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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
South Central Communications Corp. ) File No. EB-02-AT-232
) NAL/Acct. No. 200232480008
Owner of Antenna Structure Registration ) FRN 0002-9009-26
No. 1043695 at Sevierville, Tennessee)
)
Knoxville, Tennessee )
FORFEITURE ORDER
Adopted: January 17, 2003 Released: January 22,
2003
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 South Central Communications Corp. (``SCCC''),
owner of an antenna structure with Antenna Structure
Registration (``ASR'') number 1043695 in Sevierville,
Tennessee, for willful and repeated violations of Sections
17.47(a)(2), 17.48(a), and 17.51 of the Commission's Rules.1
The noted violations involve SCCC's failure to maintain an
automatic alarm system designed to detect any failure of its
antenna structure lights and provide notification of such
failure to the structure owner, failure to notify the Federal
Aviation Administration (``FAA'') immediately of an
obstruction lighting outage on its antenna structure, and
failure to exhibit the required obstruction lighting on its
antenna structure.
2. On June 25, 2002, the Commission's Atlanta, Georgia
Field Office (``Atlanta Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to SCCC for a forfeiture in
the amount of ten thousand dollars ($10,000).2 SCCC filed a
response to the NAL on July 19, 2002.
II. BACKGROUND
3. On May 15, 2002, an agent from the Atlanta Office
inspected SCCC's antenna structure, ASR number 1043695, in
Sevierville, Tennessee, during daytime hours and after local
sunset. The agent observed that the structure was unpainted
and that there was no white obstruction lighting or red
obstruction lighting in operation on the structure. The ASR
for the structure indicated that the structure was required to
be painted in aviation orange and white and lighted with red
obstruction lighting between sunset and sunrise.
4. On May 16, 2002, the agent again inspected the
structure during the daytime and observed that there was no
white obstruction lighting in operation on the structure. The
agent also contacted the local FAA Flight Service Station and
determined that there was no Notice to Airmen (``NOTAM'')3 in
effect for this structure.
5. On May 21, 2002, the agent contacted SCCC's chief
engineer, Bob Glenn, and advised him that the lighting on the
structure was not functioning and that the structure was not
painted and lighted as specified in the ASR. Mr. Glenn stated
that the structure had been purchased unpainted from a former
owner, and that SCCC had installed medium intensity
obstruction lighting on the structure to operate 24 hours per
day. Mr. Glenn also stated that the structure's lighting is
monitored by an automatic alarm system, which can detect a
power failure to the lights, but cannot detect a light bulb
failure. Mr. Glenn stated that SCCC was therefore unaware
that the lighting on the structure had failed and had not
contacted the FAA to report the lighting outage.
6. On June 25, 2002, the Atlanta Office issued an NAL to
SCCC for a forfeiture in the amount of $10,000 for failure to
maintain an automatic alarm system designed to detect any
failure of its antenna structure lighting and provide
notification of such failure to the owner in willful and
repeated violation of Section 17.47(a)(2) of the Rules,
failure to notify the FAA immediately of an obstruction
lighting outage on its antenna structure in willful and
repeated violation of Section 17.48(a) of the Rules, and
failure to exhibit the required obstruction lighting on its
antenna structure in willful and repeated violation of Section
17.51 of the Rules.4 In its response to the NAL, SCCC
acknowledges that it was in violation of these rules on the
dates specified in the NAL and that the circumstances warrant
imposition of a forfeiture. However, SCCC requests reduction
of the $10,000 forfeiture proposed in the NAL based on its
past history of compliance with the Commission's rules. In
this regard, SCCC states that it has been the licensee of 30
broadcast facilities over the past 50 years and has an
unblemished history of compliance with the Commission's
technical requirements, including those related to towers,
during this period. SCCC also notes that when it acquired the
tower in 1987, the tower did not appear to be adequately
painted or lighted. SCCC asserts that it immediately sought
authority from the FAA to install medium intensity obstruction
lighting on the tower and that the FAA subsequently notified
the FCC that it had no objection to the use of such lighting
on the tower. In support of this assertion, SCCC provides a
copy of a 1987 letter from the FAA, which states in part:
``By copy of this letter, we are informing the Federal
Communications Commission that we have no objection to the use
of a medium intensity white obstruction lighting system on
this structure ....'' Finally, SCCC notes that upon learning
of the lighting outage from the FCC agent on May 21, 2002, it
immediately notified the FAA of the outage and then promptly
installed a new fail-safe strobe ``flash head'' and related
failure detector which will afford automatic notification in
the event of a bulb failure as well as a basic power failure.
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''),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). In examining SCCC'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.7
8. Section 17.47(a)(2) of the Rules requires antenna
structure owners to provide and properly maintain an automatic
alarm system designed to detect any lighting failure and to
provide notification of such failure to the owner.8 Section
17.48(a) of the Rules requires antenna structure owners to
notify the FAA immediately of any obstruction light outage if
the outage cannot be corrected within 30 minutes. Section
17.51 of the Rules requires antenna structure owners to
exhibit the prescribed obstruction lighting. SCCC admits that
it was in violation of these rules on the dates specified in
the NAL. Accordingly, we conclude that SCCC willfully9 and
repeatedly10 violated Sections 17.47(a)(2), 17.48(a) and 17.51
of the Rules.
9. SCCC notes that when it acquired the tower in 1987, it
requested and received approval from the FAA to install medium
intensity obstruction lighting on the tower. While we
acknowledge that the FAA notified the Commission in 1987 that
it had no objection to the use of medium intensity white
obstruction lighting on SCCC's tower in lieu of painting and
red obstruction lighting, this fact does not mitigate the
forfeiture proposed in the NAL because the medium intensity
white obstruction lighting installed on SCCC's tower was not
functioning on the dates of inspection.11 Further, the
corrective actions taken by SCCC upon learning of the lighting
outage from the FCC do not justify any reduction of the
forfeiture. The Commission has stated that remedial actions
taken to correct a violation are not mitigating factors
warranting reduction of a forfeiture.12 However, after
considering SCCC's history of compliance with the Commission's
rules, we conclude that reduction of the forfeiture proposed
in the NAL from $10,000 to $8,000 is appropriate.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,13 South Central Communications Corp. IS LIABLE FOR
A MONETARY FORFEITURE in the amount of eight thousand dollars
($8,000) for willful and repeated violations of Sections
17.47(a)(2), 17.48(a) and 17.51 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.14 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. 200232480008 and FRN
0002-9009-26. 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.
20554.15
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to South Central Communications Corp., 1100 Sharps
Ridge Road, Knoxville, Tennessee 37917, and to its counsel,
Edward S. O'Neill, Esq., Fletcher, Heald & Hildreth, P.L.C.,
11th Floor, 1300 North 17th Street, Arlington, Virginia 22209-
3801.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 17.47(a)(2), 17.48(a) and 17.51.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480008 (Enf. Bur., Atlanta Office, released June 25, 2002).
3 Tower owners are required to report any obstruction lighting
outages to the nearest Flight Service Station or FAA office
immediately if the outage is not corrected within 30 minutes.
See 47 C.F.R. § 17.48(a). The FAA then issues a NOTAM, a written
advisory to aircraft pilots regarding a hazard or potential
hazard of which they should be aware. A NOTAM expires
automatically after 15 days, unless the tower owner calls the FAA
to extend the NOTAM.
4 The Atlanta Office also found that SCCC had failed to
conform to the painting and lighting specifications contained in
the FAA Advisory Circular specified in its ASR in willful and
repeated violation of Section 17.23 of the Rules, 47 C.F.R. §
17.23. We note, however, that Section 17.23 applies only to new
and altered antenna structures registered on or after January 1,
1996, not to existing structures authorized prior to July 1,
1996. See 47 C.F.R. § 17.17(a). The antenna structure at issue
here was an existing structure authorized prior to July 1, 1996,
and therefore is not covered under Section 17.23. This
inadvertent error does not affect the forfeiture amount in this
case because the NAL did not propose a separate forfeiture amount
for violation of Section 17.23. The $10,000 forfeiture proposed
in the NAL is the base forfeiture amount for a tower lighting
violation. See 47 C.F.R. § 1.80(b)(4), Note to Paragraph (b)(4):
Section I.-Base Amounts for Section 503 Forfeitures.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 As an alternative to maintaining an automatic alarm system,
a tower owner may make an observation of the tower 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. 47 C.F.R. § 17.47(a)(1). SCCC does not
allege that it observed the tower lights visually or by observing
an automatic indicator at least once every 24 hours.
9 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,'
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act ....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
10 Section 312(f)(2) of the Act provides that ``[t]he term
`repeated,' ... 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).
11 As explained in note 4 supra, the NAL incorrectly cited
SCCC for willful and repeated violation of Section 17.23 of the
Rules for failure to conform to the painting and lighting
specifications contained in the FAA Advisory Circular specified
in its ASR. However, this inadvertent error does not affect the
forfeiture amount because the NAL did not propose a separate
forfeiture for violation of Section 17.23. The $10,000
forfeiture proposed in the NAL is the base forfeiture amount for
a tower lighting violation. See 47 C.F.R. § 1.80(b)(4), Note to
Paragraph (b)(4): Section I.-Base Amounts for Section 503
Forfeitures.
12 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
13 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
14 47 U.S.C. § 504(a).
15 See 47 C.F.R. § 1.1914.