******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

                                                       
In the matter of                 )
                                )
Tidewater Communications, Inc.   )    File Number EB-01-NF-276
Owner of Antenna Structure No.   )    NAL/Acct. No. 200232640001
1028287                          )    FRN: 0003-3044-90
Chesapeake, Virginia 23320


                        FORFEITURE ORDER

   Adopted:  May 9, 2002                     Released:  May 13, 
2002 

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) to 
  Tidewater Communications, Inc. (``Tidewater'') for willful 
  violation of Section 17.51(a) of the Commission's Rules 
  (``Rules'').1  The noted violation involves Tidewater's 
  failure to exhibit lighting on its Windsor, Virginia antenna 
  structure.
2.   On December 12, 2001, the Commission's Norfolk, Virginia 
  Resident Agent Office (``Norfolk Office'') issued a Notice of 
  Apparent Liability for Forfeiture (``NAL''),2 finding 
  Tidewater apparently liable for a forfeiture in the amount of 
  $10,000 for willful violation of Section 17.51(a) of the 
  Rules.  On January 11, 2002, Tidewater filed a response.

                           II.  BACKGROUND
3.   On November 6, 2001, the Norfolk Office received information 
  originating from a Navy pilot's report that there was an unlit 
  antenna structure in Windsor, Virginia.  After confirming this 
  report by visual inspection on the same day, a Resident Agent 
  from the Norfolk Office ascertained that the antenna 
  structure, Antenna Structure Registration (``ASR'') Number 
  1028287, belonged to Tidewater.
4.   On November 16, 2001, the Norfolk Office issued a Notice of 
  Violation (``NOV'') to Tidewater.  First, the NOV cited 
  apparent violation of Section 17.51(a) of the Rules, which 
  requires an owner to exhibit red obstruction lighting.  
  Second, it cited apparent violation of Section 17.47(a) of the 
  Rules, 3 which requires an owner to (1) observe antenna 
  structure lights at least once every 24 hours either visually 
  or by an automatic indicator of lighting failure, or (2) 
  provide a properly maintained automatic alarm system 
  indicating lighting failure.  On November 30, 2001, Tidewater 
  filed a response to the NOV.

5.        On December 12, 2001, the Norfolk Office issued an NAL 
  for the Section 17.51(a) violation.  In its January 11, 2002 
  response to the NAL, Tidewater states that, pursuant to 
  Section 17.47(a) of the Rules, it observes the antenna 
  structure's lights at least once every 24 hours by means of an 
  automatic light system, that includes an alarm.  Tidewater 
  notes that, after being notified of the lighting failure by 
  telephone from the Resident Agent, it found that the alarm did 
  not indicate an outage of the lighting and that the alarm 
  itself did not otherwise appear to be malfunctioning.  
  Tidewater further explains that its retained independent 
  contractor subsequently found and repaired several system 
  components, accounting for both the failure of the lighting 
  and the failure of the alarm system. 
6.   Tidewater argues that the failure of the alarm system does 
  not show willful violation of Section 17.51(a) of the Rules in 
  the sense of a conscious or deliberate commission or omission 
  of an act, but rather shows inadvertence.  Tidewater cites 
  Vernon Broadcasting,4 in which the Commission canceled a 
  forfeiture for a fencing violation because there was no 
  indication that the licensee was aware of the violation or had 
  failed to monitor the condition of the site prior to the 
  Commission's inspection.  Tidewater also submits that there is 
  no probative and acceptable evidence that the violation was 
  repeated apart from the one day that the Navy pilot and the 
  Norfolk Office Resident Agent observed the antenna structure 
  on November, 6, 2001.  Finally, Tidewater maintains that 
  imposition of the base amount forfeiture of $10,000 for this 
  type of violation under Section 1.80(b)(4)5 is too high and 
  claims that the Norfolk Office did not consider its good faith 
  or voluntary disclosure, and its history of overall 
  compliance. 

                           III. DISCUSSION
7.   The forfeiture amount in this case was assessed in 
  accordance with Section 503(b) of the Communications Act of 
  1934, as amended (``Act''),6 Section 1.80 of the Rules,7 and 
  The Commission's Forfeiture Policy Statement and Amendment of 
  Section 1.80 of the Rules to Incorporate the Forfeiture 
  Guidelines.8  In examining Tidewater'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.   Tidewater does not contest that the antenna structure lights 
  were unlit on November 6, 2001.  Rather, it argues that the 
  outage was not willful because its automatic light system and 
  alarm malfunctioned and therefore failed to indicate that the 
  outage had occurred.  Pursuant to Section 17.47(a)(1) of the 
  Rules, an owner is required to observe the antenna structure's 
  lights at least once every 24 hours either visually or by 
  observing a properly maintained automatic indicator that 
  registers any failure of the lights; or, pursuant to Section 
  17.47(a)(2) of the Rules, an owner is required to provide a 
  properly maintained automatic alarm system designed to detect 
  any failure of the lights and to provide indication of such 
  failure to the owner. 
9.   Tidewater presents no evidence, or even claims, that it has 
  ever inspected its automatic light system and alarm equipment 
  prior to the light outage and the tower inspection by the 
  Norfolk Office.  Moreover, contrary to its intentions, 
  Tidewater's reliance on Vernon Broadcasting is unavailing, 
  because there the damage to the antenna structure fencing 
  occurred shortly after the owner had last inspected the 
  facility and just prior to the Commission's inspection that 
  detected the violation.10 Accordingly, we reject Tidewater's 
  argument that the lighting outage was not willful due to the 
  failure of its automatic light system and alarm.11
10.  Tidewater's claim that there is no showing of repeated 
  violations beyond the single day the outage was observed is 
  immaterial.  The NAL alleged that Tidewater's act was willful 
  and did not reach the question of whether it was repeated. 
11.  Finally, Tidewater's argument that the forfeiture should at 
  least be reduced is not persuasive.  The base forfeiture 
  amount for this violation is $10,000.12  Tidewater presents no 
  showing of good faith beyond what we have already considered 
  as inadequate to overcome a finding of willfulness.  
  Furthermore, the only indication of voluntary disclosure 
  occurred after the outage was detected.  Moreover, Tidewater 
  does not have a history of overall compliance with the 
  Commission's Rules.13  Consequently, in this case, we will 
  impose the originally proposed forfeiture of $10,000.
                        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,14 Tidewater Communications, Inc, IS LIABLE FOR A 
  MONETARY FORFEITURE in the amount of ten thousand dollars 
  ($10,000) for failure to exhibit obstruction lighting on its 
  antenna structure in willful violation of Section 17.51(a) 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.15  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 reference NAL/Acct. No. 200232640001 and FRN 
  0003-3044-90.  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. 20554.1614.  IT IS FURTHER ORDERED that, a copy of this Order shall be 
  sent by Certified Mail - Return Receipt Requested - to 
  Tidewater Communications, Inc., 870 Greenbrier Circle, Suite 
  399 Chesapeake, Virginia, 23320, and to its counsel, Gary S. 
  Smithwick, Esq., Smithwick & Belendiuk, P.C., 5028 Wisconsin 
  Avenue, N.W., Suite 301, Washington, D.C. 20016.

                         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. 
200232640001 (Enf. Bur., Norfolk Office, rel. Dec. 12, 2001). 
3  47 C.F.R. § 17.47(a).
4 Vernon Broadcasting, Inc., 60 RR 2d 1275 (1986). 
5  47 C.F.R. § 1.80(b)(4). 
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
9 47 U.S.C. § 503(b)(2)(D).
10 The Commission found the violation was not willful because the 
licensee monitored  the condition  of  the antenna  site  through 
regular inspections, and  to the extent  that the licensee  found 
the fence to be  in good condition during  its inspection of  the 
antenna  site  shortly  before  the  Commission  inspection,  the 
licensee was unaware of the violation.   
11  See Eure Family Limited  Partnership, 16 FCC Rcd 21302  (Enf. 
Bur. 2001); recon. denied, DA 02-878, rel. April 17, 2002.
12  See  47  C.F.R.  §  1.80(b)(4),  Note  to  Paragraph  (b)(4): 
Guidelines for Assessing Forfeitures.
13 See Tidewater Communications, 11  FCC Rcd 7814 (1996);  recon. 
denied, 12 FCC Rcd 11830 (1997).
14 47 C.F.R. §§  0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.