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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
American InfoAge, LLC ) File No. EB-01-TP-073
)
Antenna Structure Registration # 1202433 ) NAL/Acct. No.
200132700007
Clearwater, FL )
FORFEITURE ORDER
Adopted: August 30, 2001 Released: September 4,
2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000) to American InfoAge, LLC (``InfoAge'') for willful
violation of Section 17.51(b) of the Commission's Rules
(``Rules'') relating to the lighting of communications
towers.1 The noted violation involves InfoAge's failure to
exhibit the required obstruction lighting on its Clearwater,
Florida antenna structure.
2. On April 25, 2001, the Commission's Tampa, Florida
Field Office (``Tampa Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to InfoAge for a forfeiture
in the amount of ten thousand dollars ($10,000).2 InfoAge
filed a response to the NAL on June 25, 2001.
II. BACKGROUND
3. On February 15, 2001, the Commission's Tampa Office
received a complaint regarding an antenna structure in
Clearwater, Florida. The complainant alleged that the white
strobe light at the top of the antenna structure had been out
for over a month. The same day, agents from the Tampa Office
drove to the antenna structure site to investigate the
allegation. The agents observed that there were no lights
illuminated on the antenna structure. The agents further
observed that the antenna structure registration (``ASR'')
number was not posted either on the base of the antenna
structure or on the fence surrounding the antenna structure.
While there was a sign on the fence with a space indicated for
the ASR number, the number was not posted on the sign.
4. On February 15, 2001, following the inspection, an
agent from the Tampa Office checked with the Federal Aviation
Administration's (``FAA'') St. Petersburg Flight Service
Station (``St. Petersburg FSS'') and confirmed that there was
no Notice to Airmen (``NOTAM'')3 in effect for the Clearwater
tower. The agent then contacted InfoAge and spoke with its
Chief Operating Officer, Jim Bondurant. Mr. Bondurant told
the agent that, due to a switching malfunction, the tower's
blinking red (nighttime) light was not automatically coming on
until it was very dark outside, leaving the white strobe light
used for daytime lighting on longer than intended. He stated
that the white strobe light had been turned off because
InfoAge had received complaints about the white strobe light
blinding nighttime traffic on a nearby highway. The agent
advised Mr. Bondurant to contact the St. Petersburg FSS and
get a NOTAM issued for the tower. The agent also informed Mr.
Bondurant that the ASR number was not posted at the site. Mr.
Bondurant provided the ASR number and stated that he would
have it posted at the site as soon as possible.
5. On April 25, 2001, the Tampa Office issued an NAL for a
forfeiture in the amount of $10,000 to InfoAge for failing to
exhibit the required medium intensity obstruction lighting on
the Clearwater antenna structure in willful violation of
Section 17.51(b) of the Rules. InfoAge filed a response to
the NAL on June 25, 2001. In this response, InfoAge asserts
that a $10,000 forfeiture is unwarranted because it did not
willfully violate the rules and that the violation in this
case, if any, was minor. First, InfoAge argues that the
statement in the NAL that ``no lights were illuminated on the
tower structure'' is incorrect. Instead, InfoAge asserts
that, due to the switching malfunction, there was a blinking
red light on the tower, rather than a white strobe light. In
addition, InfoAge claims that it never ``intentionally
disconnected'' the white strobe light on the tower as stated
in the NAL. Rather, InfoAge states it simply complied with a
request by the City of Clearwater to switch the lighting from
the daytime mode to the nighttime mode until the switching
malfunction could be repaired so that the white strobe light
would not create a traffic hazard for nighttime drivers.
InfoAge also asserts that area residents have been openly
hostile towards the construction and operation of the tower
and that the switching malfunction was probably the result of
vandalism. Moreover, InfoAge states that it immediately
called the St. Petersburg FSS to get a NOTAM issued for the
tower after being contacted by the FCC, that it acted promptly
to repair the switching malfunction, and that it has no
history of prior violations. Finally, InfoAge disputes the
statement in the NAL that the ASR number was not posted at the
tower site. According to InfoAge, the number was posted at
the base of the tower, but the agent's view of the number may
have been obstructed by tenant cabling. InfoAge also claims
that there was a sign on the fence with space for the ASR
number, but the number had been printed incorrectly and
InfoAge was waiting for a replacement number at the time of
the inspection.
III. DISCUSSION
6. The forfeiture amount in this case was assessed in
accordance with Section 503 of the Communications Act of 1934,
as amended (``Act''),4 Section 1.80 of the Rules, 5 and The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining InfoAge's
response, Section 503(b) of the Act requires that the
Commission 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 other such matters as justice
may require.6
7. Section 17.51(b) of the Rules provides that all high
and medium intensity obstruction lighting on antenna
structures must be exhibited continuously unless otherwise
specified in the ASR. InfoAge asserts that it did not
willfully violate Section 17.51(b). We disagree. Section
312(f)(1) of the 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
....''7 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). Moreover, 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). InfoAge willfully violated Section 17.51(b)
because it consciously and deliberately switched the lighting
from the daytime mode (white strobe) to the nighttime mode
(blinking red) at a time when the daytime lighting was
required to be on.
8. InfoAge argues that the statement in the NAL that ``no
lights were illuminated on the tower structure'' is incorrect
because a blinking red light was operating on the tower.
However, at the time of the inspection, the FCC agents
observed no lights, either blinking red or white strobe,
illuminated on the tower. In any event, even assuming that
there was a blinking red light operating on the tower, InfoAge
was still in violation of Section 17.51(b), which requires
operation of the tower's white strobe light during daytime
hours. Moreover, it is immaterial whether InfoAge
``intentionally disconnected'' the white strobe light or
simply switched the tower's lighting from daytime to nighttime
mode. It is undisputed that at the time of the inspection the
tower's daytime lighting was not operating as required by
Section 17.51(b). Further, while InfoAge asserts that the
switching malfunction was probably the result of vandalism
from area residents, the fact remains that InfoAge did not
properly light the tower based on its decision to switch to a
blinking red light instead of the required white strobe.
9. We also disagree with InfoAge's assertion that the
violation in this case was minor. The Commission considers
tower lighting violations to be very serious due to the danger
posed to aircraft. We note, in this regard, that InfoAge's
tower is located approximately two miles from the Clearwater
Airpark. The FAA has determined that the use of a white
strobe light on the tower during the daytime is the minimum
lighting that will produce an acceptable level of safety to
air navigation. The use of a red blinking light during
daytime hours greatly reduces the tower's visibility and may
impair aviation safety. Thus, InfoAge's violation caused a
risk to safety. Additionally, we note that InfoAge's remedial
actions to correct the violation, while commendable, are not a
mitigating factor. See Station KGVL, Inc., 42 FCC 2d 258, 259
(1973). However, after considering InfoAge's overall history
of compliance with the Commission's rules, we conclude that it
is appropriate to reduce the forfeiture from $10,000 to
$8,000.
10. Finally, although InfoAge's failure to post the ASR
number was not a basis for the forfeiture proposed in the NAL,
we note that photographs taken at the time of the inspection
clearly show that the ASR number was not posted either on the
base of the tower or on the sign attached to the fence
surrounding the tower.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80(f)(4)
of the Rules,9 American InfoAge, LLC, IS LIABLE FOR A MONETARY
FORFEITURE in the amount of eight thousand dollars ($8,000)
for willful 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 Rules 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.10 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, 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. 20554.11
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to American
InfoAge, LLC, 2727 Ulmerton Road, Suite 230, Clearwater
Florida 33762, Attn: Jim Bondurant, and to its counsel, Darryl
R. Richards, Esq., Johnson, Blakely, Pope, Bokor, Ruppel &
Burns, P.A., P.O. Box 1100, Tampa, Florida 33601.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.51(b).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132700007 (Enf. Bur., Tampa Office, released April 25, 2001).
3 Tower owners are required to report any obstruction lighting
outages to the nearest Flight Service Station or FAA office
immediately if the outage is not corrected within 30 minutes.
See 47 C.F.R. § 17.48(a). The FAA then issues a NOTAM, a written
advisory to aircraft pilots regarding a hazard or potential
hazard of which they should be aware. A NOTAM expires
automatically after 15 days, unless the tower owner calls the FAA
to extend the NOTAM.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 312(f)(1).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 U.S.C. § 504(a).
11 See 47 C.F.R. § 1.1914.