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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-SD-004
)
SpectraSite Communications, ) NAL/Acct. No. 200232940004
Inc. )
) FRN # 0006-1525-73
Cary, North Carolina
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 18, 2002 Released: April 25,
2002
By the Commission: Commissioner Abernathy issuing a statement.
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find SpectraSite Communications, Inc.,
(``SpectraSite''), Cary, North Carolina, apparently liable for a
forfeiture in the amount of one hundred and eleven thousand
dollars ($111,000) for six willful and repeated violations of
Sections 303(q) of the Communications Act of 1934, as amended
(``Act''),1 and Part 17 of the Commission's Rules (``Rules'')
relating to antenna structure construction, marking, and
lighting.2
2. In particular, we find SpectraSite apparently liable
for one failure to register an existing antenna structure
(Section 17.4(a)(2)); two failures to post the Antenna Structure
Registration (``ASR'') number in a conspicuous location so that
it is visible near the base of the antenna structure (Section
17.4(g)); and three failures to replace or repair antenna
structure lights, automatic indicators, automatic controls, and
alarm systems as soon as practicable (Section 17.56(a)).3 We
find that during the period of April 24, 2001 through February 1,
2002, SpectraSite failed to comply with one of these requirements
in six separate locations throughout the country.
3. The apparent violations here come approximately within
a year of prior forfeitures against SpectraSite for similar
violations.4 Our rules relating to tower lighting and marking
are important to public safety. SpectraSite's apparent inability
to comply with these rules on a consistent basis is very
troubling. In light of these circumstances, we have tripled the
base forfeiture amounts for these violations. Future violations
will result in even more serious enforcement action.
II. BACKGROUND
4. The Commission's antenna structure construction,
marking and lighting requirements operate in concert with Federal
Aviation Administration (``FAA'') regulations to ensure that
antenna structures do not present hazards to air navigation.
Generally, our rules require that antenna structures located
close to airports or that are greater than 200 feet in height
comply with painting and lighting specifications designed to
ensure air safety.5 We require antenna structure owners to
register antenna structures with the Commission and post ASR
numbers at the base of antenna structures to allow for easy
contact if problems arise.6 The rules requiring antenna
structure registration for all antenna structures that may pose a
hazard to air navigation have been in effect since 1996.7 We
have repeatedly advised antenna structure owners that all
existing, unregistered antenna structures subject to our rules
must be registered immediately or the owners will face a monetary
forfeiture or other enforcement action.8
5. Because of the substantial public safety issues
involved, we further require antenna structure owners to monitor
lights daily or install automatic alarm systems to ensure lights
function properly.9 Antenna structure owners are required to
maintain lighting equipment and replace or repair inoperative
lights, indicators, and control and alarm systems as soon as
practicable.10 Additionally, antenna structure owners are
required immediately to notify the FAA when major antenna
structure lights are inoperative and cannot be repaired within 30
minutes.11 The FAA then issues Notices to Airmen (``NOTAM'') for
a period of 15 days advising aircraft that there is an antenna
structure at a specific location with a temporary light outage.
6. Commission field agents regularly inspect antenna
structures to determine compliance with the Commission's antenna
structure construction, marking and lighting requirements and
promptly respond to complaints of unlit towers. The FAA also
routinely notifies Commission field offices when owners fail to
either report that lights have been repaired within 15 days or
request that a NOTAM be extended. During routine inspections of
antenna structures owned by SpectraSite, from July 21, 2000 to
October 27, 2000, Commission Field agents discovered four antenna
structures that did not have the ASR numbers posted as required
and three antenna structures for which SpectraSite failed to
notify the Commission of ownership changes. These violations
resulted in a $17,000 monetary forfeiture against SpectraSite
issued on March 19, 2001, which SpectraSite paid in full.12 On
March 5, 2001, Commission field agents discovered an unlit
SpectraSite tower near Ocala, Florida. This violation of the
antenna structure lighting requirements resulted in a $10,000
monetary forfeiture against SpectraSite issued on October 3,
2001, which SpectraSite paid in full.13 In the course of ongoing
routine inspections and investigations, Commission field agents
have continued to uncover new violations of the Commission's
antenna structure requirements by SpectraSite, and in the past
year have issued a number of Notices of Violation (``NOVs'') for
such violations. A brief description of the most serious of
these safety-related violations, which are the subject of this
NAL, follows.
Oakdale, California - File No. EB-01-SF-172
7. On April 24, 2001, an agent from the Commission's San
Francisco, California Field Office (``San Francisco Office'')
inspected an antenna structure located at 10601 Pioneer Avenue,
Oakdale, California. The agent observed no ASR number posted at
the site. A search of Commission records revealed that the
structure was registered to SpectraSite (ASR No. 1208406). On
May 4, 2001, the San Francisco Office issued an NOV citing
SpectraSite for failure to post the antenna structure's ASR
number in violation of Section 17.4(g) of the Rules. In its May
18, 2001, response to the NOV, SpectraSite replied that it had
immediately posted a temporary sign at the site and had installed
a permanent ASR number sign there on May 9, 2001.
Badin, North Carolina - File No. EB-01-NF-252
8. On or about September 21, 2001, the FAA notified the
Commission's Enforcement Bureau that an antenna structure owned
by SpectraSite which is located at or near Badin, North Carolina
might not be registered, among other things. Subsequent contacts
between the FAA, a Resident Agent from the Commission's Norfolk,
Virginia Resident Agent Office, and SpectraSite revealed that the
antenna structure was subject to Part 17 of the Rules and,
accordingly, needed to be registered. On October 9, 2001, the
Resident Agent issued an NOV citing SpectraSite for failure to
register the antenna structure in violation of Section 17.4(a)(2)
of the Rules. In its two responses to the NOV, SpectraSite
details its remedial efforts, which culminated in its
registration of the antenna structure on November 8, 2001.14
Lewiston, Idaho - File No. EB-01-ST-329
9. On November 19, 2001, the FAA notified the Commission's
Seattle, Washington Field Office (``Seattle Office'') that a
NOTAM was open for an antenna structure owned by SpectraSite
which is located at 700 Lindsey Creek Road, Lewiston, Idaho (ASR
No. 1227064). An agent's investigation into the referral
revealed that since October 1, 2001, the FAA had issued three
NOTAMs for problems with the antenna structure's lighting. On
January 18, 2002, the Seattle Office issued an NOV citing
SpectraSite for failure to replace or repair the antenna
structure's lights, automatic indicators, automatic controls, and
alarms systems as soon as practicable in violation of Section
17.56(a) of the Rules. In its response to the NOV, SpectraSite
states that its antenna structure light monitoring company opened
the NOTAMs after receiving successive notifications of tower
light outages via an electronic monitoring device. According to
SpectraSite, it inspected the equipment and found that the
electronic monitoring device had a faulty controller.
SpectraSite then claims that it replaced the electronic
monitoring device's faulty controller and closed the outstanding
NOTAM on January 17, 2002, but provides no reason for its delay
in replacing the faulty controller.
Blackfoot, Idaho - File No. EB-01-ST-343
10. On December 10, 2001, the FAA notified the Seattle
Office that a NOTAM was open for an antenna structure owned by
SpectraSite which is located at or near Blackfoot, Idaho (ASR No.
1228118). An agent's investigation into the referral revealed
that since November 1, 2001, the FAA had issued multiple NOTAMs
for problems with the antenna structure's lighting. On January
18, 2002, the Seattle Office issued an NOV citing SpectraSite for
failure to replace or repair the antenna structure's lights,
automatic indicators, automatic controls, and alarms systems as
soon as practicable in violation of Section 17.56(a) of the
Rules. In its response to the NOV, SpectraSite states that a
``fuse was wired incorrectly causing a white strobe alarm.''
SpectraSite then claims that it would repair the lighting system
by February 1, 2002, and close the outstanding NOTAM, but
provides no reason for its delay in repairing the lighting
system.
Eugene, Oregon - File No. EB-02-PO-005
11. On December 17, 2001, the FAA notified the Commission's
Portland, Oregon Resident Agent Office that a NOTAM was open for
an antenna structure owned by SpectraSite which is located at
29790 Kelso Street, Eugene, Oregon (ASR No. 1218058). A Resident
Agent's investigation into the referral revealed that since
October 29, 2001, the FAA had issued five NOTAMs for problems
with the antenna structure's lighting. On January 11, 2002, the
Resident Agent issued an NOV citing SpectraSite for failure to
replace or repair the antenna structure's lights, automatic
indicators, automatic controls, and alarms systems as soon as
practicable in violation of Section 17.56(a) of the Rules. In
its response to the NOV, SpectraSite states that an apparent
equipment malfunction resulted in the successive NOTAMs.
SpectraSite then claims that it repaired the equipment and closed
the outstanding NOTAM on January 10, 2002, but provides no reason
for its delay in repairing the equipment.
Portland, Oregon - File No. EB-01-PO-301
12. On December 17, 2001, a Resident Agent from the
Enforcement Bureau's Portland, Oregon, Resident Agent Office
inspected an antenna structure located at or near Portland,
Oregon. The Resident Agent observed no ASR number posted at the
site. A search of Commission records revealed the structure was
registered to SpectraSite (ASR No. 1230865). On December 18,
2001, the Resident Agent issued an NOV citing SpectraSite for
failure to post the antenna structure's ASR number in violation
of Section 17.4(g) of the Rules. In its response to the NOV,
SpectraSite stated that it posted the ASR number at the site on
January 9, 2002.
III. DISCUSSION
13. Based on the evidence before us, we find that
SpectraSite has apparently failed to register an antenna
structure in willful15 violation of Section 17.4(a)(2); failed to
post an ASR number in a conspicuous location so that it is
readily visible near the base of the antenna structure in two
instances in willful violation of Section 17.4(g); and failed to
replace or repair three antenna structures' lights, automatic
indicators, automatic controls, and alarms systems as soon as
practicable in three instances in willful violation of Section
17.56(a). We also find that SpectraSite has apparently failed to
maintain the lighting of its antenna structures as required by
our rules in willful violation of Section 303(q) of the Act. We
note that these violations were continuing and thus also
repeated.16
14. Section 503(b) of the Act,17 authorizes the Commission
to assess a forfeiture for each willful or repeated violation of
the Act or of any rule, regulation, or order issued by the
Commission under the Act. In exercising such authority, we are
to 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 such other matters as justice may require.''18
15. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement'')19 and Section 1.80 of the Rules,20 the base
forfeiture amount for failure to comply with prescribed lighting
and marking requirements is $10,000, and the base forfeiture
amount for failure to file required forms or information (e.g.,
failure to file an antenna registration form) is $3,000. The
Forfeiture Policy Statement does not establish a base forfeiture
amount for failure to post the antenna structure registration
number.21 The Commission has determined, however, that an
appropriate base forfeiture amount for failure to post the ASR
number is $2,000 per violation.22
16. Application of the base amounts to SpectraSite's
violations results in an initial proposed forfeiture of $3,000
for the failure to register an antenna structure, a forfeiture of
$2,000 for each of the two instances of violations of the ASR
posting rules, and a forfeiture of $10,000 for each of the three
instances of violations for failure to replace or repair lights,
automatic indicators, automatic controls, and alarms systems as
soon as practicable. Thus, the total base forfeiture amount for
all of SpectraSite's violations is $37,000.
17. We are concerned with the pattern of apparent
violations here. We have previously stressed the importance of
full compliance with the antenna structure rules because of the
potential danger to air traffic safety, including the rules
designed to enable us to readily locate antenna structure
owners.23 In this case, we find SpectraSite's failure to replace
or repair lights, automatic indicators, automatic controls, and
alarms systems for months a serious threat to air traffic safety.
18. We are particularly troubled that SpectraSite continues
to violate these rules despite receiving two forfeiture
assessments within the last thirteen months for eight instances
of failure to comply with the antenna structure rules. The prior
forfeiture actions put SpectraSite on notice that the Commission
considers violations of the antenna structure construction,
marking, and lighting rules to be serious safety-related
infractions, yet SpectraSite apparently failed to take adequate
steps to ensure its future compliance in this area. The new
violations not only include two new instances of ASR posting
violations, but three very serious violations of the antenna
structure lighting rules. SpectraSite's continuing violation of
the antenna structure requirements evinces a pattern of non-
compliance with and apparent disregard for these safety-related
rules. Accordingly, we believe a significant upward adjustment
of the base forfeiture amount is warranted.24 Applying the
Forfeiture Policy Statement and statutory factors (e.g., nature,
extent and gravity of the violation and the history of prior
offenses)25 to the instant case, we conclude that it is
appropriate to triple the base forfeiture amounts for
SpectraSite's apparent violations. Therefore, we find
SpectraSite apparently liable for a forfeiture in the amount of
$111,000.
IV. ORDERING CLAUSES
19. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Section 1.80 of the Rules, SpectraSite
Communications, Inc. is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of one hundred and
eleven thousand dollars ($111,000) for willfully violating
Section 303(q) of the Act and willfully violating Sections
17.4(a)(2), 17.4 (g), and 17.56(a) of the Rules.
20. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
SpectraSite Communications, Inc. SHALL PAY the full amount of the
proposed forfeiture amount or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
21. Payment may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications
Commission, to the Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should note NAL/Acct. No.
200232940004 and FRN # 0006-1525-73. Requests for payment of the
full amount of this Notice of Apparent Liability under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.26
22. The response if any must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Technical and Public Safety Division and must include the
NAL/Acct. No. 200232940004.
23. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices; or (3) some
other reliable and objective documentation that accurately
reflects the petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted.
24. IT IS FURTHER ORDERED that a copy of this NAL shall be
sent by Certified Mail Return Receipt Requested to SpectraSite
Communications, Inc., 100 Regency Forest Drive, Cary, North
Carolina 27511.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary SEPARATE STATEMENT OF
COMMISSIONER KATHLEEN ABERNATHY
In re: SpectraSite Communications Inc. - Notice of Apparent
Liability for Forfeiture; AT&T Wireless Services Inc. - Notice
of Apparent Liability for Forfeiture
I support today's decisions to render substantial notices of
apparent liability against wireless tower owners who have
violated our tower marking and lighting requirements. I write
separately to call attention to the excellent and important work
of our field offices in these stepped up enforcement efforts.
Our field agents are our grass roots front line of defense
against unlawful spectrum and tower safety practices. As a
federal regulatory agency, we necessarily operate with most of
our personnel in Washington DC. However, for most Americans, the
FCC they see and hear and call upon for help work in the dozens
of field offices the Commission operates around the country. The
Commission has unique responsibilities for enforcement of
interference rules, tower safety, and unlicensed radio
operations, among others. These NALs are one indication of this
important work. In three regional offices and twenty five field
offices round the country, 109 agents with extensive technical
and enforcement expertise work tirelessly for a fraction of what
they could earn in the private sector. Since January 2001 in the
tower safety area alone, field agents have been integral in
issuing 37 Commission and/or Enforcement Bureau NALs, forfeiture
orders and consent decrees totaling well over $600,000.
Unfortunately, at times, the fine efforts of the field offices do
not receive the recognition they deserve. I write separately in
an effort to close this gap.
_________________________
1 47 U.S.C. § 303(q) (antenna structure owners shall maintain the
painting and lighting of antenna structures as prescribed by the
Commission).
2 47 C.F.R. § 17.1 et seq.
3 47 C.F.R. §§ 17.4(a)(2), 17.4(g) and 17.56(a).
4 See ¶ 6 and notes 12-13, infra.
5 47 C.F.R. § 17.21.
6 47 C.F.R. § 17.4.
7 Antenna structure owners were required to register existing
antenna structures during a two-year filing period between July
1, 1996 and June 30, 1998, and to register new antenna structures
prior to construction. Streamlining the Commission's Antenna
Structure Clearance Procedure, 11 FCC Rcd 4272 (1995).
8 Subsequent to the expiration of the filing period, the
Commission staff issued a Public Notice warning antenna structure
owners to register any unregistered antenna structures subject to
our requirements immediately or face possible monetary
forfeitures or other enforcement action. Public Notice,
``No?Tolerance Policy Adopted for Unregistered Antenna
Structures,'' 1999 WL 10060 (WTB rel. Jan. 13, 1999). In
addition, in June and July 1999, the Wireless Telecommunications
Bureau sent letters to licensees informing them that the
Commission had no valid registration for their antenna site and
that owners and, to the extent they were liable, tenants could
face monetary forfeitures for antenna structures that remained
unregistered.
9 47 C.F.R. § 17.47.
10 47 C.F. R. § 17.56.
11 47 C.F.R. § 17.48.
12SpectraSite Communications, Inc., 16 FCC Rcd 809 (Enf. Bur.
2001), forfeiture ordered, 16 FCC Rcd 6773 (Enf. Bur. 2001).
13 SpectraSite Communications, Inc., (Enf. Bur., Tampa Office
rel. Apr. 25, 2001), forfeiture ordered, 16 FCC Rcd 17668 (Enf.
Bur. 2001).
14 ASR number 1230615.
15 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
16 See id. at 4388; as defined in the Act, the term ``repeated,''
when used with reference to the commission or omission of any
act, ``means the commission or omission of such act more than
once or, if such commission or omission is continuous, for more
than one day.'' 47 U.S.C. § 312(f)(2).
17 47 U.S.C. § 503(b).
18 47 U.S.C. § 503(b)(2)(D).
19 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
20 47 C.F.R. § 1.80.
21 The fact that the Forfeiture Policy Statement does not specify
a base amount does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that ``any
omission of a specific rule violation from the [forfeiture
guidelines] . . . should not signal that the Commission considers
any unlisted violation as nonexistent or unimportant.''
Forfeiture Policy Statement, 12 FCC Rcd at 17099. The Commission
retains the discretion, moreover, to depart from the Forfeiture
Policy Statement and issue forfeitures on a case?by?case basis,
under its general forfeiture authority contained in Section 503
of the Act. Id.
22 American Tower Corp., 16 FCC Rcd 1282, 1284-85 (2001)
(``American Tower'').
23 Id. at 1282-85.
24 Cf., American Tower, 16 FCC Rcd at 1285 (base forfeiture
amount doubled); TeleCorp Communications, Inc., 16 FCC Rcd 805,
807 (Enf. Bur. 2001) (base forfeiture amount doubled).
25 See also 47 C.F.R. § 1.80, Note to paragraph (b)(4): Section
II. Adjustment Criteria for Section 503 Forfeitures.
26 See 47 C.F.R. § 1.1914.