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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
ERF Wireless, Inc. ) File No. EB-08-HU-0128
Owner of Antenna Structure ) NAL/Acct. No. 200932540001
Number 1052967 ) FRN 0017732520
Monaville, Texas )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 27, 2009
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 ERF Wireless, Inc. ("ERF Wireless"), owner of antenna structure
number 1052967, near Monaville, Texas, apparently willfully and
repeatedly violated Sections 17.51(b) and 17.57 of the Commission's
Rules ("Rules") by failing to continuously exhibit the medium
intensity lighting on its antenna structure and failing to update the
ownership information for its antenna structure. We conclude, pursuant
to Section 503(b) of the Communications Act of 1934, as amended
("Act"), that ERF Wireless is apparently liable for a forfeiture in
the amount of thirteen thousand dollars ($13,000).
II. BACKGROUND
2. On December 22, 2008, in response to a complaint of an unlit and
improperly registered antenna structure, an agent from the
Commission's Houston Office of the Enforcement Bureau ("Houston
Office") reviewed the Commission's Antenna Structure Registration
("ASR") database. The database listed Bishop Tower Company as the
owner of antenna structure number 1052967, near Monaville, Texas. The
complaint alleged that ERF Wireless acquired the antenna structure
over two years ago. The Commission's ASR database listed this
structure as requiring a medium intensity obstruction light that is to
be exhibited continuously. Later that same day, the agent drove out to
the antenna structure site and observed that the medium intensity
obstruction light on the top of the structure was not functioning.
3. On December 29, 2008, an agent from the Houston Office observed
antenna structure number 1052967 in Monaville, Texas, both prior to
and after local sunset. The medium intensity obstruction light was not
functioning. The agent then called the Federal Aviation Administration
("FAA") to determine if the structure owner had notified the FAA of
the outage and whether a Notice to Airmen ("NOTAM") had been issued.
The FAA reported that there was no current NOTAM for this structure,
so the agent informed the FAA of the lighting outage.
4. On March 2, 2009, an agent from the Houston Office observed antenna
structure number 1052967 near Monaville, Texas, both prior to and
after local sunset. The medium intensity obstruction light on the
structure was not functioning. The agent then called the FAA to
determine if the owner had notified the FAA about the outage and
whether a NOTAM had been issued. The FAA reported that there was no
current NOTAM for this structure, so the agent informed the FAA of the
outage.
5. On March 5, 2009, an agent from the Houston Office interviewed an
employee of ERF Wireless about antenna structure number 1052967. The
employee stated that ERF Wireless had purchased this antenna structure
from Bishop Tower Company at least one year ago and he had no
knowledge as to why it would not have been properly registered with
the Commission. He also stated that ERF Wireless does not visually
check the lights once every 24 hours and had not observed the
structure lights for about 6 months. He said that ERF Wireless was not
using an automatic alarm system to monitor the lights and that they
were in the process of looking for a monitoring system. Later that
same day, the agent accompanied by two employees of ERF Wireless
inspected antenna structure number 1052967 and observed that the
medium intensity obstruction light was not functioning. A visual
inspection of the lighting equipment installed at the site revealed it
was not functioning. As of March 26, 2009, the ASR database still
listed Bishop Tower Company as the owner of antenna structure number
1052967.
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) 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.
7. Section 17.51(b) of the Rules states that all high intensity and
medium intensity obstruction lighting shall be exhibited continuously
unless otherwise specified. Antenna structure number 1052967 is
required to exhibit continuously a medium intensity obstruction light.
An agent from the Houston Office observed that the medium intensity
strobe light on antenna structure number 1052967 was not functioning
on December 22 and 29, 2008, and on March 2 and 5, 2009. ERF Wireless
admitted that it had not observed the structure lights at least once
every 24 hours and did not maintain a properly working automatic alarm
system to detect the failure of the structure lights. Moreover, ERF
Wireless failed to notify the FAA about the lighting outage.
8. Section 17.57 of the Rules states that the owner of an antenna
structure which is registered with the Commission must notify
immediately the Commission upon any change in ownership information.
ERF Wireless purchased antenna structure number 1052967 at least as
early as March 2008. ERF Wireless was informed that it was not listed
as the structure owner in the ASR database on March 2, 2009. However,
as of March 24, 2009, the previous owner of the structure was still
listed as the structure owner in the ASR database.
9. Based on the evidence before us, we find that ERF Wireless apparently
willfully and repeatedly violated Sections 17.51(b) and 17.57 of the
Rules by failing to exhibit continuously the medium intensity lighting
on its antenna structure and failing to notify immediately the
Commission of the ownership change for this structure.
10. 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
is $10,000 and for failing to file required forms is $3,000. 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 ERF Wireless is apparently liable for a
$13,000 forfeiture.
IV. ORDERING CLAUSES
11. 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, ERF Wireless, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of thirteen thousand dollars ($13,000) for violations of
Sections 17.51(b) and 17.57 of the Rules.
12. 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, ERF Wireless, Inc. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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, ERF
Wireless, Inc will send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
14. 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.
15. 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.
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 ERF Wireless, Inc. 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: 17.51(b) and 17.57.
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."
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. 47 C.F.R.
S: 17.47(a).
The owner of an antenna structure is required to "report immediately by
telephone or telegraph to the
nearest Flight Service Station or office of the FAA any observed or
otherwise known extinguishment or
improper functioning of any top steady burning light or any flashing
obstruction light, regardless of its position on the antenna structure,
not corrected within 30 minutes." 47 C.F.R. S: 17.48.
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, 17.51(b),
17.57.
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission