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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No: EB-09-AN-0011
Waldec Enterprises, Inc.
) NAL/Acct. No.: 201032780001
Registrant of ASR #1253674
) FRN: 0015110877
Anchorage, Alaska
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 21, 2009
By the Resident Agent, Anchorage Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Waldec Enterprises, Inc. ("Waldec") registrant of antenna
structure number 1253674, in Anchorage, Alaska, apparently willfully
and repeatedly violated Section 17.23 of the Commission's Rules
("Rules") by failing to conform to the FAA's painting and lighting
recommendations as set forth on the structure's FAA determination of
"no hazard." We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Waldec
Enterprises, Inc. is apparently liable for forfeiture in the amount of
four thousand dollars ($4,000).
II. BACKGROUND
2. Antenna structure 1253674 is 48.7 meters in height above ground and,
due to its proximity to airfields, according to its antenna structure
registration ("ASR"), is required to have lighting in accordance with
specific Chapters of the FAA Advisory Circular for Obstruction Marking
and Lighting. Specifically, the Chapters detail that the antenna
structure is required to have top mounted lighting and, in particular,
Chapter 5 requires structures exceeding 150 feet (46m) AGL to have at
least one red flashing (L-864) beacon installed in a manner to ensure
an unobstructed view of one or more lights by a pilot. Further review
of the Commission's ASR records reveals that the ASR for antenna
structure number 1253674 reflects a height above ground of 48.7 meters
and a construction completion date of July 9, 2007.
3. On May 14, 2009, agents from the Anchorage Resident Agent Office
inspected antenna structure number 1253674, located near the
intersection of Boniface Parkway and DeBarr Road in Anchorage, Alaska.
The agent's located ASR number 1253674 posted at the site. The agents
observed and documented that the top mounted lighting on the antenna
structure consisted of one steady burning red light.
4. Prior to that inspection, on August 10, 2007, Anchorage agents
inspected antenna structure number 1253674. The agents observed and
documented that the top mounted lighting on the antenna structure
consisted of one side-by-side red light.
5. On August 30, 2007, an agent from the Anchorage Resident Agent Office
issued a Notice of Violation ("NOV") to Waldec. The NOV specified that
antenna structure number 1253674 was in violation of Section 17.23 of
the Commission's Rules, which requires that antenna structures must
conform to the FAA's painting and lighting recommendations set forth
on the structures' FAA determination of "no hazard," as referenced in
the relevant FAA Advisory Circulars. The recommendations for antenna
structure number 1253674 are found in FAA Study 2006-AAL-72-OE, which
requires that antenna structure number 1253674 have top mounted
lighting consisting of a flashing red beacon.
6. On September 24, 2007, the Anchorage Resident Agent Office received a
written response to the NOV issued to Waldec. The Waldec NOV response
states that it was aware of the FAA Chapter 5 lighting requirement
which required a L-864 type red flashing beacon, but that they were
advised by employees of a communications company who they believed had
expert experience and knowledge of the FCC and FAA rules, that a L-810
type side-by-side solid red (non-flashing) light would be sufficient,
and requested the Anchorage Office grant a waiver or variance to the
required L-864 red flashing light requirement and allow the existing
L-810 type lighting to remain until such time that the overall height
of the structure is increased.
7. On September 26, 2007, an Anchorage resident agent discussed the NOV
response with a Waldec representative. The Anchorage agent advised
that the Anchorage Office cannot issue waivers or variances, that
compliance with the lighting specifications in the antenna structure's
ASR and FAA Study is required, that if the record is in error then
the registrant must bring the error to the FAA to correct or rework
the Obstruction Evaluation (OE), and that Waldec keep the Anchorage
office informed of progress toward coming into compliance. No further
communications were received from Waldec.
8. On April 10, 2008, Anchorage agents from the Anchorage Resident Agent
Office inspected antenna structure number 1253674. The agents
observed and documented that the top mounted lighting on the antenna
structure consisted of one steady burning red light.
III. DISCUSSION
9. 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.
10. Section 17.23 of the Rules requires that each new or altered antenna
structure to be registered on or after January 1, 1996, must conform
to the FAA's painting and lighting recommendations set forth on the
structures' FAA determination of "no hazard," as referenced in the
following FAA Advisory Circulars: AC 70/7460-1J "Obstruction Marking
and Lighting," effective January 1, 1996, and AC 150/5345-43E,
"Specification for Obstruction Lighting Equipment," dated October 19,
1995. On August 30, 2007, the Anchorage Office notified Waldec that
the lighting on antenna structure number 1253674 did not comply with
the FAA lighting recommendations for the structure. On April 10, 2008,
and May 14, 2009, Anchorage agents observed that the lighting on
antenna structure number 1253674 failed to comply with the FAA's
lighting recommendations for the structure.
11. Waldec failed to bring the lighting on antenna structure number
1253674 into compliance with the FAA recommendations, despite
receiving a NOV concerning the violation from the Anchorage Office.
Therefore, Waldec's violation of Section 17.23 is willful. The
violation occurred on more than one day, therefore, it is repeated.
Based on the evidence before us, we find that Waldec willfully and
repeatedly violated Section 17.23 of the Rules by failing to conform
the lighting on antenna structure number 1253674 with the FAA
recommendations for the antenna structure.
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 failure to comply with prescribed lighting
specifications 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 the
structure is partially in compliance by having some form of red
obstruction lighting at its top and, therefore, we find Waldec is
apparently liable for a $4,000 forfeiture.
IV. ORDERING CLAUSES
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, Waldec Enterprises, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for violation of Section 17.23 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, Waldec Enterprises, 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.
16. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Anchorage Resident
Agent Office, P.O. Box 221849, Anchorage, Alaska 99522-1849 and must
include the NAL/Acct. No. referenced in the caption.
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 Waldec Enterprises, Inc., at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Marlene Windel
Resident Agent
Anchorage Resident Agent Office
Western Region
Enforcement Bureau
47 C.F.R. S: 17.23.
47 U.S.C. S: 503(b).
FAA Circular Number 70/7460-1K, Chapters 4, 5, and 12.
FAA Circular Number 70/7460-1K, Chapters 4, 5, and 12.
See Notice of Violation (Corrected Copy), File No. EB-07-AN-039, NOV No:
V20073278005, released August 30, 2007.
FAA Circular Number 70/7460-1K, Chapters 4, 5, and 12.
See Letter from Waldec Enterprises, Inc., to the Anchorage Resident Agent
Office dated September 19, 2007 ("Response").
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 C.F.R. S: 17.23.
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, 1.80, 17.23.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission