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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-502
)
Missouri RSA No.2 Partnership ) NAL/Acct. No. 200232560019
d.b.a. Alltel )
Owner of Antenna Structure ) FRN 0001-8373-27
#1004380 near )
Ridgeway, Missouri )
Little Rock, Arkansas
FORFEITURE ORDER
Adopted: June 25, 2003 Released: June 27, 2003
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 Missouri RSA No. 2 Partnership d.b.a. Alltel
(``Alltel'') for willful violation of Section 17.50 of the
Commission's Rules (``Rules'').1 The noted violation involves
Alltel's failure to clean and repaint its antenna structure to
maintain good visibility.
2. On July 24, 2002, the Commission's Kansas City, Kansas
Field Office (``Kansas City Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of ten thousand
dollars ($10,000) to Alltel for the noted violation.2
II. BACKGROUND
3. On June 24, 2002, an agent from the Kansas City Office
inspected the antenna structure bearing FCC registration number
1004380 and located near Ridgeway, Missouri. At the time of the
inspection, the paint on the structure was severely faded,
thereby reducing visibility of the structure. Antenna structure
registration number 1004380 is registered to, and owned by
Alltel, and is required to be painted with alternating aviation
orange and white bands. On July 24, 2002, the Kansas City Office
issued an NAL in the amount of $10,000 to Alltel for failure to
clean and repaint its antenna structure to maintain good
visibility.
4. In its response to the NAL, Alltel requests
cancellation or reduction of the proposed forfeiture. Alltel
argues that the instant NAL is the first issued against it, and
that it is establishing a compliance procedure that includes
periodic inspection and maintenance of its antenna towers to
ensure compliance with Part 17 standards. In addition, Alltel
contends that the same tower cited in the NAL had been the
subject of a Notice of Violation (``NOV'') issued by the Kansas
City Office, dated September 17, 2001. The NOV notes that the
tower had coax outside the tower legs covering the paint on the
tower itself. Alltel indicates that it immediately contracted
with a company to have the tower and the coax painted by October
3, 2001, and notified the Kansas City Office of its actions.
Alltel claims that subsequently, on June 27, 2002, an FCC agent
called the licensee and indicated that issuance of another NOV
was possible because the paint had faded and a tower sign was
missing.3 Alltel states that it immediately contracted with a
different company to have the tower painted again to ensure
proper visibility. Alltel reports that the tower painting has
been completed and that it is now in full compliance with the
Commission's rules. Alltel argues that since a NOV was not
issued in this case, it did not have an opportunity to correct
the situation. According to Alltel, in light of its history of
overall compliance and swift actions to correct the violations,
the issuance of a NOV instead of a NAL would have been
appropriate. There should be no linkage between the previous NOV
and the instant situation, asserts Alltel, because it took swift
actions to correct the violations in both instances. Alltel
contends that the previous contractor that it hired after receipt
of the NOV in 2001 used substandard materials and ``victimized''
Alltel.
III. DISCUSSION
5. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended, (``Act''),4 Section 1.80 of the Rules,5 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 Alltel'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.6
6. Rescission or reduction of the proposed forfeiture is
not warranted in this case. We decline to rescind or reduce the
forfeiture on the basis that no NOV was issued, and therefore the
licensee did not have an opportunity to correct the violation.
Nothing in the Communications Act or the Commission's Rules
entitles a licensee to an opportunity to correct a violation
prior to the issuance of a NAL. Licensees cannot expect simply
to sit back and await Commission findings of violations before
taking appropriate steps to ensure compliance with Commission
rules. Alltel's argument that its contractor used substandard
quality paint does not provide a basis for rescission or
mitigation of the proposed forfeiture; it is responsible for the
acts of its agents.7 Furthermore, Alltel's remedial efforts to
correct the violation are not a mitigating factor.8 In this
regard, the fact that Alltel is now establishing a program to
inspect its towers to ensure compliance with Part 17 is hardly a
mitigating factor; if anything its lack of such a program until
now is an exacerbating factor. Finally, we are not persuaded
that Alltel's history of overall compliance justifies a reduction
in the forfeiture in light of the NOV issued on September 17,
2001 for a very similar violation and several other NOVs issued
to Alltel regarding Part 17 violations.9
IV. ORDERING CLAUSES
7. 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,10 Missouri RSA No. 2 Partnership d.b.a. Alltel IS
LIABLE FOR A MONETARY FORFEITURE in the amount of ten thousand
dollars ($10,000) for failure to clean and repaint its antenna
structure to maintain good visibility in willful violation of
Section 17.50 of the Rules.
8. 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.11
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.
200232560019 and FRN 0001-8373-27. 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. 20554.12
9. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by First Class and Certified Mail, Return Receipt
Requested, to Missouri RSA No. 2 Partnership d.b.a. Alltel, One
Allied Drive, B2F02-A, Little Rock, AR 72202, and to its counsel
Glenn S. Rabin, Esq., Alltel Corporation, 601 Pennsylvania
Avenue, NW, Suite 720, Washington, DC 20004.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.50.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232560019 (Enf. Bur., Kansas City Office, released July 24,
2002).
3 We note that the FCC agent did not affirmatively state that a
NOV would be issued.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 See MTD, Inc., 6 FCC Rcd 34, 35 (1991) (stating that the
Commission has long held that licensees are responsible for the
negligent acts or omissions of their employees and that this
responsibility is not lessened when contractors are used);
Wagenvoord Broadcasting Co., 35 FCC 2d 361 (1972) (stating that
the negligent acts or omissions of an employee or independent
contractor do not relieve a licensee of its responsibility to
comply with the Commission's rules).
8 See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871
(2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994); Station
KGVL, Inc., 42 FCC 2d 258, 259 (1973).
9 See Arnold Broadcasting Company, 16 FCC Rcd 267, 269 (Enf. Bur.
2001), application for review granted in part for other reasons
and denied in part, 16 FCC Rcd 13600 (2001); and Crown
Communication, Inc., 15 FCC Rcd 21937 (Enf. Bur. 2000).
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.