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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Hawaiian Telcom, Inc. File Number: EB-09-HL-0094
)
Antenna Structure Registrant NAL/Acct. No.: 200932860003
)
Kamuela, Hawaii FRN: 0001520980
)
ASR No. 1002607
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 28, 2009
By the Resident Agent, Honolulu Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Hawaiian Telcom, Inc. ("Hawaiian Telcom), registrant of antenna
structure #1002607 near Kamuela, Hawaii, apparently repeatedly
violated Section 303(q) of the Communications Act of 1934, as amended,
("Act"), and Section 17.51(a) of the Commission's Rules ("Rules") by
failing to exhibit the structure's red obstruction lighting from
sunset to sunrise; by failing to maintain the antenna structure
painting and lighting in accordance with their Antenna Structure
Registration ("ASR"), a violation of Section 17.6(a) of the Rules; and
by failing to monitor the antenna structure's lights, using a properly
maintained indicator to register any failure of such lights, a
violation of Section 17.47(a) of the Rules. Hawaiian Telcom's failure
to make the required observations of the lighting on the antenna
structure resulted in its failure to notify the nearest Flight Service
Station of the Federal Aviation Administration ("FAA") of the outage
of the flashing obstruction light, a violation of Section 17.48 of the
Rules. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Hawaiian Telcom is apparently
liable for forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure #1002607 is an antenna tower of 47 meters
(approximately 154 feet) in height above ground. The registered owner
is Hawaiian Telcom. According to the antenna structure registration
("ASR") for antenna structure #1002607, the structure is required to
be painted and lit in accordance with specific Chapters of the FAA
Advisory Circular for Obstruction Marking and Lighting. Specifically,
the structure is required to be painted and have, at its top, a
flashing red obstruction beacon, along with steady burning red side
obstruction lights at the mid-point of its overall height.
3. On June 25, 2009, the Enforcement Bureau's Honolulu Resident Agent
Office received a complaint that the antenna structure at the Hawaiian
Telecom station/tower in Kamuela, Hawaii, located next to Highway 19
had been unlit for over a month. The Honolulu agent performed a search
of the FCC databases for a tower in Kamuela, Hawaii, that was
associated with Hawaiian Telcom and found an ASR record of #1002607
registered to Hawaiian Telcom. The Honolulu agent contacted the
Federal Aviation Administration ("FAA") Flight Service Station ("FSS")
to determine if the tower light outage had been reported. The FAA
informed the Honolulu agent that no prior light outage report had been
made for antenna structure #1002607. The Honolulu agent then contacted
Hawaiian Telcom to request they investigate the tower light status of
antenna structure in Kamuela, Hawaii.
4. On June 26, 2009, the Honolulu agent received an email from Hawaiian
Telcom advising that they confirmed that the Hawaiian Telcom tower,
antenna structure #1002607, in Kamuela, Hawaii was unlit, and stated
that they had scheduled a contractor to replace the bulb the following
week. Hawaiian Telcom acknowledged that they were unaware of the both
the tower light outage and the requirements to file a NOTAM with the
FAA FSS. The Honolulu agent informed Hawaiian Telcom that they were
required to contact the FAA FSS to generate a NOTAM for the unlit
structure. According to the FAA FSS log, a NOTAM was initiated by
Hawaiian Telcom on June 26, 2009 at approximately 1:57pm HST.
5. On June 29, 2009 the Honolulu agent contacted the Waimea Police
Department, Waimea, Hawaii, and asked that they dispatch an officer
during nighttime hours to observe antenna structure #1002607. The
agent received a phone call from the Waimea Police Department at 9:15
p.m. HST that evening confirming that the structure was unlit.
6. On July 1, 2009 a Honolulu agent inspected antenna structure
#1002607. The agent observed, at approximately 7:05 p.m. HST and
until about 7:30 p.m. HST, that the nighttime red obstruction top
beacon light for antenna structure #1002607 was lit, but not flashing
as required. The agent also noted that there were no side obstruction
lights on the tower, and that the structure painting was severely
cracked, chipped, and faded. The agent contacted Hawaiian Telcom on
July 2, 2009, requesting the logs concerning the light outage on
antenna structure #1002607.
7. On July 27, 2009, Hawaiian Telcom eventually provided a single written
record, which showed only that the top beacon was inoperative and then
restored to service on June 30, 2009, the day of repair. Hawaiian
Telcom acknowledged that the "[t]he site alarms for the beacon failure
were not received for this specific event. In speaking to our . . .
administrator, there have been some intermittent trap queue problems
that may have contributed to the alarms not being received."
III. DISCUSSION
8. 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.
9. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Section 17.51(a) of the Rules states that all red
obstruction lighting shall be exhibited from sunset to sunrise unless
otherwise specified. The FAA Advisory Circular chapters for antenna
structure #1002607 require that the structure be painted and have, at
its top, a flashing red beacon, along with mid-point steady burning
red side obstruction lights. Section 17.6(a) of the Rules requires
that the antenna structure owner maintain the painting and lighting in
accordance with the specifications set forth in the ASR. Section
17.47(a) of the Rules requires 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. Section 17.48 of the Rules requires that registered antenna
structures that have been assigned lighting specifications shall
report immediately by telephone or telegraph to the FSS or FAA any
observed or otherwise known extinguishment of any flashing obstruction
light not corrected within 30 minutes.
10. On June 25, 2009, the Enforcement Bureau's Honolulu Resident Agent
Office received a complaint that antenna structure #1002607 located
near Kamuela, Hawaii had been unlit for over a month. A Honolulu agent
contacted the FAA Flight Service Station and found that Hawaiian
Telcom had not reported the outage, and then contacted Hawaiian Telcom
to request that they investigate the tower light status of antenna
structure #1002607. On June 26, 2009, Hawaii Telcom confirmed to the
Honolulu agent that antenna structure #1002607 was unlit. At that
time, Hawaiian Telcom was not aware of the tower light outage, or of
the need to issue a NOTAM. On June 29, 2009, a Waimea Police Officer
observed that the top red beacon on antenna structure #1002607 was not
functioning. On July 1, 2009, at approximately 7:05 p.m., and until
approximately 7:30 p.m., a Honolulu agent observed that the top red
obstruction light on antenna structure #1002607 was lit, but not
flashing, as required. The agent also confirmed that the ASR Number
was not displayed, and that the structure did not have the two
required steady burning red obstruction lights installed at the tower
midpoint. In response to a request from the Honolulu agents, Hawaiian
Telcom was only able to produce one day of logs concerning the light
outage on antenna structure #1002607, and acknowledged that the site
alarms for the failure of the beacon on antenna structure #1002607 had
not been received.
11. Hawaiian Telcom's failure to properly observe and maintain an
indicator designed to register any lighting failure resulted in
Hawaiian Telcom's failure to monitor the lights on antenna structure
#1002607. This failure to monitor resulted in Hawaiian Telcom's
failure to notify the FAA Flight Service Station of the outage of the
flashing obstruction light, which is required to be exhibited from
sunset to sunrise. Based on the evidence before us, we find that
Hawaiian Telcom apparently repeatedly violated Section 303(q) of the
Act, and Sections 17.51(a), 17.47(a), 17.6(a) and 17.48 of the Rules,
by failing to maintain the required red obstruction lighting on
antenna structure #1002607; by failing to monitor the antenna
structure's lights, using a properly maintained indicator designed to
register any lighting failure; by failing to maintain the structure
painting and lighting in accordance with the ASR specifications, and
by failing to report the extinguishment of the top flashing red beacon
on antenna structure #1002607.
12. 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 the prescribed
lighting and/or marking for an antenna structure 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, and the statutory factors to the instant
case, we conclude that Hawaiian Telcom is apparently liable for a
$10,000 forfeiture.
IV. ORDERING CLAUSE
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's Rules, Hawaiian Telcom, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for violations of Section 303(q) of the
Act, and Sections 17.6(a), 17.47(a), 17.48 and 17.51(a) of the Rules.
14. 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, Hawaiian Telcom, Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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/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 TREAS/NYC, 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. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. Hawaiian Telcom, Inc., shall
also send electronic notification on the date said payment is made to
WR-Response@fcc.gov.
16. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Honolulu Resident
Agent Office, P.O. Box 971030, Waipahu, Hawaii 96797-1030 and must
include the NAL/Acct. No. referenced in the caption. An electronic
copy shall be sent to WR-Response@fcc.gov.
17. 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.
18. 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 Hawaiian Telcom, Inc., Attention To:
HIA5, P.O. Box 2200, Honolulu, Hawaii 96841.
FEDERAL COMMUNICATIONS COMMISSION
John R. Raymond
Resident Agent
Honolulu Resident Agent Office
Western Region
Enforcement Bureau
"Kamuela" and "Waimea" refer to the same geographic location, and are used
interchangeably.
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
47 C.F.R. S: 17.6(a).
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
47 U.S.C. S: 503(b).
See FAA Circular Number 70/7460-1G, Chapters 3, 4, 5 and 9.
FAA Circular Number 70/7460-1J, Appendix 1, Figure 11.
According to the U.S. Naval Observatory, sunset occurred at 7:06 p.m. HST
on July 1, 2009, in the Waimea/Kamuela area.
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."
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
FAA Circular Number 70/7460-1G, Chapters 3, 4, 5 and 9, Appendix 2, Figure
1.
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
FAA Circular Number 70/7460-1G, Chapters 3, 4, 5 and 9, Appendix 2, Figure
1.
12 12 FCC Rcd 17087(1997), recon. denied 15 FCC Rcd 303 (1999).
13 47 U.S.C. S: 503(b)(2)(E).
14 47 U.S.C. S:S: 303(q), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80, 17.6,
17.47(a), 17.48, 17.51(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
5
Federal Communications Commission