Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number EB-07-TP-091
Telecom Network, Inc.
) NAL/Acct. No. 200832700002
Birmingham, AL
) FRN 0001752161
ASR 1029164
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 5, 2007
By the District Director, Tampa Field Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Telecom Network, Inc. ("Telecom"), owner of antenna structure #
1029164, in Ebro, FL apparently willfully and repeatedly violated
Sections 17.50 and 17.51(a) of the Commission's Rules ("Rules") by
failing to paint its antenna structure to maintain good visibility and
failing to exhibit red obstruction lights from sunset to sunrise. We
also find that Telecom apparently repeatedly violated Section 17.4(g)
of the Rules by failing to post the Antenna Structure Registration
("ASR") number at the base of its structure. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Telecom is apparently liable for a forfeiture in the amount of
twelve thousand dollars ($12,000).
II. BACKGROUND
2. On May 15, 2007, in response to a complaint of a dark tower, agents
from the Commission's Tampa Office of the Enforcement Bureau ("Tampa
Office") observed that all of the required obstruction lighting on
antenna structure #1029164, located in Ebro, FL, was unlit after local
sunset time. The agents also observed that the paint throughout the
structure was extremely faded and washed away in many areas of the
structure. Finally, the agents observed that the ASR number, 1029164,
was not posted at the site.
3. On May 16, 2007, the agents returned to the antenna structure and
noted that the tower's paint remained unchanged. The agents also
observed that the ASR number was still not posted at the site. The
agents again observed that the tower remained completely unlit past
local sunset time.
4. On May 30, 2007, Telecom admitted that the antenna structure did not
have an automatic alarm monitoring system. According to Telecom, daily
visual observations were supposed to be made of the structure, and
lighting problems listed in its log. Telecom admitted that it was
unaware of the outage prior to being informed by the agents, and the
last problem listed in the log was from 2004. Telecom did not have any
documentation of when the tower had last been painted.
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) of the Act 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 17.4(g) of the Rules requires that the ASR number must be
displayed in a conspicuous place so that it is readily visible near
the base of the antenna structure. Materials used to display the ASR
number must be weather-resistant and of sufficient size to be easily
seen at the base of the antenna structure. On May 15 and 16, 2007,
agents from the Tampa Office observed that no ASR number was posted by
antenna structure # 1029164. According the ASR database, Telecom is
the registered owner of this structure.
7. 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 May 15 and 16, 2007, an inspection of the
antenna structure revealed that the paint on the structure was
extremely faded and had washed away completely in many areas, 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. Telecom had no records of when the tower was last
painted.
8. Section 17.51(a) of the Rules requires that all red obstruction
lighting shall be exhibited from sunset to sunrise unless otherwise
specified. On May 15 and 16, 2007, agents from the Tampa Office
observed that all required obstruction lighting on antenna structure
#1029164 was extinguished after local sunset time. Telecom stated that
it was supposed to make daily observations of the tower lights,
however, it was unaware of the outage prior to being so informed by
the agents. Telecom did not notify the FAA of the outage prior to May
30, 2007.
9. Based on the evidence before us, we find that Telecom apparently
willfully and repeatedly violated Sections 17.50 and 17.51(a) of the
Rules by failing to maintain its antenna structure's paint in good
condition, and failing to exhibit all of the required obstruction red
lights. We also find that Telecom apparently repeatedly violated
Section 17.4(g) of the Rules by failing to post the ASR number at its
antenna structure. 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. Section 1.80
of the Rules does not establish a base forfeiture amount for failure
to post the ASR number. The Commission has determined, however, that
an appropriate base forfeiture amount for failure to post the ASR
number is $2,000 per violation.7 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.8 Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Telecom is apparently liable for a twelve thousand dollar
($12,000) 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,
0.314 and 1.80 of the Commission's Rules, Telecom Network, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twelve thousand dollars ($12,000) for violations of Sections
17.4(g), 17.50, and 17.51(a) of the Rules.9
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, Telecom Network, Inc.
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, South Central Region, Tampa Office,
2203 N. Lois Ave., Suite 1215, Tampa, FL , 33607 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, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.10
___________________________
8 47 U.S.C. S: 503(b)(2)(E).
9 47 U.S.C. S: 503(b), 47 C.F.R. S: S: 0.111, 0.311, 0.314, 1.80, 17.4(g),
17.50, 17.51(a).
10 See 47 C.F.R. S: 1.1914.
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 Telecom Network, Inc. at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 17.4(g), 17.50, 17.51(a).
47 U.S.C. S: 503(b).
After receiving the complaint that the antenna structure had been unlit
for 45 days, an agent notified the Federal Aviation Administration
("FAA"), and they issued a Notice to Airmen ("NOTAM") on May 1, 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."
See 47 C.F.R. S: 17.48(a).
47 C.F.R. S: 1.80.
7 American Tower Corporation, Notice of Apparent Liability, 16 FCC Rcd
1282 (2001).
(...continued from previous page)
(continued....)
Federal Communications Commission
2
Federal Communications Commission