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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AT&T Wireless Services, Inc. ) File Number EB-
00-SF-671
1150 Connecticut Avenue, N.W. )
4th Floor )
Washington, D.C. 20036 ) NAL/Acct. No.
20013276001
FORFEITURE ORDER
Adopted: March 16, 2001 Released: March
19, 2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of fourteen thousand
dollars ($14,000) against AT&T Wireless Services, Inc.
(``AT&T Wireless'') for willfully and repeatedly violating
Section 17.4(g) of the Commission's Rules (``Rules'').1 The
noted violations involve AT&T Wireless's failure to post
antenna structure registration (``ASR'') numbers at the base
of several of its antenna structures.
2. On January 16, 2001, the Chief, Enforcement
Bureau, issued a Notice of Apparent Liability (``NAL'') for
Forfeiture in the amount of eighteen thousand dollars
($18,000).2 AT&T Wireless filed a response on February 14,
2001.
II. BACKGROUND
3. During routine inspections of AT&T Wireless's
antenna structures, from April 20, 2000, to December 7,
2000, agents from several of the Enforcement Bureau's Field
Offices found nine antenna structures that did not have ASR
numbers posted as required.
III. DISCUSSION
4. AT&T Wireless does not contest that nine of its
antenna structures did not have their ASR numbers properly
posted as set forth in Section 17.4(g) of the Rules.
Instead, AT&T Wireless challenges the selection of $2,000 as
the base forfeiture amount for a violation of Section
17.4(g) of the Rules, contends that it did not have to
register two of its antenna structures, and raises several
factors in mitigation of its violations.
5. As an initial matter, AT&T Wireless argues that
the base forfeiture amount for failure to post an ASR number
should be $1,000, not $2,000. The Bureau's proposed
forfeiture was based on the Commission's decision in
American Tower Corp.,3 in which it determined that a $2,000
base forfeiture amount was appropriate for this type of
violation.4 As the Bureau is bound by the Commission's
determination, we will not address AT&T Wireless's argument
in this case.
6. AT&T Wireless argues, for the first time, that it
had voluntarily registered two of its antenna structures
located in Glenallen, Alaska and Denver, Colorado (i.e., the
antenna structures did not meet the Federal Aviation
Administration's notification requirement).5 Since it was
not required to register these antenna structures, AT&T
Wireless argues that we should not fine it for failing to
post the antenna structure registration numbers. We agree.
7. After reviewing the coordinates, height, and type
of AT&T Wireless's Glenallen and Denver antenna structures
and noting that the Federal Aviation Administration issued
``no hazard'' determinations for both, we conclude that AT&T
Wireless was not required to register the two antenna
structures. Therefore, in this case, we will reduce the
proposed forfeiture by $4,000.
8. We find that AT&T Wireless's remaining arguments
in support of reduction of the proposed forfeiture lack
merit. First, AT&T Wireless argues that out of its
``thousands of towers,'' Commission agents ``apparently
uncovered a very small percentage of non-compliance . . .
.''6 Furthermore, AT&T Wireless claims that, given its
corporate compliance program, allegedly in place for close
to five years prior to our issuance of the NAL, and the lack
of what AT&T Wireless characterizes as safety-related
infractions, we should conclude that the ASR number posting
violations are ``minor.'' We are not persuaded. In
American Tower Corp., the Commission discussed the potential
impact on public safety that an ASR number violation might
have.7 In addition, despite its allegedly long-standing
corporate compliance program, from April of 2000, the time
that we first notified AT&T Wireless that it was violating
Section 17.4(g) of the Rules, our agents found six other
violations (not counting the Glenallen and Denver antenna
structures) of the same rule, the last of which occurred
more than one-half year later in December of 2000. These
repeated violations of safety rules are not minor.8
9. AT&T Wireless also contends that we should reduce
the proposed forfeiture ``because there can be many reasons
why a previously-posted ASRN is `missing' when an inspection
occurs, including vandalism and weather.''9 AT&T Wireless
argues that we cannot find that it willfully violated
Section 17.4(g) of the Rules without ruling out the
possibility that the violations resulted from vandalism and
weather, and argues that we should credit it for allegedly
initially complying with the rule. AT&T Wireless, however,
presents no evidence that either vandalism or weather or
both played a part in the missing ASR numbers. Moreover,
while conceding that an ``ASRN registrant should
periodically monitor its ASRN postings to learn of those
that are missing,''10 AT&T Wireless proffers no evidence of
its inspection regime (i.e., when it posted the ASR numbers
and when it last inspected them). Indeed, AT&T Wireless
admits that it does not have records to support its
assertions that its employees posted the ASR numbers in
conformance with the Commission's Rules and its corporate
compliance plan.11
10. After reviewing the record in this case, we
conclude that no further reduction of the proposed
forfeiture is warranted. In conclusion, after reviewing
Section 503(b)(2)(D) of the Communications Act of 1934
(``Act''),12 as amended, Section 1.80 of the Rules,13 the
facts, and AT&T Wireless' opposition to the NAL, we believe
that a $14,000 forfeiture is appropriate.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act, as amended,14 and Sections 0.111,
0.311, and 1.80(f)(4) of the Rules,15 AT&T Wireless IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $14,000
for willfully and repeatedly violating Section 17.4(g) of
the Rules requiring it to post ASR numbers at the base of
its antenna structures.16
12. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules,17 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.18 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. 20013276001 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. 20554.19
13. IT IS FURTHER ORDERED that copies of this Order
shall be sent by Certified Mail Return Receipt Requested to
AT&T Wireless Services, Inc., 1150 Connecticut Avenue, N.W.,
Washington, D.C. 20036, and to its counsel, Howard J.
Symons, Esq., Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C., 701 Pennsylvania Avenue, N.W., Suite 900, Washington,
D.C. 20004.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.4(g).
2 Notice of Apparent Liability for Forfeiture, DA 01-87
(Enf. Bur., rel. Jan. 16, 2001).
3 American Tower Corp., FCC 01-9 (rel. Jan. 16, 2001).
4 Id. at ¶ 9.
5 See 47 C.F.R. § 17.7. AT&T Wireless made no mention
of this argument in its responses to the Notices of
Violation regarding the Glenallen and Denver antenna
structures.
6 AT&T Wireless Opposition to Notice of Apparent
Liability for Forfeiture at 4 (filed Feb. 14, 2001).
7 American Tower Corp., at ¶ 9.
8 Of course, the violations are ``minor'' in the sense
that they are less serious than violations that would result
in a higher forfeiture (e.g., failure to light or mark a
tower as required). But they are not minor in the sense
that AT&T Wireless suggests, i.e., no forfeiture at all is
appropriate.
9 AT&T Wireless Opposition to Notice of Apparent
Liability for Forfeiture at 5.
10 Id. at 5 n.8.
11 Id.
12 47 U.S.C. § 503(b)(2)(D).
13 47 C.F.R. § 1.80.
14 47 U.S.C. § 503(b).
15 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
16 47 C.F.R. § 17.4(g).
17 47 C.F.R. § 1.80.
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.