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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-KC-504
Pinnacle Towers, Inc. )
Owner of Antenna Structure # 1053157 in ) NAL/Acct. No.
200232560020
Des Moines, Iowa )
)
Sarasota, Florida ) FRN 0006-1561-11
FORFEITURE ORDER
Adopted: August 7, 2003 Released: August 11,
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 Pinnacle Towers, Inc. (``Pinnacle''), owner of
antenna structure number 1053157 in Des Moines, Iowa, for willful
violation of Section 17.50 of the Commission's Rules
(``Rules'').1 The noted violation involves Pinnacle's failure to
clean and repaint its antenna structure to maintain good
visibility.
2. On July 22, 2002, the District Director of the
Commission's Kansas City, Missouri Field Office (``Kansas City
Office'') issued a Notice of Apparent Liability for Forfeiture
(``NAL'')2 in the amount of twenty thousand dollars ($20,000) to
Pinnacle. Pinnacle filed a response on August 21, 2002.
II. BACKGROUND
3. On June 24, 2002, a Commission agent from the Kansas
City Office inspected Pinnacle's antenna structure number
1053157, located in Des Moines, Iowa (``Des Moines tower'').
While conducting the inspection, the agent observed black cabling
attached to the lower half to two-thirds of the structure, which
covered the painted metal tower and reduced visibility of the
structure. On July 22, 2002, the District Director of the Kansas
City Office issued a NAL for $20,000 to Pinnacle for violating
Section 17.50 of the Rules. The NAL doubled the $10,000 base
forfeiture amount for tower painting violations to $20,000
because the Kansas City Office determined that Pinnacle had a
history of violating Section 17.50 of the Rules.
4. In its response filed on August 21, 2002, Pinnacle
claims that the forfeiture proposed against it is unfair for
several reasons. Pinnacle argues that its recent bankruptcy
filing was not taken into account in the NAL. Pinnacle also
argues that the finding in the NAL that it has a history of non-
compliance with the painting rules is overstated and is
discriminatory against large tower owners. Pinnacle states that
the painting violations cited in the NAL as the basis for this
finding are extremely small in number considering that it owns
over 2,200 registered towers and that these violations had been
fixed or were in the process of being fixed when the Notices of
Violation (``NOVs'') in those cases were issued. Pinnacle also
claims that it did not willfully violate the painting rule
because its contracts with new tower lessees specifically require
the lessees to paint their cables, Pinnacle reviews its towers
for Federal Aviation Administration (``FAA'') and FCC compliance
on a quarterly basis, and Pinnacle had no other notice of the
alleged violation. Further, Pinnacle maintains that there has
been no demonstration that its violation was repeated.
Additionally, Pinnacle contends that the rule prohibiting
obstructions from unpainted cables has not been articulated, and
any determination of obstruction is therefore arbitrary.
Finally, Pinnacle asserts that the NAL is inconsistent with
several recent forfeiture orders issued with respect to Section
17.50 painting violations. For all of these reasons, Pinnacle
requests that the proposed forfeiture be eliminated or
substantially reduced.
III. DISCUSSION
·
5. The proposed forfeiture amount in this case is
being assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),3 Section 1.80
of the Rules,4 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 Pinnacle'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.5
6. Section 17.50 of the Rules provides that antenna
structures requiring painting under the rules shall be cleaned or
repainted as often as necessary to maintain good visibility.
Antenna structure number 1053157, owned by Pinnacle, has
specified lighting and painting requirements that include
painting the structure with alternating bands of aviation orange
and white. On June 24, 2002, an agent from the Kansas City
Office found that the antenna structure had black cabling
obscuring the orange and white paint, causing the structure to
have an overall dark appearance on the lower half to two-thirds
of the structure.
7. In its response to the NAL, Pinnacle presented several
arguments in support of its position that the forfeiture should
be cancelled or substantially reduced. First, Pinnacle argues
that its recent bankruptcy filing was not taken into account in
the NAL. It is unclear whether Pinnacle is asserting an
inability to pay claim or is simply arguing that the forfeiture
amount should have been affected by its bankruptcy filing. If
Pinnacle is claiming an inability to pay, the NAL explicitly
stated that 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. Pinnacle did
not provide any financial documentation in support of its request
for cancellation or reduction of the forfeiture and, therefore,
we have no basis upon which to analyze an inability to pay claim.
Further, although there is precedent for reducing or rescinding a
forfeiture based on bankruptcy in certain circumstances,6 we do
not believe that Pinnacle has justified a reduction or rescission
in this case because it has not provided financial documentation
for the Bureau's analysis, and because, even though it has filed
bankruptcy, it retains control over its assets. Moreover, filing
for bankruptcy does not preclude the Commission from issuing an
order imposing a forfeiture upon Pinnacle.7
8. Pinnacle also argues that the finding in the NAL
that it has a history of non-compliance with the painting rules
is overstated and is discriminatory against large tower owners.
Pinnacle states that the painting violations cited in the NAL as
the basis for this finding are extremely small in number
considering that it owns over 2,200 registered towers and that
they had been fixed or were in the process of being fixed when
the NOVs were issued. The NAL doubled the $10,000 base amount
for this violation to $20,000 because Pinnacle had been issued
three prior NOVs for violations of Section 17.50 of the Rules.
However, the record reflects that in two of these prior cases,
Pinnacle was aware of the painting problems and had begun to take
corrective measures prior to the inspections that led to the
NOVs. We do not believe that the one remaining prior violation
of Section 17.50 is sufficient to justify doubling the base
forfeiture amount for the violation in the instant case.
Consequently, we reduce the forfeiture amount to $10,000.
9. Next, Pinnacle claims that it did not willfully
violate the painting requirement because Pinnacle's contracts
with new tower lessees specifically require them to paint their
cables, Pinnacle reviews its towers for FAA and FCC compliance on
a quarterly basis, and Pinnacle had no notice of alleged
violations. Pinnacle asserts that ``The latest quarterly report
for the Des Moines tower did not indicate that the tower had any
marking problem. The contractor employed by Pinnacle did not
understand that unpainted lines can obstruct a tower's visibility
in violation of FCC rules.''
10. As the Commission recently reiterated, ``the
Commission has long held that licensees and other Commission
regulatees are responsible for the acts and omissions of their
employees and independent contractors and has consistently
refused to excuse licensees from forfeiture penalties where
actions of employees or independent contractors have resulted in
violations.''8 Pinnacle is, therefore, chargeable with knowledge
of its contractor's observation of unpainted cables at the Des
Moines tower even if the contractor failed to provide this
information to Pinnacle. Additionally, one of the NOVs
referenced in Paragraph 8, above,9 put Pinnacle on notice
concerning the need to paint the cables. We conclude that
Pinnacle's violation of the painting requirement was willful.
11. 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 Pinnacle's violations were
willful, it is not necessary to determine whether they were also
repeated. 10
12. Additionally, Pinnacle contends that the rule
prohibiting obstructions from unpainted cables has not been
articulated and any determination of obstruction is therefore
arbitrary. We disagree. Pinnacle acknowledges that the antenna
structure registration for its Des Moines tower requires it to
comply with FAA Advisory Circular AC 70/7460-1J. This Advisory
Circular explicitly states that ``alternative bands of aviation
orange and white are normally displayed on ... coaxial cable,
conduits and other cables attached to the face of a tower.''11
Thus, any cables attached to the face of Pinnacle's tower are
required to be painted.12 Moreover, the agent inspected the
tower and determined that the unpainted cables did, in fact,
obscure the visibility of the tower in violation of Section 17.50
of the Rules. Further, the photographic evidence provided by the
agent supports his determination that Pinnacle's tower was indeed
obstructed by the cables.
13. Finally, Pinnacle asserts that the NAL is
inconsistent with several recent forfeiture orders issued with
respect to Section 17.50 painting violations. Specifically,
Pinnacle argues that in three prior cases, forfeitures of $19,000
or $20,000 were assessed for multiple rule violations, including
a Section 17.50 violation, whereas in this case a $20,000
forfeiture was proposed for a single violation of Section 17.50.
Because we have reduced the forfeiture in this case to the
$10,000 base forfeiture amount, we need not address this
argument. Pinnacle also asserts that in these prior cases, the
tower owner was given an NOV and an opportunity to cure the
violation prior to issuance of the NAL. However, there is no
requirement that the Commission issue an NOV or provide a
violator an opportunity to cure a violation prior to issuing an
NAL.13
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 Pinnacle 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.
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.
200232560020 and FRN 0006-1561-11. 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 Pinnacle Towers, Inc., 301 N. Cattlemen Road, 3rd
Floor, Sarasota, Florida 34232 and its counsel, Thomas B. Magee,
Esq. Keller and Heckman LLP, 1001 G Street, Suite 500 West,
Washington, DC 20001.
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.
200232560020 (Enf. Bur., Kansas City Office, released July 22,
2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 See, e.g., Dennis Elam, Trustee for Bakcor Broadcasting,
Inc., Debtor, 11 FCC Rcd 1137 (1996) (forfeiture rescinded after
bankruptcy trustee was appointed and the violator was no longer
associated with the subject radio stations); Interstate Savings,
Inc. d/b/a ISI Communications, 12 FCC Rcd 2934 (CCB 1997)
(forfeiture rescinded where trustee was appointed in Chapter 7
liquidation, removing violator from operating as a common carrier
and from involvement in dissolution or distribution of assets.
Requiring trustee to pay the forfeiture would diminish estate
assets available to innocent creditors and serve no public
interest purpose.).
7 See 11 U.S.C. § 362(b)(4). See Coleman Enterprises, Inc.,
16 FCC Rcd 24385, 24389 n. 28 (2000) (filing for chapter 11
bankruptcy does not preclude the Commission from issuing an Order
of Forfeiture). See also United States of America v.
Commonwealth Companies, Inc., 913 F.2d 518 (8th Cir. 1990).
8 See, e.g., Eure Family Limited Partnership, 17 FCC Rcd
21861, 21863-64 (2002) (internal quotation marks omitted) and
cases cited therein.
9 That NOV was issued on January 15, 2001, by the Commission's
Tampa, Florida, Field Office, for violation of Section 17.50 of
the Rules because of unpainted cables running along the side of
the antenna structure.
10 Koke, Inc., 23 FCC 2d 191 (1970).
11 FAA Advisory Circular AC 70/7460-1J, Obstruction Marking
and Lighting, Chapter 3, Marking Guidelines, Paragraph 33(d)(7).
12 See Pinnacle Towers, Inc., 18 FCC Rcd 6419, 6419-6420 (Enf.
Bur. 2003).
13 See 47 C.F.R. § 1.89; AT&T Wireless Services, Inc.,
17 FCC Rcd 21866, 21871 n. 20; and WOYK, Inc., DA 03-2367, fn. 8
(Enf. Bur. released July 22, 2003).
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.