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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
VoiceStream PCS I License L.L.C.) File No. EB-02-KC-500
Owner of Antenna Structure #1226514 )
Near Davis City, Iowa ) NAL/Acct. No.
200232560017
)
Bellevue, Washington ) FRN 0001-5651-34
FORFEITURE ORDER
Adopted: June 30, 2003 Released: July 2, 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
VoiceStream PCS I License
L.L.C. (``VoiceStream''), for
repeated violations of Section
17.51(b) of the Commission's
Rules (``Rules'').1 The noted
violation involves
VoiceStream's failure to
continuously exhibit all high
intensity and medium intensity
obstruction lighting.
2. On July 24, 2002, the
Commission's Kansas City,
Missouri, District Office
(``Kansas City Office'')
issued a Notice of Apparent
Liability for Forfeiture
(``NAL'') to VoiceStream for a
forfeiture in the amount of
ten thousand dollars
($10,000).2 VoiceStream filed
its response to the NAL on
August 23, 2002.
II. BACKGROUND
3. On June 24, 2002, an
agent from the Kansas City
Office, while conducting
random tower inspections,
inspected an antenna structure
near Davis City, Iowa.
During the inspection, the
agent determined that the
antenna structure did not
exhibit all the required high
intensity and medium intensity
obstruction lighting. The
agent noted that the posted
antenna structure number was
1226514.
4. The agent checked the
Commission's Antenna
Registration Data Base on June
27, 2002, and found that
VoiceStream is the registered
owner of antenna structure #
1226514 and that VoiceStream's
contact person is Dan Menser,
Esq. On the same date, the
agent contacted Mr. Menser by
telephone and told him about
the outage at antenna
structure # 1226514. Mr.
Menser stated that he would
check on the outage.
5. The agent conducted a
telephone interview with Mr.
Menser on July 2, 2002,
concerning the outage at
antenna structure # 1226514.
During the interview Mr.
Menser stated that the
photocell at antenna structure
# 1226514 became damaged,
causing the high and medium
intensity obstruction lighting
to become inoperable and the
red obstruction lighting
(required only from sunset to
sunrise) to operate during
both daylight and nighttime
hours, and that VoiceStream
repaired the photocell on June
29, 2002. Mr. Menser also
stated that VoiceStream did
not notify the Federal
Aviation Administration
(``FAA'') of the outage at any
time3 because ``the red lights
and beacon were operational
and . . . no alarms were
received.'' After the
interview, Mr. Menser e-mailed
a copy of VoiceStream's
``Monthly and Quarterly Check
of FAA Lighting and FAA
Outages Log'' to the agent.
According to this log,
VoiceStream inspects the
automated alarm system for
antenna structure # 1226514
every month and visually
checks for lighting outages
every three months. The log
indicates that the most recent
visual check was on May 30,
2002, and that the most recent
monthly inspection of the
automatic monitoring system
was on June 18, 2002.
6. On July 24, 2002, the
Kansas City Office issued a
NAL for a forfeiture in the
amount of $10,000 to
VoiceStream for willful and
repeated failure to
continuously exhibit all high
intensity and medium intensity
obstruction lighting, in
violation of Section 17.51(b)
of the Rules. In its
response, filed August 23,
2002, VoiceStream seeks
cancellation or mitigation of
the monetary forfeiture.
Although VoiceStream admits
that it violated Section
17.51(b), it contends that it
did not do so willfully or
repeatedly. In addition,
VoiceStream asserts that the
violation of 17.51(b) is
mitigated by its ``frequent
inspections prior to the
single lighting malfunction''
and ``implementing a swift
remedy'' and by its having
``not experienced a similar
equipment failure or been the
subject of a violation of
Commission Rules pertaining to
tower lighting.''
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''),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 VoiceStream'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
8. Section 17.51(b) of the
Rules provides that all high
intensity and medium intensity
obstruction lighting shall be
exhibited continuously unless
otherwise specified.'' In
its response to the NAL,
VoiceStream admits it did not
comply with Section 17.51(b)
but contends that it not
violate Section 17.51(b)
willfully or repeatedly.7 The
Commission detected the
lighting outage at antenna
structure # 1226514 on June
24, 2002. The outage
continued until it was
corrected on June 29, 2002 - a
five day period. A continuous
violation is ``repeated'' if
it continues for more than one
day.8 We conclude that
VoiceStream repeatedly
violated Section 17.51(b) of
the Rules between June 24 and
29, 2002.
9. Section 503(b) of the Act
gives the Commission authority
to assess a forfeiture penalty
against any person if the
Commission determines that the
person has ``willfully or
repeatedly'' failed to comply
with the provisions of the Act
or with any rule, regulation
or order issued by the
Commission. In light of our
determination that
VoiceStream's violations were
repeated, it is not necessary
to determine whether they were
also willful. 9
10. No mitigation is
warranted on the basis of
VoiceStream's correction of
the violation. As the
Commission stated in Seawest
Yacht Brokers, 9 FCC Rcd 6099,
6099 (1994), ``corrective
action taken to come into
compliance with Commission
rules or policy is expected,
and does not nullify or
mitigate any prior forfeitures
or violations.''10
11. No mitigation is
warranted on the basis that
VoiceStream ``has not
experienced a similar
equipment failure or been the
subject of a violation of
Commission Rules pertaining to
tower lighting.'' To warrant
mitigation, VoiceStream would
need to show a history of
overall compliance - not just
compliance with the rules
pertaining to tower lighting -
and it is clear that
VoiceStream does not have a
history of overall compliance.
11
12. VoiceStream asserts that
it made regular monthly
inspections of its automatic
alarm system as well as
quarterly visual inspections
of the tower lighting.
VoiceStream's last visual
check of the lighting prior to
the June 24-29, 2002, outage
was on May 30, 2002, and its
last monthly inspection of the
automatic monitoring system
was on June 18, 2002.12 Given
these circumstances, we find
that that forfeiture amount
should be reduced to $8,000 on
the basis of VoiceStream's
good faith13 efforts to comply
with the requirements of
Section 17.51(b) of the Rules.
13. We have examined
VoiceStream'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 VoiceStream
repeatedly violated Section
17.51(b) of the Rules and find
that, while there is no basis
for cancellation of the
proposed monetary forfeiture,
a reduction to $8,000 is
warranted.
IV. ORDERING CLAUSES
14. 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,14
VoiceStream IS LIABLE FOR A
MONETARY FORFEITURE in the
amount of eight thousand
dollars ($8,000) for failure
to continuously exhibit all
high intensity and medium
intensity obstruction
lighting, in repeated
violation of Section 17.51(b)
of the Rules.
15. 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 reference
NAL/Acct. No. 200232560017 and
FRN 0001-5651-34. Requests
for full payment under an
installment plan should be
sent to: Chief, Revenue and
Receivables Group, 445 12th
Street, S.W., Washington, D.C.
20554.16
16. IT IS FURTHER ORDERED
that copies of this Order
shall be sent by Certified
Mail Return Receipt Requested
and by First Class Mail to Dan
Menser, Senior Corporate
Counsel Regulatory Affairs,
VoiceStream PCS I License
L.L.C, 401 Ninth Street, N.W.,
Suite 550, Washington, D.C.
20004.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.51(b).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232560017 (Enf. Bur., Kansas City Office, released July 24,
2002).
3 The owner of any registered antenna structure must report
immediately to the nearest flight service station of the FAA any
observed or otherwise known extinguishment or improper
functioning of any flashing obstruction light not corrected
within 30 minutes. See 47 C.F.R. § 17.48.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 Although VoiceStream argues that its tower lighting
violations were neither willful nor repeated, it provides nothing
to support its claim that the violations were not repeated.
8 See 47 U.S.C. § 312(f)(2).
9 Koke, Inc., 23 FCC 2d 191 (1970).
10 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
11 See, e.g., VoiceStream PCS License I LLC, 16 FCC Rcd 7584
(Enf. Bur. 2001) (forfeiture paid), which involved VoiceStream's
failure to post antenna structure registration numbers at eleven
antenna sites, in violation of 47 C.F.R. § 17.4(g). In the case
cited by VoiceStream, USA Tower, Inc., 16 FCC Rcd 13182 (Enf.
Bur. 2001), the tower owner had a history of overall compliance,
which was the basis for the mitigating the forfeiture in that
case.
12 According to VoiceStream's response to the NAL, its
automatic alarm system failed to detect the lighting outage
because of a design defect: the system could be triggered only
by failure of both the high and medium intensity obstruction
lighting and the red obstruction lighting. In this case, there
was no triggering because only the high and medium intensity
obstruction lighting failed.
13 See Section 1.80(b)(4) of the Rules, 47 C.F.R. §
1.80(b)(4), Guidelines for Assessing Forfeitures, Part II,
Adjustment Criteria for Section 503 Forfeitures, Downward
Adjustment Criteria.
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.