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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
NetCom Technologies, Inc. ) File No. EB-00-SJ-094
)
Condominio Castillo del Mar, PMB-1222) NAL/Acct. No.
200132680001
#4633 Isla Verde Ave. )
Carolina, Puerto Rico 00979-53000 )
MEMORANDUM OPINION AND ORDER
Adopted: May 7, 2001 Released: May 9, 2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
grant in part a petition for reconsideration filed by NetCom
Technologies, Inc. (``NetCom'')1 of a Forfeiture Order which
issued a monetary forfeiture in the amount of thirteen
thousand dollars ($13,000) to Netcom for willful and repeated
violations of Sections 17.4(a)(1) and 17.51(b) of the
Commission's Rules (``Rules'').2 The noted violations
involved NetCom's failure to register its Juana Diaz, Puerto
Rico antenna structure and its failure to exhibit medium
intensity obstruction lighting on its Juana Diaz, Puerto Rico
antenna structure. For the reasons that follow, we reduce the
forfeiture amount to ten thousand five hundred dollars
($10,500).
II. BACKGROUND
2. On September 21, 2000, an agent from the Commission's
San Juan, Puerto Rico Resident Agent Office (``San Juan
Office'') inspected a communications tower in Juana Diaz,
Puerto Rico at the approximate coordinates 18°02'02'' North
latitude and 066°28'27'' West longitude at 8:00 a.m. AST.
Although the tower was more than 200 feet in height above
ground level, the agent observed that there were no medium
intensity obstruction lights in operation on the tower.
3. On September 29, 2000, the agent inspected the Juana
Diaz tower at 8:00 a.m. and again at 5:15 p.m. AST. Both
times, the agent observed that the tower had no medium
intensity obstruction lighting in operation. The agent
searched Commission and industry databases and found no
antenna structure registration for this tower.
4. On October 2, 2000, the agent contacted the Federal
Aviation Administration's San Juan Flight Service Station
(``San Juan FSS'') to find out whether there was a Notice to
Airmen (``NOTAM'') in effect for the Juana Diaz tower.
Section 17.48(a) of the Rules requires that tower owners
immediately report to the nearest FAA Flight Service Station
or office any extinguished or improperly functioning
obstruction lights not corrected within 30 minutes.3 The FAA
then issues a NOTAM for a period of 15 days advising aircraft
pilots that there is an antenna structure at a specific
location with a temporary light outage. The San Juan FSS
informed the agent that there was no NOTAM in effect for the
Juana Diaz tower.
5. On October 3, 2000, after obtaining contact information
for the Juana Diaz tower from the owner of a neighboring
tower, the agent contacted Mr. Luis Sanchez, the construction
manager for NetCom. The agent advised Mr. Sanchez that the
medium obstruction lighting on the Juana Diaz tower was not in
operation and that there was no NOTAM in effect for the tower.
The agent also advised Mr. Sanchez that there was no antenna
structure registration for the tower in the Commission's
database and requested that Mr. Sanchez provide evidence of
the structure's registration with the Commission. Mr. Sanchez
informed the agent that the lighting problems on the Juana
Diaz tower had been ongoing for about two weeks. Mr. Sanchez
also told the agent that he would get a NOTAM issued for the
tower and that he would contact NetCom's headquarters in
California to get the antenna structure registration number
for the tower and fax this information to the agent. On
October 10, 2000, the agent still had not received this
information and again contacted Mr. Sanchez to request
evidence of the tower's registration. Mr. Sanchez told the
agent that he would have NetCom's San Juan office fax the
agent whatever information they had. As of October 13, 2000,
the agent still had not received from NetCom any evidence that
the Juana Diaz tower was registered with the Commission.
6. On October 19, 2000, the San Juan Office issued a
Notice of Apparent Liability for a Forfeiture (``NAL'') to
NetCom in the amount of $13,000 for failing to register the
Juana Diaz tower in violation of Section 17.4(a)(1) of the
Rules and failing to exhibit medium intensity obstruction
lighting on the tower in violation of Section 17.51(b) of the
Rules. NetCom did not respond to the NAL. On February 9,
2001, the Enforcement Bureau issued a Forfeiture Order
affirming the forfeiture. NetCom filed a petition for
reconsideration of the Forfeiture Order on March 9, 2001. In
this petition, NetCom requests that we reduce the forfeiture
amount from $13,000 to $1,000. NetCom asserts that the
forfeiture should be reduced because it was aware of the
lighting outage and was already taking action to correct the
problem prior to being notified by the FCC about the outage.
In addition, NetCom argues that its failure to register the
tower was not a ``willful'' violation because it filed an
antenna structure registration application electronically for
the tower in June 2000 but did not realize that the electronic
filing had not been effective. Finally, NetCom asserts that
this is the first time it has been cited by the FCC for a
violation.
III. DISCUSSION
7. In its petition for reconsideration, NetCom argues that
the forfeiture should be reduced because it was aware of the
lighting outage on the Juana Diaz tower and was already taking
action to correct the problem when the FCC first contacted it
about the outage. NetCom states that it discovered the
lighting outage in late September 2000 and repeatedly restored
the lighting prior to being notified by the FCC on October 3,
2000 that the lighting was not functioning. NetCom further
states that after being notified of the lighting outage by the
FCC, it conducted an extensive examination of the tower's
lighting mechanism and discovered a latent defect in the
lighting mechanism that had interfered with the previous
restorations. Citing Motorola, Inc., 12 FCC Rcd 15268 (Compl.
& Inf. Bur. 1997) (``Motorola''), NetCom asserts that in a
similar situation the Commission reduced a forfeiture issued
to Motorola where Motorola's attempts to fix a lighting outage
``stemmed from Motorola's own efforts and not a hasty attempt
to comply due to the FCC inspection.'' We are not persuaded
that NetCom's actions provide a basis for mitigation of the
forfeiture amount. In this regard, we believe that the
instant case is distinguishable from Motorola. As noted
above, Section 17.48(a) of the Rules requires that tower
owners immediately report to the nearest FAA Flight Service
Station or office any extinguished or improperly functioning
obstruction lights not corrected within 30 minutes. In
Motorola, the forfeiture amount was reduced based on a finding
that Motorola notified the FAA of the lighting outage prior to
the inspection of the tower by the FCC and stayed in contact
with the FAA until the lighting outage was corrected. Id. In
the instant case, although NetCom acknowledges that the
lighting on the Juana Diaz tower had been repeatedly
malfunctioning for about two weeks, it did not comply with
Section 17.48(a) and report the improperly functioning lights
to the FAA prior to being contacted by the FCC. We consider
prompt notification to the FAA as required by Section 17.48(a)
to be essential in ensuring safety to air navigation. Given
NetCom's failure to report the repeatedly malfunctioning
lights to the FAA, we find that its actions to correct the
lighting problem, while commendable, do not warrant reduction
of the forfeiture.
8. NetCom also argues that its failure to register the
antenna structure was not a ``willful'' violation because a
contractor retained by NetCom filed an antenna structure
registration application electronically for the Juana Diaz
tower in June 2000, but did not realize that the electronic
filing had not been effective. NetCom asserts that the
failure of the filing was due to a fault in the Commission's
electronic filing system. We disagree with NetCom's argument
that its failure to register the antenna structure was not a
``willful'' violation. Section 312(f)(1) of the
Communications Act of 1934, as amended, (``Act'') provides
that ``the term `willful,' when used with reference to the
commission or omission of any act, means the conscious or
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 ....''4 This definition applies
to the term ``willful'' as used in Section 503(b) of the Act.
See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991). A violation resulting from an inadvertent mistake or
a failure to become familiar with the FCC's requirements is
considered a willful violation. See PBJ Communications of
Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard Communications
Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting Co., Inc., 96
FCC 2d 1235, 1242 (1984). Furthermore, the Commission has
long held that licensees and other Commission regulatees are
responsible for the acts and omissions of their employees and
independent contractors. See MTD, Inc., 6 FCC Rcd 34, 35
(1991); Wagenvoord Broadcasting Co., 35 FCC 2d 361 (1972).
9. As an initial matter, we note that NetCom offers no
evidence or explanation to support its assertion that the
failure of the filing was due to a fault in the Commission's
electronic filing system, rather than an error made by its
contractor. Moreover, we do not see how NetCom could have
reasonably believed that the electronic filing had been
effective. In Streamlining the Commission's Antenna Structure
Clearance Procedure, 11 FCC Rcd 4272, 4281-82 (1995), the
Commission stated that electronic filing of antenna structure
registrations ``will enable the owner to register the
structure with the Commission and receive a registration
number within minutes.'' In a June 21, 1999, public notice
announcing new procedures for antenna structure registration,
the Commission indicated that it would issue a file number
upon electronic filing of an antenna structure registration
but would not issue a Registration Number until it grants the
registration.5 The Commission further stated that ``[b]ecause
the new system will process applications immediately,
electronic filers will be able to submit their applications
and receive a valid Registration Number within minutes if it
passes all system edits.''6 In addition, the on-line help for
the electronic antenna structure registration application
states ``[i]f there are no errors and the application is
successfully submitted and autogranted, the system will return
a message with the file number of your application and your
new registration.''7 Thus, a tower owner which files an
antenna structure registration application electronically will
know if its application was submitted successfully because it
will receive a confirmation message with a file number and, in
most instances, a Registration Number within minutes. If
NetCom's contractor had filed the electronic application
successfully, he would have received a confirmation message
with a file number. Failing to receive a confirmation message
with a file number, he should have known that the electronic
filing was not successfully submitted. As noted above, under
longstanding Commission precedent, NetCom is responsible for
the acts and omissions of its contractor. Further, although
NetCom never received a Registration Number or a paper copy of
the Registration,8 it did not follow through to verify that
the application had been received by the Commission.
Accordingly, we conclude that NetCom's failure to register its
antenna structure was a willful violation.
10. Finally, NetCom argues that the forfeiture should be
reduced because it has no history of prior violations. After
considering NetCom's history of compliance with the
Commission's rules, we conclude that it is appropriate to
reduce the forfeiture from $13,000 to $10,500.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended
(``Act''),9 and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,10 NetCom Technologies, Inc., IS LIABLE FOR A MONETARY
FORFEITURE in the amount of ten thousand five hundred dollars
($10,500) for failing to register its Juana Diaz, Puerto Rico
antenna structure in willful and repeated violation of Section
17.4(a)(1) of the Rules and for failing to exhibit medium
intensity obstruction lighting on its Juana Diaz, Puerto Rico
antenna structure in willful and repeated violation of Section
17.51(b) of the Rules.
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules11 within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.12 Payment shall be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, Forfeiture Collection Section, Finance Branch,
P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should note the NAL/Acct. No. referenced above. Requests for
full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.13
13. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail, Return Receipt Requested, to
counsel for NetCom Technologies, Inc., Rachael E. Schwartz,
Esq., Baker & McKenzie, 815 Connecticut Ave., N.W.,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 NetCom Technologies, Inc. is now known as VelociTel, Inc.
However, for convenience, we will continue to refer to the entity
as ``NetCom,'' the name used at the time the violations occurred.
2 47 C.F.R. §§ 17.4(a)(1) and 17.51(b).
3 47 C.F.R. § 17.48(a).
4 47 U.S.C. § 312(f)(1).
5 Public Notice, ``Commission Announces New Procedures for
Antenna Structure Registration,'' DA 99-1186 (released June 21,
1999).
6 Id.
7 See http://wtbwww05.fcc.gov/ULSTower/helpappq.html.
8 In the June 21, 1999, public notice announcing new
procedures for antenna structure registration, the Commission
stated that it will continue to issue a paper Registration (Form
854R) for each antenna structure registration. See Public
Notice, ``Commission Announces New Procedures for Antenna
Structure Registration,'' DA 99-1186 (released June 21, 1999).
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 C.F.R. § 1.80.
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.