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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-06-NY-098
NBTY, Inc. )
NAL/Acct. No.
Owner of Antenna Structure ) 200732380009
ASR # 1064367 ) FRN 0004 1340 11
Bohemia, New York )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 9, 2007
By the District Director, New York Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that NBTY, Inc. ("NBTY"), owner of antenna structure 1064367 located
in Bohemia, New York, apparently willfully and repeatedly violated
Section 303(q) of the Communications Act of 1934, as amended, ("Act"),
and Sections 17.21(a) and 17.23 of the Commission's Rules ("Rules")
by failing to paint its tower aviation orange and white as required by
the Antenna Structure Registration (ASR) and specified on the tower's
FAA determination of "no hazard." We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
NBTY is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000). In addition, we admonish NBTY for failing
to post the ASR Number at the base of the tower as required under
Section 17.4(g) of the Rules.
II. BACKGROUND
2. On May 16, 2006, an agent in the Commission's New York Office
conducted an inspection of antenna structure 1064367 and observed that
the steel gray tower was unpainted, and that the registration number
was not posted. The ASR for this tower requires that the tower be
painted and lighted in accordance with FAA Chapters 3, 4, 5 and 13 in
FAA Circular Number 70/7460-1J. Specifically, Chapter 3 provides that
antenna structures shall display alternate bands of aviation orange
and white paint.
3. On May 16, 2006, the agent met with NBTY's construction manager and
informed him of the painting and posting violations. The agent advised
him that the tower must be painted as soon as possible to conform to
the required specifications, and that the ASR Number must be posted.
The construction manager searched NBTY's files and showed the agent a
copy of the FAA's Determination of "No Hazard," Aeronautical Study No.
97-AEA-2480-OE, and a copy of the FCC ASR. Both documents clearly
indicate that the structure must be painted and marked in accordance
with FAA Chapters 3, 4, 5 and 13 in FAA Circular Number 70/7460-1J.
NBTY's records also contained a Supplemental Notice of Actual
Construction or Alteration, Form 7460-2, completed by NBTY and faxed
to the FAA on November 3, 1998. The form, signed by NBTY's Vice
President, indicates that construction of the tower was completed, and
is marked and lighted. NBTY's records also contained FCC Form 854,
Application for Antenna Structure Registration, indicating that the
150-foot tower was constructed on August 1, 1998, and that the tower
conforms to FAA Study Number 97-AEA-2480-OE, a copy of which was
submitted with the application. The application was signed by NBTY's
Vice President and dated May 6, 1999.
4. On May 17, 2006, the agent again observed that antenna structure
1064367 was not painted and that the registration number was not
posted. The agent then met with the construction manager and also with
NBTY's Vice President of Construction, and explained to them that the
tower did not conform to the FCC and FAA painting requirements and was
therefore in violation of FCC Rules. The agent also informed the Vice
President of the violation for not posting the ASR Number. In response
to questions from the agent, the Vice President stated that the tower
had never been painted and that he believed that the top-mounted,
steady-burning red obstruction lights were all that were required. The
agent reviewed with the Vice President all the documentation the
construction manager provided the previous day, and advised them that
it may be appropriate to notify the FAA since the tower was not
marked and posed a potential hazard to air navigation. The Vice
President stated that he would make preparations to paint the tower,
and post the ASR Number as soon as a sign was made.
5. On June 14, 2006, Commission agents inspected antenna structure
1064367 and observed that the structure was not painted as required by
the tower's ASR. The registration number was posted on the gate at the
base of the tower.
III. DISCUSSION
6. 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.
7. 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 17.21(a) of the Commission's Rules states
that "[a]ntenna structures shall be painted and lighted when they
exceed 60.96 meters (200 feet) in height above ground or they require
special aeronautical study." Section 17.23 states that "each new or
altered antenna structure to be registered on or after January 1,
1996, must conform to the FAA's painting and lighting recommendations
set forth on the structure's FAA determination of `no hazard,' as
referenced in the...FAA Advisory Circulars..." As described above, the
registration for antenna structure 1064367 specifically requires that
the tower be painted in accordance with Chapter 3 in FAA Circular
Number 70/7460-1J, as determined by FAA Aeronautical Study Number
97-AEA-2480-OE.
8. On May 16 and 17, and June 14, 2006, agents inspected antenna
structure 1064367 and observed that the structure was unpainted. On
May 16 and 17, 2006 an agent interviewed NBTY representatives who
stated that the structure had never been painted. NBTY's files
contained copies of the FCC ASR and the FAA determination of "no
hazard," both of which indicate that the tower is required to be
painted. The file also contained NBTY's Notice of Actual Construction
to the FAA and the FCC application for Antenna Structure Registration.
In these documents, which were signed by NBTY's Vice President of
Construction in 1999, NBTY reported that construction of the tower was
complete and that the tower was painted. Accordingly, based on the
evidence before us, we find that NBTY apparently willfully and
repeatedly violated Section 303(q) of the Act and Sections 17.21(a)
and 17.23 of the Rules by failing to paint its antenna structure.
9. Section 17.4(g) of the Commission's Rules provides that the Antenna
Structure Registration Number must be displayed in a conspicuous place
so that it is readily visible near the base of the tower. At the time
of inspections on May 16 and 17, 2006, the agent observed that there
was no Antenna Structure Registration number at the base of the tower.
We admonish NBTY for failing to post the Antenna Structure
Registration Number at the base of its tower in violation of Section
17.4(g).
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 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 NBTY is
apparently liable for a ($10,000) forfeiture.
11. We are concerned about the extended period of time during which NBTY's
tower has remained unpainted. NBTY is directed to submit within ten
(10) days a report regarding the status of the tower. If the tower
still remains unpainted, NBTY is directed to report its exact time
frame for painting the tower.
IV. ORDERING CLAUSES
12. 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, NBTY, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand Dollars ($10,000) for violation of Section 303(q) of the
Act, and Sections 17.21(a) and 17.23 of the Rules.
13. IT IS FURTHER ORDERED that NBTY, Inc. is hereby ADMONISHED for its
violation of Section 17.4(g) of the Commission's Rules.
14. IT IS FURTHER ORDERED that NBTY, Inc. SHALL SUBMIT within ten (10)
days of the release of this Notice of Apparent Liability for
Forfeiture a report regarding the status of the tower as set forth in
paragraph 12 supra.
15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty (30) days of the release date of this
Notice of Apparent Liability for Forfeiture, NBTY, Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
16. 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.
17. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, New York, NY 10014, and must include the NAL/Acct. No.
referenced in the caption.
18. 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.
19. 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, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
20. 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 NBTY, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 C.F.R. SS 17.21(a), 17.23.
47 U.S.C. S 503(b).
47 C.F.R. S 17.4(g).
Although the Rules do not specifically state that tower owners are
required to notify the FAA regarding paint problems, the agent made this
recommendation due to the unpainted tower's potential hazard to air
traffic serving Long Island McArthur Airport, located approximately one
nautical mile to the north. Additionally, FAA Advisory Circular, AC
70/7460-1K, Chapter 1, requires that "[t]he [structure] owner is
responsible for adhering to approved marking and/or lighting limitations,
and/or recommendations given, and should notify the FAA and FCC (for those
structures regulated by the FCC) prior to removal of marking and/or
lighting."
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 17.21(a). Although the tower is under 200 feet, it required a
special aeronautical study due to its proximity to Long Island McArthur
Airport, located approximately one nautical mile to the north.
47 C.F.R. S 17.23.
47 U.S.C. S 17.4(g).
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. SS 303(q), 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80,
17.21(a), 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