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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Dewey D. Lankford ) File No. EB-02-AT-305
)
Owner of Unregistered Antenna Structure ) NAL/Acct. No.
200232480018
Located at 33° 41' 15'' North Latitude, 85° 49' 49'' )
West Longitude in Anniston, Alabama ) FRN 0007-6936-41
)
Anniston, Alabama )
FORFEITURE ORDER
Adopted: September 15, 2003 Released: September 17,
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 Dewey D. Lankford for willful
violation of Section 17.4(a) of the Commission's Rules
(``Rules'').1 The noted violation involves Mr.
Lankford's failure to register his antenna structure.
2. On September 24, 2002, the Commission's Atlanta,
Georgia, Field Office (``Atlanta Office'') released a
Notice of Apparent Liability for Forfeiture (``NAL'') 2
to Mr. Lankford for a forfeiture in the amount of three
thousand dollars ($3,000). Mr. Lankford filed his
response to the NAL on October 10, 2002.
II. BACKGROUND
3. Mr. Lankford is the licensee of broadcast station
WANA(AM), Anniston, Alabama, and owns that station's
antenna structure. According to the Commission's
records, the antenna structure's height above ground is
over 200 feet. On June 26, 2002, an agent from the
Atlanta Office inspected the antenna structure, located
at 33° 41' 15'' North Latitude, 85° 49' 49'' West
Longitude in Anniston, Alabama. A check of the
Commission's tower registration records indicated that
WANA's tower was not registered. A recent check of the
of the Commission's tower registration records indicates
that WANA's tower remains unregistered.
4. On September 24, 2002, the Atlanta Office issued a NAL
for a forfeiture in the amount of $3,000 to Mr. Lankford
for his failure to register the tower, in willful
violation of Section 17.4(a) of the Rules. In his
response, filed February 10, 2003,3 Mr. Lankford admits
that his antenna structure was not registered but
requests cancellation or reduction of the proposed
forfeiture on the basis that ``we have tried from the
first receipt of your letter to comply with any and all
FCC statutes.'' Mr. Lankford states that the previous
owner of the station told him that everything regarding
the station was ``in order'' and there was a
``variance'' regarding registration of the tower. Mr.
Lankford further states that he believed, on the basis
of a telegram from the FCC (received by the previous
licensee of WANA), that WANA's tower was not required to
be registered because it has no marking or lighting
requirements.4
III. DISCUSSION
5. The proposed 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) (``Policy Statement''). In examining
Mr. Lankford'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
6. Section 17.4(a) of the Rules requires the registration
of antenna structures which require notice to the
Federal Aviation Administration. As provided in Section
17.7(a) of the Rules,8 FAA notification is required for
towers whose height above ground level exceeds 200 feet.
According to the Commission's records, the height of Mr.
Lankford's antenna structure is over 200 feet. The
antenna structure is, therefore, required to be
registered. The lack of marking and lighting
requirements does not negate the tower registration
requirement. On the basis of the FCC agent's
investigation, we find that the antenna structure is not
registered9 and that Mr. Lankford violated Section
17.4(a) by failing to register it. Because Mr. Lankford
knew that WANA's tower was not registered, we find that
his violation of Section 17.4(a) was willful.10
7. No mitigation is warranted on the basis of Mr.
Lankford's having ``tried'' to comply with the
Commission's Rules after the Atlanta Office issued the
NAL. In fact, Commission records indicate that his
antenna remains unregistered.
8. We have examined Mr. Lankford'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 Mr. Lankford
willfully violated Section 17.4(a) of the Rules and find
that neither cancellation nor reduction of the proposed
monetary forfeiture is warranted.
9. Mr. Lankford has not yet complied with Section 17.4(a)
of the Rules. Accordingly, we will require, pursuant to
Section 308(b) of the Act,11 that he report to the
Enforcement Bureau no more than thirty (30) days
following the release of this order how he plans to
achieve compliance with Section 17.4(a). Mr. Lankford's
report must be submitted in the form of an affidavit or
declaration signed by Mr. Lankford.
IV. ORDERING CLAUSES
10. 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,12 Dewey D. Lankford IS LIABLE
FOR A MONETARY FORFEITURE in the amount of three
thousand dollars ($3,000) for failure to register his
antenna structure, in willful violation of Section
17.4(a) of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 308(b)
of the Act, Dewey D. Lankford must submit the report
described in Paragraph 9, above, no more than thirty
(30) days following the release of this order, to the
Federal Communications Commission, Enforcement Bureau,
Spectrum Enforcement Division, 445 12th Street, S.W.,
Room 7-A820, Washington, D.C. 20554, Attention: Thomas
D. Fitz-Gibbon, Esq.
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.13 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. 200232480018 and FRN 0007-6936-
41. 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. 20554.14
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Dewey D. Lankford at 1111 Wilmer Avenue,
Anniston, Alabama 36201.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.14 (a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480018 (Enf. Bur., Atlanta Office, released September 24,
2002).
3 Mr. Lankford states that he also sent a response by
facsimile within the 30 day response period. We have no record
of receiving that facsimile.
4 A check of the Commission's TOWPUB data base confirms that
WANA's tower does not have marking and lighting requirements.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 C.F.R. § 17.7(a).
9 On July 23, 2003, the Wireless Telecommunications Bureau
released a Public Notice, DA-03-2411, granting a 60 day
amnesty period to the owners of certain unregistered antenna
structures identified during an audit. Mr. Lankford's antenna
structure is not among those identified during the audit and,
therefore, Mr. Lankford is not entitled to an amnesty period
to register his tower.
10 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).
11 47 U.S.C. § 308(b).
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.