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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
St. Louis Mobile Systems Inc. ) File No. EB-02-KC-0549
) NAL/Acct. No. 200232560023
Owner of Unregistered Antenna Structure Located ) FRN 0005-
9463-55
at 38° 17' 31'' North Latitude and 91° 41' 50'' )
West Longitude, near Belle, Missouri )
)
Rolla, Missouri )
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 three thousand dollars
($3,000) to St. Louis Mobile Systems Inc. (``St. Louis
Mobile''), owner of an antenna structure located at geographic
coordinates 38° 17' 31'' North Latitude and 91° 41' 50'' West
Longitude, near Belle, Missouri, for repeated violation of
Section 17.4(a) of the Commission's Rules (``Rules'').1 The
noted violation involves St. Louis Mobile's failure to
register its Belle antenna structure.
2. On August 20, 2002, the Commission's Kansas City,
Missouri Field Office (``Kansas City Office'') issued a Notice
of Apparent Liability for Forfeiture (``NAL'') to St. Louis
Mobile for a forfeiture in the amount of three thousand
dollars ($3,000).2 St. Louis Mobile filed a response to the
NAL on September 20, 2002.
II. BACKGROUND
3. On June 18, 2002, an agent from the Kansas City Office
inspected an antenna structure located at geographical
coordinates 38° 17' 31'' North Latitude and 91° 41' 50'' West
Longitude, near Belle, Missouri. The antenna structure was
approximately 385 feet in height. The agent observed that
there was no Antenna Structure Registration (``ASR'') number
posted on or near the antenna structure. The agent
subsequently searched the Commission's ASR database and
determined that there was no antenna structure registered at
these geographic coordinates. Further investigation revealed
that the owner of the Belle tower is St. Louis Mobile. On
July 16, 2002, the agent spoke with the president of St. Louis
Mobile, William G. Bowles, Jr., who confirmed that the Belle
tower is not registered.
4. On August 20, 2002, the Kansas City Office issued an
NAL for a $3,000 forfeiture to St. Louis Mobile for failure to
register its Belle antenna structure in willful and repeated
violation of Section 17.4(a) of the Rules. In its response to
the NAL, St. Louis Mobile requests cancellation of the
proposed forfeiture. St. Louis Mobile asserts that the
forfeiture should be cancelled because it made good faith
efforts to register the structure by filing a paper FCC Form
854 in 1996 and by filing electronically a couple of times in
1999. St. Louis Mobile asserts that these attempts to
register the Belle tower were unsuccessful either because it
was unable to provide certain information that was not in its
possession or because the 1981 FAA study for the Belle tower
was not in the Commission's database.3 St. Louis Mobile also
asserts that at no time was the Belle tower a hazard to air
navigation. Finally, St. Louis Mobile claims that it is
unable to pay the proposed $3,000 forfeiture and provides
balance sheets for 1999, 2000 and 2001 in support of this
claim.
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) (``Policy Statement''). In examining St. Louis
Mobile'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. Section 17.4(a) of the Rules provides that, effective
July 1, 1996, the owner of any proposed or existing antenna
structure that requires notification to the FAA must register
the structure with the Commission.7 The Belle tower required
FAA notification because it exceeds 200 feet in height.8 St.
Louis Mobile does not dispute that the Belle tower was not
registered from 1996 until July 2002. Accordingly, we find
that St. Louis Mobile repeatedly9 violated Section 17.4(a) of
the Rules.10
7. St. Louis Mobile asserts that the forfeiture should be
cancelled because it made good faith efforts to register the
tower in 1996 and again in 1999. While it does appear that
St. Louis Mobile made some efforts to register the tower
several years ago, we are not persuaded that these minimal
efforts warrant mitigation of the forfeiture amount. If St.
Louis Mobile was unable to provide certain information
regarding the 1981 FAA study requested by the prior owner of
the Belle tower, St. Louis Mobile could simply have requested
that the FAA conduct a new study on the tower. That is
precisely what other similarly situated tower owners have
done. Moreover, contrary to St. Louis Mobile's claim that it
was unable to obtain a copy of the 1981 FAA study, the 1981
FAA study has always been available from the FAA. Indeed,
after the Kansas City Office contacted St. Louis Mobile about
the unregistered tower in July 2002, St. Louis Mobile obtained
a copy of the 1981 FAA study from the FAA, provided this study
to the Commission, and registered the tower. In addition, we
note that, significantly, St. Louis Mobile made no efforts to
register since 1999 even though it knew its tower had not been
successfully registered.
8. St. Louis Mobile also asserts that at no time was the
Belle tower a hazard to air navigation. However, this factor
does not entitle St. Louis Mobile to a reduction of the
proposed forfeiture under the Commission's downward adjustment
criteria for forfeitures.11 We already treat failure to
register a tower as a more minor class of tower safety
violation than, for example, failure to light or paint a
tower.
9. Finally, St. Louis Mobile asserts that it is unable to
pay the forfeiture. St. Louis Mobile claims that it has not
had a large measure of success in obtaining tenants for the
Belle tower12 and provides balance sheets for 1999, 2000 and
2001 in support of this claim. The Commission has repeatedly
held that a company's gross revenues are the best indicator of
its ability to pay a forfeiture.13 We are unable to evaluate
fully St. Louis Mobile's ability to pay the $3,000 forfeiture
based on the balance sheets which it provided. These balance
sheets list only the rental income and expenses for the Belle
tower. However, according to Commission records, St. Louis
Mobile is the licensee of two paging and radiotelephone
service stations, which are authorized under call signs
KNKL966 and KNKJ413. St. Louis Mobile did not provide any
financial information concerning its paging and radiotelephone
operations and therefore we do not have a sufficient basis
upon which to evaluate its ability to pay the forfeiture.
10. We have examined St. Louis Mobile's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Policy Statement as well. As a result of our review,
we conclude that St. Louis Mobile repeatedly violated Section
17.4(a) of the Rules, and we find no basis for cancellation or
reduction of the forfeiture proposed for this violation.
IV. ORDERING CLAUSES
11. Accordingly, 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,14 St. Louis Mobile Systems Inc. IS LIABLE for a
monetary forfeiture in the amount of three thousand dollars
($3,000) for repeated violation of Section 17.4(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.15 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 NAL/Acct. No. 200232560023 and FRN 0005-
9463-55. 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. 20554.16
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail return receipt
requested to St. Louis Mobile Systems Inc., P.O. Box 405,
Rolla, Missouri 65402-0405.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.4(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232560023 (Enf. Bur., Kansas City Office, released August 20,
2002).
3 St. Louis Mobile states that when it submitted the paper
Form 854 in 1996, it responded ``unknown'' to Item 26, which
requested the date on which the application for an FAA study was
submitted to the FAA. St. Louis Mobile maintains that it did not
know the FAA study application date because the FAA study had
been requested by the prior owner of the tower and the FAA was
unable to provide the application date. St. Louis Mobile states
that when it attempted to register the Belle tower electronically
in 1999, the registration application was initially rejected
because it did not provide the FAA study application date and
because the FAA study was not in the Commission database. St.
Louis Mobile maintains that it attempted to register the tower
again in 1999 after the Commission's former Antenna Survey Branch
advised it that it could provide the FAA study issue date in lieu
of the application date, but the registration was again rejected
because the FAA study was not in the Commission database.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 We note that ASR applications for existing antenna
structures in Missouri were required to be filed during a 30-day
filing window from October 1 to October 31, 1996. Streamlining
the Commission's Antenna Structure Clearance Procedure and
Revision of Part 17 of the Commission's Rules Concerning
Construction, Marking and Lighting of Antenna Structures, 11 FCC
Rcd 4272, 4279 (1995).
8 See 47 C.F.R. § 17.7(a).
9 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).
10 Because we have determined that the violation was repeated,
we need not make a determination as to whether the violation was
willful. In this regard, Section 503(b)(1) of the Act provides
that a forfeiture penalty may be imposed if the violation is
either willful or repeated. 47 U.S.C. § 503(b)(1).
11 Policy Statement, 12 FCC Rcd at 17113; 47 C.F.R. § 1.80(b),
Note to paragraph b(4): Section II.-Adjustment Criteria for
Section 503 Forfeitures.
12 Commission records indicate that there are at least two
Commission licensees on the Belle tower, Mid-Missouri Mobilfone
and Ozark Beepers, Inc. Both licensees hold numerous paging and
radiotelephone licenses and are owned by William G. Bowles, Jr.,
the principal owner of St. Louis Mobile.
13 See Long Distance Direct, Inc., 15 FCC Rcd 3297, 3305
(2000); PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1991).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.