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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AT&T Wireless Services, Inc. ) File No. EB-00-SF-671
)
Washington, DC ) NAL/Acct.No. 20013276001
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 11, 2001 Released:
January 16, 2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find AT&T Wireless Services, Inc., (``AT&T Wireless'')
Washington, DC, apparently liable for a forfeiture in the amount
of eighteen thousand dollars ($18,000) for nine violations of
Section 17.4(g) of the Commission's Rules, relating to the
posting of antenna structure registration numbers.1
Specifically, the Commission's Rules require that antenna
structure owners post the Antenna Structure Registration (ASR)
numbers near the base of an antenna structure. We find that
during the period of April 20, 2000 through December 7, 2000,
AT&T Wireless failed to comply with this requirement in nine
instances. A list of the specific violations is attached. See
Attachment 1.
II. BACKGROUND
2. The Commission's antenna structure painting, lighting
and registration requirements operate in concert with Federal
Aviation Administration (``FAA'') regulations to ensure that
antenna structures do not present hazards to air navigation.
Generally, our rules require that antenna structures located
close to airports or that are greater than 200 feet in height
comply with painting and lighting specifications designed to
ensure air safety. We require antenna structure owners to
register antenna structures with the Commission and post ASR
numbers at the base of antenna structures to allow for easy
contact if problems arise. The Commission's Rules requiring
antenna structure registration for all antenna structures that
may pose a hazard to air navigation have been in effect since
July 1, 1998.2 We have repeatedly advised antenna structure
owners that all existing, unregistered antenna structures subject
to our rules must be registered immediately or the owners face a
monetary forfeiture or other enforcement action.3
3. Because of the significant public safety concern
related to antenna structure registration, Enforcement Bureau
field agents regularly inspect antenna structures to determine
compliance with the Commission's registration and antenna
structure painting and lighting requirements. During routine
inspections of antenna structures owned by AT&T Wireless, from
April 20, 2000 to December 7, 2000, Bureau field agents
discovered nine antenna structures that did not have the ASR
numbers posted as required. These antenna structures are
identified by FCC case number, violation date, structure
geographic location and ASR number in Attachment 1.
III. DISCUSSION
4. Based on the evidence before us, we find that AT&T
Wireless apparently willfully and repeatedly4 violated Section
17.4(g) of the Commission's Rules5 by its failure to comply with
the Commission's Rules regarding the posting of antenna structure
registration numbers.
5. Section 503(b) of the Act authorizes the Commission to
assess a forfeiture of up to $110,000 for each violation of the
Act or of any rule, regulation, or order issued by the Commission
under the Act by a common carrier.6 In exercising such
authority, we are to take into account "the nature,
circumstances, extent, and gravity of the violation and, with
respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and such other matters as
justice may require.''7
6. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines ("Forfeiture Policy Statement")8 does not
establish a base forfeiture amount for failure to post the
antenna structure registration number.9 The Commission has
determined that an appropriate base amount is $2,000 per
violation.10 Application of that base amount to each of AT&T
Wireless' violations would lead to a proposed forfeiture of
$18,000. We find no basis for making any adjustments to this
amount.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,11 Section 1.80 of the Commission's Rules,12
and the authority delegated in Sections 0.111 and 0.311 of the
Commission's Rules,13 AT&T Wireless Services, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eighteen thousand dollars ($18,000) for violating
Section 17.4(g) of the Commission's Rules14.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80
of the Commission's Rules,15 within thirty days of the release
date of this NOTICE OF APPARENT LIABILITY, AT&T Wireless
Services, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 20013276001 referenced above.
10. The response if any must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Technical and Public Safety Division and must include the
NAL/Acct. No. 20013276001.
11. 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; 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.
12. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.16
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to David Jatlow, Vice President, Regulatory Affairs,
AT&T Wireless Services, Inc. at Fourth Floor, 1150 Connecticut
Avenue, NW, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau Attachment #1
Case Number Violation Tower Location ASR Number
Date
EB-00-PO- 12/07/00 Vancouver, WA 1015212
240
EB-00-AN- 9/14/00 Glenallen, AK 1013266
127
EB-00-AN- 8/30/00 Kenai, AK 1002894
108
EB-00-TP- 8/10/00 Durbin, FL 1029363
587
EB-00-DL- 7/27/00 Bowie, TX 1002061
237
EB-00-PO- 6/21/00 Portland, OR 1004054
168
EB-00-DV- 4/27/00 Denver, CO 1020065
200
EB-00-DV- 4/27/00 Watkins, CO 1023350
215
EB-00-TP- 4/20/00 Fernandina 1029321
366 Beach, FL
_________________________
1 47 C.F.R. § 17.4(g).
2 47 C.F.R. § 17.4(a)(2).
3 Antenna structure owners were required to register existing
antenna structures as of July 1, 1998 and to register new antenna
structures prior to construction. Streamlining the Commission's
Antenna Structure Clearance Procedure, 11 FCC Rcd 4272 (1995).
Subsequent to the expiration of the filing period, the Commission
staff issued a Public Notice warning antenna structure owners to
register any unregistered antenna structures subject to our
requirements immediately or face possible monetary forfeitures or
other enforcement action. Public Notice, "No?Tolerance Policy
Adopted for Unregistered Antenna Structures, 1999 WL 10060 (WTB
1999)." In addition, in June and July 1999, the Wireless
Telecommunications Bureau sent letters to licensees informing
them that the Commission had no valid registration for their
antenna site and that owners and, to the extent they were liable,
tenants could face monetary forfeitures for structures that
remained unregistered.
4 Section 312(f)(1) of the Act, 47 U.S.C. § 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 ....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991). The term ``repeated'' means the commission or
omission of an act more than once. 47 U.S.C. § 312(f)(2).
5 47 C.F.R. § 17.4(g)
6 Section 503(b)(2)(B) provides for forfeitures up to $100,000
for each violation by a common carrier. See 47 U.S.C. § 503(b);
47 C.F.R. § 1.80. The Commission amended its Rules by adding a
new subsection to its monetary forfeiture provisions that
incorporates by reference the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996 (Pub. L.
104-134, Sec. 31001, 110 Stat. 1321), enacted on April 26, 1996.
Thus, the statutory maximum pursuant to Section 503(b)(2)(B)
increased from $100,000 to $110,000. See Amendment of Section
1.80 of the Commission's Rules, 12 FCC Rcd 1038 (1997).
7 47 U.S.C. § 503(b)(2)(D)
8 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999)
9 The fact that the Guidelines do not specify a base amount does
not indicate that no forfeiture should be imposed. The
Guidelines state that "... any omission of a specific rule
violation from the . . . [forfeiture guidelines] . . . should not
signal that the Commission considers any unlisted violation as
nonexistent or unimportant. Forfeiture Guidelines, at 17,099,
para. 22. The Commission retains the discretion, moreover, to
depart from the Guidelines and issue forfeitures on a
case?by?case basis, under its general forfeiture authority
contained in section 503 of the Act. Id.
10 American Tower Corporation, FCC 01-9 (released: January 16,
2001).
11 47 U.S.C. § 503(b).
12 47 C.F.R. § 1.80.
13 47 C.F.R. §§ 0.111, 0.311.
14 47 C.F.R. § 17.4(g)
15 47 C.F.R. § 1.80.
16 See 47 C.F.R. § 1.1914.