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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number EB-07-SJ-016
Puerto Rico Telephone Company Inc.
) NAL/Acct. No. 200732680006
San Juan, PR
) FRN 0001731470
ASR 1010664
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 23, 2007
By the Resident Agent, San Juan Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Puerto Rico Telephone Company Inc. ("PRTC"), owner of antenna
structure # 1010664, in Yabucoa, Puerto Rico, apparently willfully and
repeatedly violated Sections 17.47(a)(1), 17.50, and 17.51(a) of the
Commission's Rules ("Rules") by failing to monitor the antenna
structure's lights, failing to paint its antenna structure to maintain
good visibility, and failing to exhibit red obstruction lights from
sunset to sunrise. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that PRTC is
apparently liable for a forfeiture in the amount of twelve thousand
dollars ($12,000).
II. BACKGROUND
2. On March 6, 2007, in response to a complaint of a dark tower, agents
from the Commission's San Juan office of the Enforcement Bureau ("San
Juan Office") observed that the tower located in Yabucoa was not lit.
On March 8, 2007, the agents returned to the antenna structure and
noted the tower's paint was completely washed away on the top four
bands. The agents also observed that the tower remained unlit past
7:00 PM. In response to a Letter of Inquiry, PRTC admitted that
between March 8, 2006 and March 8, 2007, the antenna structure did not
have an automatic alarm monitoring system. PRTC also admitted that it
was unaware of the outage prior to being so informed by the agents and
that it did not conduct daily visual observations of the structure's
lights between March 8, 2006 and March 8, 2007. Finally, PRTC admitted
that it had no documentation regarding the tower's paint condition
during this period.
III. DISCUSSION
3. 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.
4. Section 17.47(a)(1) of the Rules requires that the owner of any
antenna structure which is registered with the Commission and has been
assigned lighting specifications make an observation of the antenna
structure's lights at least once every 24 hours. Alternatively, owners
may install an automatic light monitoring system. PRTC admitted that
between March 8, 2006 and March 8, 2007 it did not have an automatic
light monitoring system in place and it did not conduct daily
observations of the structure. PRTC also admitted that it was unaware
of the light outage on March 6 and 8, 2007 until being so informed by
the agents.
5. Section 17.50 of the Rules requires that antenna structures requiring
painting shall be cleaned or repainted as often as necessary to
maintain good visibility. On March 8, 2007, an inspection of the
antenna structure revealed that the paint on the top four bands of the
tower had washed away completely, leaving the metal exposed and
reducing the tower's visibility. The paint's condition was so
deteriorated that it had to have occurred over more than one day. PRTC
admitted that it had no documents regarding the paint's condition
between March 8, 2006 and March 8, 2007. PRTC stated that it has hired
a contractor to repaint the structure.
6. Section 17.51(a) of the Rules requires that all red obstruction
lighting shall be exhibited from sunset to sunrise unless otherwise
specified. On March 6 and 8, 2007, agents from the San Juan Office
observed that all required obstruction lighting on antenna structure
#1010664 was extinguished. PRTC did not call in a NOTAM regarding the
outage.
7. Based on the evidence before us, we find that PRTC apparently
willfully and repeatedly violated Sections 17.47(a)(1), 17.50, and
17.51(a) of the Rules by failing to monitor the antenna structure's
lights, failing to repaint the antenna structure, and failing to
exhibit any of the required obstruction red lights.
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 lighting
and marking is $10,000 and the base forfeiture amount for failing to
make required measurements or conduct required monitoring is $2,000.
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 to the instant
case, we conclude that PRTC is apparently liable for a ($12,000)
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, Puerto Rico Telephone
Company Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twelve thousand dollars ($12,000) for
violations of Sections 17.47(a)(1), 17.50, and 17.51(a) 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, Puerto Rico Telephone
Company 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, South Central Region, San Juan Office,
Room 762, Federal Building, Hato Rey, PR 00918 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, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.^8
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 Puerto Rico Telephone Company Inc. at
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent,
San Juan Office
South Central Region
Enforcement Bureau
47 C.F.R. SS 17.47(a)(1), 17.50, 17.51(a).
47 U.S.C. S 503(b).
After receiving the complaint that the antenna structure had been unlit
for 3 months, an agent called the Federal Aviation Administration, which
issued a Notice to Airmen ("NOTAM") on February 28, 2007.
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."
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)(E).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 17.47(a)(1),
17.50, 17.51(a).
^8 See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
3
Federal Communications Commission