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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Florida Power and Light Company ) File Number EB-01-TP-371
9250 West Flagler Street )
Miami, FL 33174 ) NAL/Acct. No. 20023270004
)
Antenna Structure Registration 1061028 ) FRN Number 0001-
8253-14
)
Miami, FL 33174 )
FORFEITURE ORDER
Adopted: April 23, 2002 Released: April
25, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000) to Florida Power and Light Company (``Florida
Power'') for willful violation of Section 17.51(a) of the
Commission's Rules (``Rules'').1 The noted violation involves
Florida Power's failure to exhibit all red obstruction
lighting on its Palm Bay, Florida antenna structure between
sunset and sunrise.
2. On January 8, 2002, the Commission's Tampa, Florida
Field Office (``Tampa Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of ten
thousand dollars ($10,000) to Florida Power for the noted
violation.2 Florida Power filed a response to the NAL on
January 28, 2002.
II. BACKGROUND
3. On September 12, 2001, the Commission's Tampa Office
received a complaint regarding a lighting problem on an
antenna structure with antenna structure registration
(``ASR'') number 1061028, in Palm Bay, Florida. The
complainant alleged that the lighting problem had existed for
approximately one year and that on several occasions, he had
attempted to contact the tower owner but was unable to
satisfactorily resolve the problem. The FCC's ASR database
confirmed that Florida Power was the owner of the tower
assigned ASR number 1061028 and located in Palm Bay. The same
day, the Tampa Office contacted Florida Power to determine the
status of the lights on the antenna structure. On September
13, 2001, Mr. Michael Lawler of Florida Power left a telephone
message that the Palm Bay tower lights had been repaired the
previous evening. On October 29, 2001, the Tampa Office
received another complaint regarding the lighting problem on
the Palm Bay antenna structure. The complainant alleged that
the red strobe tubes had been removed due to interference and
that for the last several months, white daylights were
flashing 24 hours a day and the obstruction lights were on
constantly.
4. On October 30, 2001, the Tampa Office contacted the
Federal Aviation Administration (``FAA'') and was notified
that a Notice to Airmen (``NOTAM'') had not been issued for
the antenna structure. FCC Form 854, ``FCC Application for
Antenna Structure,'' for Florida Power indicates that the Palm
Bay antenna structure is to exhibit red obstruction lights
from sunset to sunrise. The Tampa Office made another attempt
to contact Mr. Lawler. Mr. Lawler's voicemail message
indicated that he would be out of the office until October 31,
2001. The Tampa Office then called the person listed on FCC
Form 854, Mr. Tony Padilla. Mr. Padilla stated that he would
investigate and provide the status of the lights and lighting
specifications for the structure. On November 9, 2001, the
Tampa Office left a voicemail message for both Lawler and
Padilla requesting the status of the lights on the antenna
structure. No response was received.3
5. On November 19, 2001, the FAA confirmed that a NOTAM
still had not been issued for the antenna structure. The FAA
also confirmed that the lighting specifications for the
antenna structure are medium white strobe lights during the
day and red lights at night. On November 27, 2001, agents
from the Tampa Office performed an inspection of the antenna
structure site. The agents observed the structure at
approximately 4:25 P.M. During the inspection, the agents
observed flashing strobe lighting at the top and middle of the
structure. The agents also observed red sidelights, and red
beacons installed at the middle and top of the structure. The
agents returned to the site on November 27, 2001 after sunset
at approximately 6:00 P.M. The agents noted that the only red
lights illuminated were at the 2/3 level sidelights. A white
light was flashing at the top. In the middle of the
structure, a white light was flashing only on the south side
of the structure. No red beacons were lit in the middle of
the structure. The red sidelights at the 1/3 level were not
lit.
6. On January 8, 2002, the Tampa Office issued an NAL in
the amount of $10,000 to Florida Power for failure to properly
exhibit red obstruction lights between sunset and sunrise on
the Palm Bay antenna structure in willful violation of Section
17.51(a) of the Rules. The Tampa Office also found that
Florida Power did not notify the FAA of the tower lighting
malfunctions. In its response to the NAL, Florida Power
acknowledges the violation, but argues that it has taken
substantial and swift actions to have the lighting repaired on
its Palm Bay tower, and therefore, the forfeiture should be
rescinded or reduced. Florida Power indicates that upon
receipt of each of the complaints from the Tampa Office in
September 2001 and October 2001, it immediately dispatched
personnel to repair the antenna structure's lighting system.
Florida Power asserts, however, that damage may have occurred
to the lighting system after each repair and caused the lights
to malfunction. Specifically, Florida Power speculates that
``subsequent malfunctions may have been caused by repeated
lightning strikes that damaged critical components, which may
have led to a failure of the automatic monitoring system to
alert Florida Power personnel.'' Florida Power states that in
January 14, 2002,4 it contacted the FAA to report that the
lights were malfunctioning on its Palm Bay tower. According
to Florida Power, a NOTAM was issued, and Florida Power
technicians investigated and resolved the tower lighting
issue. Florida Power claims to have subsequently examined the
circuitry for the automatic monitoring system and improved
operations.
7. Florida Power contends that at no time was its antenna
structure ever a ``dark tower''. Specifically, Flower Power
asserts that at all times, lights were illuminated on its
antenna structure, although they may not have been operating
in the proper mode. After investigation and repair of the
tower's lighting, argues Florida Power, it will now cycle
properly from daytime to nighttime operation at the
appropriate times. Moreover, Florida Power claims that in
addition to repairing its antenna structure, it has also
improved its antenna structure monitoring and record keeping
procedures to guard against future mishaps. Florida Power
also questions the accuracy of the complaints received by the
Commission. Specifically, Florida Power states that although
it cannot identify precisely when the tower lights began to
malfunction, it does not believe the problem existed for the
length of time alleged in the complaint. Also, Florida Power
claims that contrary to the complaint, it never removed the
red strobe tubes from the tower. Florida Power contends that
in view of the corrective measures taken to repair the tower
lighting system, the enhancements it has made to guard against
future tower lighting failures, and its history of overall
compliance, the proposed forfeiture should be cancelled or
significantly reduced. Florida Power states that in cases
where towers have fallen ``completely dark'', the Commission
has reduced proposed forfeitures on the basis of a company's
history of compliance with the Commission's rules.5 Florida
Power contends that in this case, its tower was not dark.
Rather, Florida Power states that the tower was lit so that
aircraft could see it after sunset.
III. DISCUSSION
8. 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, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999). In examining Florida Power'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.8
9. Section 17.51(a) of the Rules provides that all red
obstruction lighting must be exhibited from sunset to sunrise
unless otherwise specified in the ASR (emphasis added).
Florida Power acknowledges that some of the red obstruction
lights on its Palm Bay tower malfunctioned. The accuracy of
the complaints is not at issue here. Section 1.80(b)(4) of
the Rules prescribes a base forfeiture amount of $10,000 for
this violation. Florida Power argues, however, that the
forfeiture amount should be rescinded or reduced in light of
its immediate actions to repair the lighting on the tower and
the enhancements it has made to guard against future tower
lighting failures. We disagree. Florida Power's remedial
efforts to correct the violation, while commendable, are not a
mitigating factor. See Station KGVL, Inc., 42 FCC 2d 258, 259
(1973). In addition, although Florida Power asserts that it
investigated and repaired the tower's lighting system in
January 2002,9 it is undisputed that at the time of the
November 27, 2001 inspection, it violated Section 17.51(a) of
the Rules by failing to properly exhibit red obstruction
lights between sunset and sunrise.
10. Further, to the extent that lightning strikes may have
caused subsequent malfunctions of the tower's lighting system
and automatic alarm system after each repair, and thus,
Florida Power did not receive alerts to timely repair the
damage, we do not believe that this warrants mitigation of the
forfeiture amount. Section 17.47 of the Rules requires
antenna structure owners registered with the Commission and
subject to lighting specifications to make an observation of
the antenna structure's lights at least once every 24 hours
either visually or by observing an automatic properly
maintained indicator designed to register any failure of such
lights, to insure the proper functioning of the antenna
structure's lights.10 Alternatively, antenna structure owners
are required to ``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''.11 It
does not appear from the record before us that Florida Power
made daily observations of its Palm Bay tower, nor does
Florida Power present any evidence that it had properly
inspected or maintained its automatic alarm systems, which
would have led it to discover the lighting violations.
Finally, Florida Power argues that we should consider its
history of overall compliance with the Rules. We will do so
and reduce the $10,000 forfeiture to $8,000.
IV. ORDERING CLAUSES
11. 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,12 Florida Power IS LIABLE FOR A MONETARY FORFEITURE
in the amount of eight thousand dollars ($8,000) for failure
to properly exhibit red obstruction lighting between sunset
and sunrise on its antenna structure in willful violation of
Section 17.51(a) of the Rules.
12. 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.13 Payment shall 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. 20023270004 and FRN 0001-
8253-14. 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. 20554.14
13. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail, Return Receipt Requested, to
Florida Power and Light Company, 9250 West Flagler Street,
Miami, Florida, 33174, and to its counsel, Nancy K. Spooner,
Esq., Swidler Berlin Shereff Friedman, LLP, 3000 K Street,
N.W., Suite 300, Washington, DC 20007.
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.
20023270004 (Enf. Bur., Tampa Office, released January 8, 2002).
3 Florida Power states that it appears that a
``miscommunication or disconnect'' occurred, and the Tampa Office
did not receive Mr. Padilla's message that the Palm Bay tower
lights had been repaired.
4 Although Florida Power's response states that it contacted
the FAA on ``January 14, 2001,'' we believe, based on the date of
the NAL, the date of its response, and other dates included in
the response that it meant to state that the event occurred on
January 14, 2002.
5 American InfoAge, LLC, 16 FCC Rcd 16185 (2001) (reducing
forfeiture from $10,000 to $8,000 on the basis of overall history
of compliance); USA Tower, Inc., 16 FCC Rcd 13182 (2001)
(reducing forfeiture from $10,000 to $8,000 on the basis of
overall history of compliance).
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 Although Florida Power reports in its response that it
dispatched technicians on ``January 14-15, 2001'' to investigate
and repair the lighting system malfunctions, for the reasons
stated in note 4, supra we believe that the actual date of
reference is January 14-15, 2002.
10 47 C.F.R. § 17.47(a)(1).
11 47 C.F.R. § 17.47(a)(2).
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.