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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
SpectraSite Communications, Inc.) File No. EB-01-TP-157
)
Cary, North Carolina ) NAL/Acct. No. 200132700006
)
)
FORFEITURE ORDER
Adopted: October 1, 2001 Released: October
3, 2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) against SpectraSite Communications, Inc.
(``SpectraSite'') for willful violation of Section 17.51(a) of
the Commission's Rules (``Rules'').1 The violation involved
SpectraSite's failure to exhibit red obstruction lighting from
sunset to sunrise, in accordance with Section 17.51(a) of the
Rules.
II. BACKGROUND
2. On April 5, 2001, at approximately 8:30 p.m., two
agents from the Commission's Tampa, Florida Field Office (``Tampa
Office'') observed an unlighted tower on Interstate 75 near
Ocala, Florida. Further investigation revealed that the tower
was required to be lighted and that it was owned by SpectraSite.
On April 25, 2001, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to SpectraSite for $10,000.2
On May 24, 2001, SpectraSite filed a response to the NAL. In its
response, SpectraSite requests reduction of the forfeiture
amount. SpectraSite does not dispute that the violation
occurred, but argues that the violation was not willful or
repeated.3 SpectraSite explains that it monitors the lighting of
the Ocala tower through its contractor, a monitoring service.
SpectraSite further explains that its monitoring service had
received approximately six periodic indications of an obstruction
light outage in the several days prior to April 5, 2001. In each
instance, there were subsequent indications that the obstruction
lighting was functioning properly. SpectraSite acknowledges that
this type of signal pattern indicated a potential for
malfunctioning equipment, but asserts that its monitoring service
did not interpret the pattern as an obstruction lighting outage.
Further, SpectraSite contends that it corrected the outage within
two days of receiving the NAL.
III. DISCUSSION
3. Section 17.51(a) of the Rules requires that all red
obstruction lighting be exhibited from sunset to
sunrise unless otherwise specified. When the red
obstruction lighting on SpectraSite's tower was not
exhibited at 8:30 p.m. on April 5, 2001, this was a
violation of Section 17.51(a) of the Rules.
4. Section 17.47 of the Rules4 provides that owners of
antenna structures which are registered with the
Commission and which have been assigned lighting
specifications shall make a visual observation every 24
hours of the antenna structure's lights, or observe an
automatic properly maintained indicator designed to
register any failure of such lights, to insure that all
such lights are functioning properly. Alternatively,
antenna structure owners may provide and properly
maintain an automatic alarm system designed to detect
any failure of such lights and to provide indication of
such failure to the owner. SpectraSite chose to employ
a monitoring service which would monitor its tower
lighting and notify it of any outages, which is
permissible under the Rules. SpectraSite states that
the electronic monitoring device utilized by its
monitoring service indicated approximately six periodic
light outages in the several days prior to April 5,
2001, the date the agents observed the light outage.
As SpectraSite concedes, this signal pattern indicated
a potential for malfunctioning equipment.
SpectraSite's violation of Section 17.51(a) of the
Rules was willful5 because, even though its monitoring
service had approximately six indications of
obstruction light outages, its monitoring service
failed to visually inspect the tower lights to insure
that they were functioning properly. The Commission
has long held that licensees and other Commission
regulatees are responsible for the acts and omissions
of their employees and independent contractors.6 Thus,
SpectraSite is responsible for the acts and omissions
of its monitoring service. Finally, although
SpectraSite took expedient measures to correct the
violation, its remedial actions, while commendable, are
not a mitigating factor.7
IV. ORDERING CLAUSES
5. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended (``Act''),8
and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,9
SpectraSite Communications, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of ten thousand dollars ($10,000) for
violating Section 17.51(a) of the Rules by failing to exhibit red
obstruction lighting from sunset to sunrise on April 5, 2001.
6. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules,10 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.11 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
NAL/Acct. No. 200132700006. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.12
7. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail, Return Receipt Requested to
SpectraSite Communications, Inc., 100 Regency Forest Drive, Cary,
North Carolina 27511, and its counsel M. Anne Swanson, Esq. at
Dow Lohnes & Albertson, 1200 New Hampshire Avenue, Suite 800,
Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.51(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132700006 (Enf. Bur., Tampa Office, released April 25, 2001).
3 The NAL did not state that SpectraSite's violation was
repeated. Therefore, the issue of whether the violation was
repeated will not be addressed here.
4 47 C.F.R. § 17.47.
5 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).
6 See, e.g., Netcom Technologies, Inc., 16 FCC Rcd 9524, 9526
(Enf. Bur. 2001); MTD, Inc., 6 FCC Rcd 34, 35 (1991); Wagenvoord
Broadcasting Co., 35 FCC 2d 361 (1972).
7 E.g., Puerto Rico Tower Co., Inc., 16 FCC Rcd 271, 273
(Enf. Bur. 2001); Crown Communications, Inc., 15 FCC Rcd 21937,
21939 (Enf. Bur. 2000) (both citing Station KGVL, Inc., 42 FCC 2d
258, 259 (1973).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 C.F.R. § 1.80.
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.