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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No. EB-10-SJ-001
Puerto Rico Telephone Company Inc.
) NAL/Acct. No.201032680002
San Juan, PR
) FRN 0001731470
Owner of Antenna Structure # 1010661
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 16, 2010
By the Resident Agent or San Juan Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Puerto Rico Telephone Company Inc. ("PRTC"), owner of antenna
structure number 1010661, in Aguadilla, Puerto Rico, apparently
willfully and repeatedly violated Sections 17.48 and 17.51(a) of the
Commission's Rules ("Rules") by failing to notify the Federal Aviation
Administration ("FAA") immediately of a lighting outage and failing to
exhibit red obstruction lighting from sunset to sunrise. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that PRTC is apparently liable for a forfeiture in
the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure number 1010611 is 275.5 overall feet above sea level
and, according to the Antenna Structure Registration database, is
required to be lit with dual red and medium intensity flashing white
lights.
3. On January 11, 2010, in response to a complaint of an unlit tower, an
agent from the Commission's San Juan office of the Enforcement Bureau
("San Juan Office") contacted the FAA to determine if a current Notice
to Airman ("NOTAM") had been issued for the structure. The FAA
informed the agent that no one had notified them of an outage on the
structure and that no NOTAM had been issued. On January 12 and 18,
2010, agents from the San Juan Office observed that all of the
structure's lights were unlit after sunset. On January 18, 2010, an
agent contacted the FAA to determine if the tower owner had reported
the tower light outage and was informed that the owner had not done
so.
4. On January 19, 2010, an agent from the San Juan Office contacted PRTC
about the outage. PRTC was unaware that the lights on the structure
were extinguished. On January 25, 2010, PRTC informed the San Juan
Office that the red light had been repaired and that in a few days the
white one would be installed. PRTC also stated that someone would be
checking the structure's lights each night.
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 17.51(a) of the Rules requires that all red obstruction
lighting be exhibited from sunset to sunrise. Section 17.47 of the
Rules requires owners of antenna structures to observe structure
lights visually once every 24 hours to ensure all lights are
functioning properly as required or employ an automatic alarm system
designed to detect any failure in the lights. Section 17.48 of the
Rules requires that owners of registered antenna structures that have
been assigned lighting specifications report immediately by telephone
or telegraph to the FAA any observed or otherwise known extinguishment
of any flashing obstruction light not corrected within 30 minutes. On
January 12 and 18, 2010, agents from the San Juan Office observed that
all required obstruction lighting on antenna structure number 1010661
was extinguished after sunset. PRTC did not notify the FAA of the
outage prior to being informed of the outage on January 19, 2010. PRTC
was unaware of the outage prior to January 19, 2010.
7. Based on the evidence before us, we find that PRTC apparently
willfully and repeatedly violated Sections 17.48 and 17.51(a) of the
Rules by failing to notify the FAA immediately of a lighting outage
and failing to exhibit all of the required red obstruction lights on
January 12 and 18, 2010.
8. 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 marking 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
PRTC is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
9. 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, Puerto Rico Telephone
Company Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000) for
violations of Sections 17.48 and 17.51(a) of the Rules.
10. 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, Puerto Rico Telephone
Company Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
11. 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 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. 20554.8 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, PRTC will send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, San Juan
Office, Room 762, Federal Building, Hato Rey, PR, 00918 and must
include the NAL/Acct. No. referenced in the caption.
13. 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.
14. 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 Puerto Rico Telephone Company Inc at
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent,
San Juan Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 17.48, 17.51(a).
47 U.S.C. S: 503(b).
An agent observed the unlit structure at 5:30 P.M. and 6:30 P.M. on
January 12 and after 7:00 P.M. on January 18. The agent notified the FAA
of the outage and the FAA issued a NOTAM regarding the structure.
Local sunset time was approximately 6:15 P.M.
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: 17.47.
47 C.F.R. S: 17.48(a).
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, 17.48,
17.51(a).
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission