red side lights, were functioning properly but
that the tower was painted gray and was not painted with alternating
bands of aviation orange and white paint.
4. On August 30, 2006 the agent returned to the site and inspected
antenna structure # 1013252 observing that the tower was gray and was
not painted with alternating bands of aviation orange and white paint.
The agent observed that the antenna structure appeared to have never
been painted with aviation orange and white paint. The agent also
observed no daytime white lights mounted or functioning on the
structure. The agent called the posted emergency number for the
structure and spoke with the tower monitoring service. The agent asked
the monitoring service to contact the FAA Flight Service Station to
report a hazard, because the structure was neither painted nor bore
any functioning daytime white lights.
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 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.
6. 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. 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." 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 determination of "no hazard"
issued to the structure owner. The FAA determination of "no hazard"
for antenna structure # 1013252 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.
Section 17.50 of the Commission's Rules states that antenna structures
requiring painting be painted as often as necessary to maintain good
visibility.
7. The specification of Chapter 3 of FAA Advisory Circular Number
70/7460-1K on the antenna structure registration for antenna structure
# 1013252 requires that the antenna 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 in order to make the structure "more conspicuous to pilots
during daylight hours." Chapter 3 allows for alternatives to the
prescribed painting or marking, in the form of high or medium
intensity white lighting systems, provided the proposed alternative
has received FAA review and concurrence. Once the FAA has approved of
the proposed change, the antenna structure registrant must seek
approval from the Commission before implementing the change. There is
no evidence that Cingular received either FAA or Commission approval
to alter the painting and lighting on antenna structure # 1013252. On
August 29 and 30, 2006, a San Francisco agent inspected antenna
structure # 1013252 and observed that the structure was painted gray.
During the August 30, 2006, inspection, the agent also observed that
there was no daytime lighting mounted or functioning on the structure.
The agent also observed that the structure appeared to have never been
painted with the required aviation orange and white paint. Cingular's
failure to paint antenna structure # 1013252 occurred on more than one
day, therefore, its violation is repeated. Based on the evidence
before us, we find that Cingular apparently repeatedly violated
Section 303(q) of the Act, and Sections 17.23 and 17.50 of the Rules,
by failing to comply with painting and lighting requirements specified
for antenna structure # 1013252, and for failing to ensure that the
structure 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. 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 to the instant case, we conclude that Cingular
is apparently liable for a ten thousand dollar ($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, New Cingular Wireless
Services, 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 Sections 17.23 and 17.50
of the Rules.
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, New Cingular Wireless
Services, 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, San Francisco Office,
5653 Stoneridge Drive, Suite 105, Pleasanton, California, 94588-8543
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.
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 New Cingular Wireless Services, Inc.,
at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. Van Stavern
District Director
San Francisco Office
Western Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 C.F.R. SS 17.23, 17.50.
47 U.S.C. S 503(b).
See FAA Advisory Circular Number 70/7460-1K, Chapters 3, 4, 5 and 12. At
the time of the inspection, the antenna structure registration ("ASR") for
antenna structure #1013252 required the structure to have "Obstruction
Marking and Lighting" in accordance with chapters 3, 4, 5 and 13 of the
FAA Advisory Circular Number 70/7460-1J, which also specified that the
structure be painted and have obstruction lighting consisting of at least
one flashing red beacon on top and two or more steady-burning red
sidelights on opposite sides at the midpoint. Chapter 12 of FAA Advisory
Circular Number 70/7460-1K and Chapter 13 of FAA Advisory Circular Number
70/7460-1J are both entitled "Marking and Lighting Equipment and
Information."
Chapter 3 makes this requirement specific to structures 700 feet or less
in height. According to its antenna structure registration, antenna
structure # 1013252 is 88.7 meters in height, or, approximately 290 feet.
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."
Section 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. S 303(q).
47 C.F.R. S 17.1(a)
47 C.F.R. S 17.23.
FAA Advisory Circular Number 70/7460-1K, Chapters 3, 4, 5, 12.
47 C.F.R. S 17.50.
FAA Advisory Circular Number 70/7460-1K, Chapter 3, Paragraph 30.
FAA Advisory Circular Number 70/7460-1H, Chapter 3, Paragraph 36.
The Note to Chapter 3 reads: "Sponsors must ensure that alternatives to
marking are coordinated with the FCC for structures under its jurisdiction
prior to making the change." FAA Advisory Circular Number 70/7460-1K,
Chapter 3.
Even if Cingular had received such approval, it would still be in
violation of Section 17.23, for failing to conform to the mandatory FAA
painting and lighting recommendations set forth on its FAA Notice, and
Section 17.51, 47 C.F.R. S 17.51, for failing to continuously exhibit
obstruction lighting, because the agent observed no daytime white lighting
system mounted or functioning on the antenna structure.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S
1.80.
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, 0.314, 1.80,
17.23, 17.50.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission