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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Union Pacific Railroad Company ) File Number EB-08-HU-0024
Owner of Antenna Structure ) NAL/Acct. No. 200832540002
ASR # 1065191 ) FRN: 0001539048
Giddings, Texas )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 14, 2008
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Union Pacific Railroad Company ("Union Pacific"), owner of
antenna structure #1065191 in Giddings, Texas, apparently repeatedly
violated Section 17.21(a) of the Commission's Rules ("Rules") by
failing to paint and light its antenna structure. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Union Pacific is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On February 20, 2008, a resident agent from the Commission's Houston
Office of the Enforcement Bureau ("Houston Office") inspected antenna
structure #1065191 located in Giddings, Texas. During the inspection,
the agent observed that the structure was not painted with alternating
bands of aviation orange and white paint. Additionally, after sunset,
the agent observed that there were no red obstruction lights operating
on the structure.
3. On February 21, 2008, a resident agent from the Houston Office again
inspected antenna structure #1065191. During this inspection, the
agent observed the condition of the antenna structure to be the same
as observed the previous day; there was no paint on the structure and
no red obstruction lights were operating after sunset.
4. The Commission's Antenna Structure Registration database shows that
Union Pacific registered this structure with the Commission on June 2,
1999. The structure was assigned the number 1065191. The Federal
Aviation Administration ("FAA") aeronautical study listed when this
structure was registered is number 1999-ASW-1282-OE and required the
structure to have paint and red lights in order not to be a hazard to
air navigation.
5. On March 5, 2008, the Houston Office issued a Letter of Inquiry to
Union Pacific regarding the absence of paint and lights for antenna
structure #1065191. On March 24, 2008, the Houston Office received a
response to the Letter of Inquiry from an Associate Vice President for
Telecom of Union Pacific, which stated that Union Pacific had not
painted or lit the structure since it acquired the structure on
September 11, 1996 and that the lack of paint and lights was due to an
oversight.
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 "repeated" means the commission or omission of such
act more than once or for more than one day.
7. Section 17.21(a) of the Rules requires antenna structures to be
painted and lighted when they exceed 60.96 meters (200 feet) in height
or require a special aeronautical study. A special aeronautical study
conducted by the FAA in June 1999 determined that structure #1065191,
which is located near an airport, should be painted and have red
lights installed so that it would not be a hazard to air navigation.
On February 20 and 21, 2008, an agent from the Houston Office observed
that antenna structure #1065191 was neither painted nor lit with red
obstruction lights after sunset. Union Pacific admitted that it had
not painted or installed red lights on the structure since it acquired
the structure on September 11, 1996.
8. Based on the evidence before us, we find that Union Pacific apparently
repeatedly violated Section 17.21(a) of the Rules by failing to paint
and light antenna structure #1065191.
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 prescribed lighting
and/or marking (painting) 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 of
the Rules, and the statutory factors to the instant case, we conclude
that Union Pacific is apparently liable for a ($10,000) 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, Union Pacific Railroad
Company is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of ten thousand dollars ($10,000) for violation of
Section 17.21(a) 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, Union Pacific Railroad
Company 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 credit card through the
Commission's Revenue and Receivables Operations Group at (202)
418-1995, or by check or similar instrument, payable to the order of
the Federal Communications Commission. The payment must include the
Account Number and FRN Number referenced above. Payment by check or
money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment[s] by wire transfer may
be made to ABA Number 021030004, receiving bank Federal Reserve Bank
of New York, and account number 27000001. Requests for full payment
under an installment plan should be sent to: Chief Financial Officer
-- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Houston Office,
9597 Jones Road, #362, Houston, Texas, 77065 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. 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 Union Pacific Railroad Company at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Stephen P. Lee
Resident Agent,
Houston Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 17.21(a).
47 U.S.C. S: 503(b).
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 C.F.R. S: 17.21(a).
See 47 C.F.R. S: 17.7(b)(1). Notification to the FAA was required, because
antenna structure #1065191 is located approximately 13,200 feet from the
runway of the Giddings - Lee County airport, which has a runway of 4,000
feet.
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)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 17.21(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission