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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
FBS Wireless Corporation. ) File No. EB-02-PA-140
WFBS(AM) )
Berwick, Pennsylvania ) NAL/Acct. No. 200232400007
)
) FRN 0006-7296-02
FORFEITURE ORDER
Adopted: October 16, 2003 Released: October 20,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twenty thousand
dollars ($20,000) to FBS Wireless Corporation (``FBS'')
for repeated violation of Sections 17.4(a), 17.51(a) and
73.49 of the Commission's Rules (``Rules'')1 and deny
FBS's request for a hearing upon the forfeiture. The
noted violations involve FBS's failure to register and
light the antenna structure for station WFBS(AM) and to
enclose that antenna structure within an effective
locked fence.
2. On August 12, 2002, the Commission's Philadelphia,
Pennsylvania, Field Office (``Philadelphia Office'')
released a Notice of Apparent Liability for Forfeiture
(``NAL'') to FBS for a forfeiture in the amount of
twenty thousand dollars ($20,000).2 FBS filed its
response to the NAL on September 16, 2002, and
supplemented that response on February 3, 2003.
II. BACKGROUND
3. FBS is the licensee of WFBS(AM), Berwick, Pennsylvania,
and owns that station's antenna structure. On March 19,
2002, an agent from the Philadelphia Office inspected
WFBS's antenna structure. The station's license then
specified that the station's antenna structure must
exhibit red obstruction lighting at night. When the
agent asked Kevin Fennessey, the president of FBS, to
demonstrate the antenna structure's red obstruction
lighting, Mr. Fennessey responded that the red
obstruction lighting had not been operational since FBS
acquired the station in February 2000. The agent also
observed that the gate to the fence surrounding the
antenna structure was unlocked. In addition, the agent
determined that the antenna structure was not
registered.
4. When the agent reinspected the antenna structure on
April 24, 2002, he found that the antenna structure was
still unregistered and that the gate to the fence
surrounding the antenna structure was still unlocked. A
recent check of the FCC's Antenna Structure Registration
data base indicates that FBS registered the antenna
structure on September 16, 2003.
5. On May 20, 2002, the Philadelphia Office issued a
Notice of Violation (``NOV'') to FBS for various
violations of the Rules, including Sections 17.4(a),
17.51(a) and 73.49 -- failure to register and light the
antenna structure for the station and to enclose it
within an effective locked fence. In its response to the
NOV, filed on June 4, 2002, FBS admitted that its
antenna structure was unregistered and that the red
obstruction lighting had been extinguished for
approximately 10 years. However, FBS also stated that
the height of the antenna ``was in dispute'' and ``had
been represented to us as 198 feet, not requiring . . .
illumination . . . .'' In addition, FBS asserted that
it had corrected the fencing violation.
6. On August 12, 2002, the Philadelphia Office issued a
NAL for a forfeiture in the amount of $20,000 to FBS for
willful and repeated violation of Sections 17.4(a),
17.51(a) and 73.49 of the Rules. In its response, filed
September 16, 2002, FBS seeks cancellation of the
proposed monetary forfeiture. FBS contends that there
were no willful or repeated violations and that FBS
``has diligently . . . worked hard to remedy what the
Enforcement Bureau contends that we are in violation
of.'' FBS also contends that it has financial
difficulties but does not provide any financial
information. Additionally, FBS requests an
administrative hearing on the proposed forfeiture.
7. With a supplementary response, filed February 3, 2003,
FBS provided a copy of No Hazard determination issued by
the FAA on December 11, 2002 (four months after the
NAL), which indicates that the height of the antenna
structure is 200 feet and that ``marking and lighting
are not necessary for aviation safety.'' In its letter
of February 20, 2003, the Philadelphia Office requested
that FBS measure the antenna structure to determine
whether it exceeds 200 feet above the ground. On March
3, 2003, FBS, through its contractor, D&L Communications
Services, measured the antenna structure's height as
199.5 feet. This measurement, however, did not include
the concrete base of the antenna structure. The FCC
agent estimates that the concrete base adds
approximately 3 feet to the height of the antenna
structure.
8. After the measurement, FBS applied for a new No Hazard
determination. On August 11, 2003, the FAA issued a new
No Hazard determination on the basis of a tower height
of 202 feet. The new No Hazard determination indicates
that no painting or lighting is now required for FBS's
antenna structure.
III. DISCUSSION
9. The proposed forfeiture amount in this case was
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) (``Policy Statement''). In examining
FBS'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
10. 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,6 FAA notification is required for
towers whose height above ground level exceeds 200 feet.
The March 3, 2003, measurement establishes that the
height of FBS's antenna structure is approximately 202
1/2 feet above the ground. FBS concedes that its
antenna structure was not registered. We find that FBS's
antenna structure was unregistered from the time FBS
acquired it in February 2000 until September 16, 2003.
Accordingly, we find that FBS repeatedly7 violated
Section 17.4(a).8
11. As indicated above, FBS's license required red
obstruction lighting for the antenna structure Section
17.51(a) of the Rules requires that red obstruction
lighting be exhibited between sunset and sunrise. FBS
concedes that the antenna structure's red obstruction
lighting has not functioned for at least ten years. The
FAA's August 11, 2003, No Hazard determination was not
in effect until that date (subsequent to the issuance of
the NAL). We, therefore, find that FBS repeatedly
violated Section 17.51(a).
12. Section 73.49 of the Rules requires the owner of an
antenna structure to enclose it within an effective
locked fence. On the basis of the agent's investigation
and FBS's admission, we find that FBS repeatedly
violated Section 73.49.
13. FBS also argues that it did not ``willfully'' violate
the Rules. 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 view
of our determination that the violations are repeated,
it is unnecessary to determine whether they are also
willful.
14. FBS states that it has financial difficulties but has
submitted no financial documentation. As stated in the
NAL, the Commission will not consider reducing or
canceling a forfeiture on the basis 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.
15. No mitigation is warranted on the basis of FBS's
correction of the fencing violation and removal of the
lighting requirements. 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.'' 9
16. We have examined FBS'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 FBS repeatedly violated Sections 17.4(a),
17.51(a) and 73.49 of the Rules and find no basis for
cancellation or reduction of the proposed $20,000
monetary forfeiture.
17. FBS seeks an administrative hearing upon the monetary
forfeiture. Section 1.80(g) of the Rules provides in
pertinent part that the procedure for issuing a Notice
of Opportunity for Hearing in a forfeiture matter
``will ordinarily be followed only when a hearing is
being held for some reason other than the assessment of
a forfeiture . . . and a forfeiture is to be considered
as an alternative or in addition to any other Commission
action. However, these procedures may be followed
whenever the Commission, in its discretion, determines
that they will better serve the ends of justice.'' FBS
has provided no information that warrants a hearing and
we find that a hearing would not better serve the ends
of justice.
IV. ORDERING CLAUSES
18. 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 FBS IS LIABLE FOR A MONETARY
FORFEITURE in the amount of twenty thousand dollars
($20,000) for failure to register and light its antenna
structure and to enclose it with an effective locked
fence, in repeated violation of Sections 17.4(a),
17.51(a) and 73.49 of the Rules.
19. IT IS FURTHER ORDERED, pursuant to Sections 0.111,
0.311 and 1.80(g) of the Rules, that FBS's request for
an administrative hearing IS DENIED.
20. 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 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. 200232400007 and FRN 0006-7296-
02. 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. 20554.12
21. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to FBS Wireless Corporation, 114 Market
Street, 2nd Floor, Berwick, PA 18603.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.21(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232400007 (Enf. Bur., Philadelphia Office, released August 12,
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 47 C.F.R. § 17.7(a).
7 As provided by 47 U.S.C. § 312(f)(2), a continuous violation
is ``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
8 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. FBS's antenna structure is not among
those identified during the audit and, therefore, FBS is not
entitled to an amnesty period to register its tower.
9 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).
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.