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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
BK Towers, LLC ) File Number: EB-08-KC-0272
Owner of Antenna Structure ) NAL/Acct. No.: 200832560002
Manter, Kansas ) FRN: 0007040009
ASR #1032514 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 30, 2008
By the District Director, Kansas City Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that BK Towers, LLC ("BK"), owner of antenna structure bearing
registration number 1032514, Manter, Kansas ("Tower"), apparently
willfully and repeatedly violated Section 17.47(a) of the
Commission's Rules ("Rules") by failing to make observations of the
antenna structure's lights at least once each 24 hours, either
visually or by observing an automatic indicator designed to register
any failure of such lights. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended ("Act"), that BK is
apparently liable for a forfeiture in the amount of two thousand
dollars ($2,000).
II. BACKGROUND
2. On September 10, 2008, in response to a complaint of a tower light
outage from the city manager of Manter, Kansas, an agent from the
Commission's Kansas City Office of the Enforcement Bureau ("Kansas
City Office") determined that the structure in question was antenna
structure number 1032514, which, according to the Antenna Structure
Registration database, is owned by BK. An agent from the Kansas City
Office contacted BK about the complaint and a representative from BK
stated that it was unaware of the outage. A BK employee was dispatched
to confirm the outage by visiting the Tower site and, upon
confirmation, BK filed a Notice to Airmen ("NOTAM") report with the
Federal Aviation Administration ("FAA") late in the afternoon on
September 10, 2008.
3. On September 11, 2008, an agent from the Kansas City Office
interviewed one of BK's owners, who stated that the automated
monitoring system had not been operational at the Tower for one to one
and a half years and that no person has been assigned or contracted to
monitor the Tower lighting visually. According to the owner, BK
relied on a Sheriff from Stanton County Kansas to inform it of light
outages on the Tower. The agent contacted the Sheriff, who stated that
he did not observe the Tower regularly and was unsure how long the
lights on the Tower had been out.
4. In a series of emails between September 16 and 23, 2008, BK provided
information regarding its light monitoring practices for the Tower. BK
stated that BK employees visually inspected the Tower on August 6,
2008, August 30 or 31, 2008, and September 10, 2008. BK was unable to
specify the precise date that its automatic alarm system was last
operational, but it stated that its "alarm monitoring system has not
been reliable and is being replaced." BK asserted that there have been
a total of only two light outages for the Tower during the past two
years and those occurred on June 6, 2008 and September 10, 2008. BK
stated that the June 6, 2008 outage was reported by the Stanton County
Sheriff.
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 17.47(a) of the Rules states that the owner of any antenna
structure which is registered with the Commission and has been
assigned lighting specifications ... shall make an observation of the
antenna structure's lights at least once each 24 hours either visually
or by observing an automatic properly maintained indicator designed to
register any failure of such lights, to insure that all such lights
are functioning properly as required; or alternatively, shall provide
and properly maintain an automatic alarm system designed to detect any
failure of such lights and to provide indication of such failure to
the owner. Although an automatic alarm system was installed at the
Tower, according to BK's owner, the system had not been operational
for at least a year prior to September 10, 2008. BK also admitted that
its system was not reliable and needed to be replaced. BK did not have
another automatic indicator to register the failure of the Tower
lights. During the year prior to September 10, 2008, BK admitted that
no employees or contractors visually inspected the Tower's lights on a
daily basis. In fact, at most, BK employees made visual observations
of the lighting status on only two days during the period between
August 1, 2008 and September 9, 2008. It is further noted that BK was
not informed of the Tower light outages on June 6 and September 10,
2008 by its employees. Based on the evidence before us, we find that
BK apparently willfully and repeatedly violated Section 17.47(a) of
the Rules by failing to observe visually the Tower lighting at least
once each 24 hours, at a minimum, between August 1 and September 9,
2008.
7. 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 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 of the Rules, and the statutory factors
to the instant case, we conclude that BK is apparently liable for a
$2,000 forfeiture.
IV. ORDERING CLAUSES
8. 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, BK Towers, LLC is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
two thousand dollars ($2,000) for violation of Section 17.47(a) of
the Rules.
9. 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, BK Towers, LLC SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. Payment of the forfeiture must be made by credit card, 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 by wire transfer may be made to ABA Number
021030004, receiving bank Federal Reserve Bank of New York, and
account number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). 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. 20554.8 If you have
questions, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. If payment is made, BK
will send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Kansas City
Office, 520 NE Colbern Rd, 2nd Floor, Lees Summit, MO 64086 and must
include the NAL/Acct. No. referenced in the caption.
12. 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.
13. 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 BK Towers, LLC at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director,
Kansas City Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 17.47(a).
47 U.S.C. S: 503(b).
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.
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, 17.47(a).
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission