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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Rio Grande Transmission, Inc. ) File No. EB-00-DV-426
)
Owner of Antenna Structure # 1003282 ) NAL/Acct. No.
200132800001
Apache Springs, New Mexico )
FORFEITURE ORDER
Adopted: September 24, 2001 Released: September 26,
2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of thirteen thousand dollars
($13,000) to Rio Grande Transmission, Inc. (``Rio Grande'')
for willful violation of Section 303(q) of the Communications
Act of 1934, as amended (``Act''),1 and Sections 17.23 and
17.57 of the Commission's Rules (``Rules'').2 The noted
violations involve Rio Grande's failure to comply with
painting and lighting specifications on its Apache Springs,
New Mexico antenna structure and its failure to notify the
Commission immediately of a change in the height of the Apache
Springs antenna structure.
2. On April 26, 2001, the Commission's Denver, Colorado
Field Office (``Denver Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Rio Grande for a
forfeiture in the amount of thirteen thousand dollars
($13,000).3 Broadwing Communications Services, Inc.
(``Broadwing''), Rio Grande's parent company, filed a response
to the NAL on June 4, 2001.
II. BACKGROUND
3. On July 19, 2000, at approximately 9:10 a.m., an FCC
agent from the Denver Office inspected an antenna structure
located in Apache Springs, New Mexico with antenna structure
registration (``ASR'') number 1003282, which at that time was
owned by Rio Grande.4 At the time of the inspection, the
tower exceeded 200 feet in height and therefore was required
to be painted and illuminated in accordance with Section 17.23
of the Rules. Specifically, the ASR for this tower indicated
that the painting and lighting were to comply with Chapters 3,
4, 5 and 9 of FAA Advisory Circular 70/7460-1G. During the
inspection, the agent observed that the tower was neither
painted nor lighted. In addition, the agent observed that the
ASR number was not posted on or near the base of the antenna
structure.
4. On September 6, 2000, the Denver Office issued a Notice
of Violation (``NOV'') to Rio Grande for failure to comply
with the painting and lighting specifications indicated on the
ASR and failure to post the ASR number on or near the base of
the antenna structure. On September 13, 2000, the U.S. Postal
Service returned the NOV to the Denver Office with the
notation ``Not Deliverable as Addressed - Return to Sender.''
On September 14, 2000, an agent from the Denver Office
contacted Rio Grande by telephone and learned that the address
of record for Rio Grande on file with the Commission was no
longer current and that Rio Grande had not updated its
ownership information to reflect the new address. On
September 21, 2000, the Denver Office issued a second NOV to
Rio Grande for failure to notify the Commission of its new
address using FCC Form 854, and resent the September 6, 2000
NOV.
5. On October 27, 2000, the Denver Office received a
response to the NOVs from Broadwing. The response stated that
the ASR number had been posted at the base of the antenna
structure. In addition, the response stated that painting and
lighting of the tower were no longer required because Rio
Grande had removed the uppermost antenna from the top of the
tower in October 2000, bringing the height of the structure to
less than 200 feet. On October 30, 2000, Broadwing sent to
the Denver Office a follow-up response providing pictures of
the tower before and after removal of the top antenna and
again stating that no painting or lighting of the structure
was required because the structure was now 195 feet in height.
6. On April 26, 2001, the Denver Office issued an NAL for
a forfeiture in the amount of $13,000 to Rio Grande for
failure to paint and light the antenna structure in willful
violation of Section 303(q) of the Act and Section 17.23 of
the Rules and failure to notify the Commission immediately
using FCC Form 854 of a change in the height of the antenna
structure in willful violation of Section 17.57 of the Rules.
Having received a satisfactory response, the Denver Office did
not include the other violations cited in the NOVs in the NAL.
The Commission received a response to the NAL from Broadwing
on June 4, 2001.5 Although Broadwing states that it ``does
not take issue with nor disagree with the facts relied on by
the Commission as a basis for assessing the forfeiture,'' it
requests rescission of the $13,000 forfeiture. Broadwing
states that it recently sold the majority of the assets of six
microwave companies that it owned at the time the NAL was
issued, including all 197 of the microwave towers owned by
these companies.6 Therefore, Broadwing asserts that the
forfeiture will not serve the purpose of ensuring that such
violations do not reoccur in the future. Broadwing also asks
that the Commission take into account its past record of
compliance with respect to the 197 towers it owned, asserting
that the Commission has never assessed a forfeiture against
Broadwing in connection with its operation of these towers.
III. DISCUSSION
7. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act,7 Section 1.80 of
the Rules, 8 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
Broadwing'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.9
8. Section 303(q) of the Act requires antenna structure
owners to maintain painting and lighting of antenna structures
as prescribed by the Commission. Section 17.23 of the Rules
requires antenna structures to conform with the FAA's painting
and lighting specifications. The ASR for the Apache Springs
tower indicated that the painting and lighting were to comply
with Chapters 3, 4, 5 and 9 of FAA Advisory Circular 70/7460-
1G. Section 17.57 of the Rules requires the owner of an
antenna structure to notify the Commission immediately using
FCC Form 854 upon any change in structure height. Broadwing
does not dispute the facts of this case as set forth in the
NAL. Accordingly, we find that Rio Grande willfully violated
Sections 303(q) of the Act and Sections 17.23 and 17.57 of the
Rules.10
9. We disagree with Broadwing's assertion that the
forfeiture should be rescinded because Broadwing has sold all
of its towers and the forfeiture therefore will not serve the
purpose of ensuring that such violations do not reoccur in the
future. In the Policy Statement, we noted that the
legislative history of Section 503 of the Act demonstrates
that Congress intended that forfeitures serve as both a
meaningful sanction to wrongdoers and a deterrent to other
potential violators.11 We believe that imposition of the
forfeiture in this case serves both of these important
purposes.
10. Broadwing also asks that we take into account its past
record of compliance with respect to the 197 towers it owned,
asserting that we have never assessed a forfeiture against
Broadwing in connection with its operation of these towers. A
search of our records indicates that the Enforcement Bureau
issued at least six other NOVs to Broadwing and its subsidiary
companies for tower-related violations between June 21, 2000
and March 21, 2001.12 These violations by Broadwing and its
subsidiaries are part of Broadwing's violation record. See,
e.g., Mega Communications of St. Petersburg, Licensee, Inc.,
DA 01-2036 (Enf. Bur., released August 31, 2001); KGNT, Inc.,
16 FCC Rcd 4656 (Enf. Bur., 2001); Capstar Limited
Partnership, 16 FCC Rcd 901(Enf. Bur., 2001). Broadwing's
past violation record precludes a determination that it has a
history of overall compliance with the Commission's Rules.
See, e.g., Crown Communications, Inc., 15 FCC Rcd 21937 (Enf.
Bur., 2000).
11. We have examined Broadwing's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Policy Statement as well. As a result of our review,
we conclude that Broadwing has failed to provide sufficient
justification for canceling or mitigating the proposed
forfeiture amount. Therefore, we affirm the forfeiture of
thirteen thousand dollars ($13,000).
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,13 Rio Grande Transmission, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of thirteen thousand dollars
($13,000) for willful violations of Section 303(q) of the Act
and Sections 17.23 and 17.57 of the Rules.
13. 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.14 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. 20554.15
14. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to
Broadwing Communications Services, Inc., 1122 Capital of Texas
Highway South, Austin, Texas 78746-6426, Attn: Larry D.
Barnes.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 303(q).
2 47 C.F.R. §§ 17.23 and 17.57.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132800001 (Enf. Bur., Denver Office, released April 26, 2001).
4 Subsequent to the dates of the violations at issue in this
proceeding, Broadwing Communications Services, Inc., the parent
company of Rio Grande Transmission, Inc., sold the Apache Springs
antenna structure to LB Tower Company, LLC.
5 Broadwing's response to the NAL was untimely. See 47 C.F.R.
§ 1.80(f)(3). Nevertheless, we address herein the arguments
raised in the response.
6 In addition to Rio Grande, Broadwing was the parent company
of West Texas Microwave Company, Tower Transmission Systems
Corporation, Atlantic States Microwave Transmission Company,
Central States Microwave Transmission Company, and Western States
Microwave Transmission Company.
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
10 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
....'' 47 U.S.C. § 312(f)(1). 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).
11 12 FCC Rcd at 17096-97 (citing Sen. Rep. No. 95-580 at
3 (1977), reprinted in 1978 U.S.C.C.A.N. at 109, and H.R. Conf.
Rep. 101-386 at 435 (1989), reprinted in 1989 U.S.C.C.A.N. at
3018).
12 The Kansas City Field Office issued NOVs to Central States
Microwave Transmission Company on June 21, 2000 (for violation of
Section 17.4 of the Rules); on January 19, 2001 (for violation of
Section 17.48 of the Rules); and on January 23, 2001 (for
violation of Section 17.48 of the Rules). The Kansas City Field
Office issued two separate NOVs to Broadwing on September 27,
2000 (both for violations of Sections 17.4 and 17.57 of the
Rules). The Denver Field Office issued an NOV to Rio Grande on
March 21, 2001 (for violation of Section 17.57 of the Rules).
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.