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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-01-SJ-
077
)
VELOCITEL TOWERS, INC. ) NAL/Acct. No. 200232680001
F/k/a TowerCel, Inc. )
)
Antenna Structure Registration: 1221688 ) FRN 0005-7959-35
)
FORFEITURE ORDER
Adopted: February 6, 2002 Released: February 8,
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) against VelociTel Towers, Inc. (``VelociTel'') for
willful violations of Section 17.51(b) of the Commission's Rules
(``the Rules'').1 The noted violations involve VelociTel's
failure to exhibit the required medium intensity obstruction
lighting at an antenna tower.
2. On October 3, 2001, the Enforcement Bureau released a
Notice of Apparent Liability for Forfeiture (``NAL'') against
VelociTel in the amount of $20,000.2 VelociTel filed its
response to the NAL on November 2, 2001.
II. Background
3. VelociTel owns an antenna structure (ASR # 1221688)
located in Juncos, Puerto Rico. On August 2, 3 and 8, 2001, an
agent from the Commission's San Juan, Puerto Rico, Resident Agent
Office (``San Juan'') observed that VelociTel did not exhibit
medium intensity obstruction lighting at that antenna structure.
The agent determined by consulting data bases that VelociTel is
required to exhibit medium intensity obstruction lighting at that
antenna tower.
4. In its August 23, 2001, response to a Notice of
Violation (``NOV'') issued by San Juan on August 14, 2001,
VelociTel stated that it would have the tower lighting repaired
by September 7, 2001. On October 3, 2001, San Juan released the
captioned NAL against VelociTel in the amount of $20,000 for
violation of Section 17.51(b) of the Rules. The NAL proposed a
$20,000 forfeiture rather the $10,000 base amount for lighting
violations3 on the basis of VelociTel's history of noncompliance
with the Commission's Rules, as evidenced by an NOV issued to
VelociTel on March 19, 2001, for another of its towers.4
5. In its November 2, 2001, response to the NAL, VelociTel
admits the violations but argues that the proposed forfeiture
should be remitted or mitigated to no more than $10,000.
VelociTel asserts that its prompt remedial action demonstrates
``good faith or voluntary disclosure''; that it plans to invest
at least $20,000 in an automatic alarm system designed to detect
lighting outages; that the resources available for rapid
deployment of an automatic alarm system will be reduced if
VelociTel must pay the full forfeiture amount; and that investing
in safety is a better use for ``scarce resources'' than payment
of a forfeiture.
III. Discussion
6. The Enforcement Bureau assessed the proposed forfeiture
amount in this case in accordance with Section 503 of the
Communications Act of 1934, as amended (``Act''),5 Section 1.80
of the Rules,6 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''). Section 503(b) of the
Act7 requires that, in examining VelociTel's response, 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.8
7. Section 17.51(b) of the Rules requires that medium
intensity obstruction lighting be continuously exhibited upon
antenna structures. It is undisputed that VelociTel did not
comply with this rule.
8. We do not agree with VeociTel's arguments for mitigating
the forfeiture amount for its violations of Section 17.51(b).
Remedial action taken by a licensee after notification of a
violation -- such as the action already taken by VelociTel and
VelociTel's planned deployment of an automatic alarm system --
does not mitigate the forfeiture. See generally KGVL, Inc., 42
FCC 2d 258, 259 (1973). VelociTel's argument that payment of the
full forfeiture amount would reduce the funds available for
deployment of an automatic alarm system is not relevant.
VelociTel does not claim that it is unable to pay the full
forfeiture amount; indeed, such a claim would require supporting
finnacial information, which VelociTel did not provide.
9. We find, however, upon review of the facts regarding the
violations, that a reduction of the forfeiture amount to $10,000
is warranted.
IV. Ordering Clauses
10. 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,9 VelociTel IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $10,000 for willful violation of the provisions of
17.51(b) of the Rules.
11. 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. 200232680001 and FRN 0005-7959-35. 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
12. IT IS FURTHER ORDERED THAT this Order shall be sent,
by certified mail, return receipt requested, to Christopher G.
Wood, Esq., Fleischman and Walsh, L.L.P., at 1400 16th Street,
N.W., Washington, D.C. 20036.
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.
200132680001 (Enf. Bur., San Juan Office, released October 3,
2001).
3 See 47 C.F.R. § 1.80(b)(4).
4 See 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503.
6 47 C.F.R. § 1.80.
77 47 U.S.C. § 503(b).
88 47 U.S.C. § 503(b)(2)(D).
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.