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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Sprint Telephony PCS, L.P. File Numbers: EB-07-SD-096
)
Antenna Structure Registrant NAL/Acct. No.: 200732940007
)
ASR No. 1245560 FRN: 0002963965
)
Banning, California
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 7, 2007
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Sprint Telephony PCS, L.P. ("Sprint"), registrant of antenna
structure #1245560 in Banning, California, 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 the
antenna structure. We conclude, pursuant to Section 503(b) of the Act,
that Sprint is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1245660 is an antenna tower of 24.0 meters (65
feet) in height above ground and is located approximately 283 meters
(928 feet) from the Banning Municipal Airport in Banning, California.
The Federal Aviation Administration ("FAA") determined that the
antenna structure is located within the glide slope of the Banning
Municipal Airport. Therefore, as stated on the FAA Notice issued for
antenna structure #1245660, which is incorporated in the antenna
structure registration ("ASR") for antenna structure #1245660, this
antenna structure is required to have "Obstruction Marking and
Lighting" in accordance with the applicable chapters of the FAA's
Advisory Circular Number 70/7460-1K. Specifically, the structure is
required to have obstruction lighting consisting of two or more steady
burning lights installed on top of the structure in a manner to ensure
an unobstructed view of one or more lights by a pilot.
3. On March 30, 2007, an agent from the Enforcement Bureau's San Diego
Office observed that antenna structure #1245660 did not have the
required obstruction lights. In fact, the structure was constructed to
resemble a pine tree.
4. On May 17, 2007, the San Diego Office issued a Letter of Inquiry
("LOI") to Sprint PCS asking, among other things, when antenna
structure #1245560 was constructed; why the antenna structure did not
comply with the lighting requirements on the structure's ASR; whether
Sprint was aware of the lighting requirements on the antenna
structure's ASR; and whether Sprint had received a waiver of the
lighting requirements for the structure.
5. On July 18, 2007, Sprint responded to the LOI stating the antenna
structure construction was completed on February 1, 2005. Sprint
further stated that "there was an erroneous determination made by a
subcontractor that the FAA marking was not required." Sprint also
stated that it was not aware of the lighting requirements for antenna
structure #1245560 until Sprint received the LOI from the San Diego
Office and that they did not have a waiver of the lighting
requirement. Sprint also assured the San Diego Office that since
receiving the LOI, Sprint had installed the required lighting on
antenna structure #1245560.
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 17.23 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 #1245660 requires that the
structure have obstruction lighting consisting of two or more steady
burning lights installed on top of the structure in a manner to ensure
an unobstructed view of one or more lights by a pilot.
8. On March 30, 2007, a San Diego agent observed antenna structure
#1245660 and saw no lights on the structure. In their July 18, 2007,
reply to the LOI, Sprint acknowledges that no lights had been
installed on antenna structure #1245660 since its construction in
February 2005. Consequently, the violation has occurred on more than
one day and is, therefore, repeated. Based on the evidence before us,
we find that Sprint apparently repeatedly violated Section 303(q) of
the Act, and Section 17.23 of the Rules, by failing to comply with the
lighting requirements specified for antenna structure #1245660.
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 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)(E) 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
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, Entravision Communications 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.
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, Sprint Telephony PCS,
L.P, 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, Western Region, San Diego Office, 4542
Ruffner St., Suite 370, San Diego, California 92111 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, Room 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 Sprint Telephony PCS, L.P.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr.
District Director
San Diego 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 70/7460-1K, Chapters 4, 5 and 12.
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 70/7460-1K, Chapters 4, 5 and 12.
12 FCC Rcd 17087(1997), Recon. Denied 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 303(q), 503(b), 47 C.F.R. S:S: 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