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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
Haviland Telephone Co., Inc.,    )    File Number EB-02-KC-331
Owner of Antenna Structure       )    NAL/Acct. No. 200232560009
Registration                     )
No. 1033509                      )
                                )    FRN 0005-0815-67
Haviland, Kansas

                        FORFEITURE ORDER

   Adopted:  January 31, 2003           Released:  February 4, 

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary forfeiture in  the amount of  two thousand five  hundred 
dollars ($2,500) to Haviland Telephone Co., Inc.,  (``Haviland'') 
for willful violation of Section 17.21 of the Commission's  Rules 
(``Rules'').1  The noted violation involves Haviland's failure to 
exhibit the prescribed painting.

     2.   On June 13, 2002, the Commission's Kansas City,  Kansas 
Field Office (``Kansas City Office'') issued a Notice of Apparent 
Liability for Forfeiture (``NAL'') in the amount of ten  thousand 
dollars ($10,000) to Haviland for the noted violation.2  Haviland 
filed a  response  to the  NAL  on July  22,  2002, and  filed  a 
supplement to its response dated August 20, 2002.

                          II.  BACKGROUND

     3.   On May 16, 2002, an  agent from the Kansas City  Office 
inspected  Haviland's   antenna  structure   number  1033509   in 
Haviland, Kansas.   The structure's  height was  122 meters  (400 
feet), thus requiring painting and lighting.  The agent  observed 
that the antenna structure was  unpainted, there were no  daytime 
obstruction lights in  operation, and that  there was no  antenna 
structure registration (``ASR'')  number visible at  or near  the 
base  of  the   tower.   The   ASR  and   the  Federal   Aviation 
Administration  (``FAA'')   records  for   this  structure   both 
prescribe that red obstruction lighting and paint be exhibited on 
the structure.

     4.   On June 13, 2002, the Kansas City Office issued an  NAL 
in the amount of $10,000 to  Haviland for failure to exhibit  the 
prescribed painting in willful violation of Section 17.21 of  the 
Rules.  In its response  to the NAL,  Haviland requests that  the 
proposed  forfeiture  be   remitted  or  substantially   reduced.  
Haviland states that the NAL mistakenly asserts that the  daytime 
obstruction lights  were  not  in  operation  on  May  16,  2002.  
Specifically, Haviland claims that  it received a telephone  call 
from the Kansas City Office on May 16, 2002, and that it visually 
inspected the tower while  the caller was  on the telephone.   At 
this time,  argues  Haviland,  the tower's  lighting  system  was 
operating properly.  In addition,  Haviland states that when  the 
tower was constructed in 1993, Haviland proceeded with the ``good 
faith belief''  that  medium  intensity strobe  lighting  was  an 
equivalent to painting and  red obstruction lighting.   Moreover, 
Haviland indicates that the  FAA clearance in Aeronautical  Study 
No. 93-ACE-0022-OE stated that the structure was to be marked and 
lighted  ``in accordance  with FAA  Advisory Circular  70/7460-1H 
(``FAA Circular'').''  Haviland argues that paragraphs 37(b)  and 
42(b) of  the  FAA  Circular  state  that  when  medium-intensity 
flashing white (strobe) obstruction lighting systems are used  on 
structures of  500  feet or  less  in height,  other  methods  of 
marking and  lighting the  structure  may be  omitted.   Haviland 
contends that  its  decision  not  to  paint  the  tower  and  to 
substitute white strobe lighting for red obstruction lighting was 
made with its belief at the  time that this change was  permitted 
without any further  regulatory involvement.  Moreover,  Haviland 
contends that its change  to white strobe  lighting was not  done 
surreptitiously  with  any  intent  to  deceive  the   regulatory 
agencies or gain some undue advantage.  In fact, argues Haviland, 
in its notification to the FAA in May 1993 of construction of its 
tower, Haviland indicated  that its structure  would be lit  with 
white lighting.  Haviland  states that  it believed  at the  time 
that this was all it was required to do.  Haviland adds that  its 
change did not  result in  a compromise  in aeronautical  safety.  
Haviland states  that  it  has  now  learned  that  while  medium 
intensity white strobe lighting  may be substituted for  painting 
and red obstruction  lighting, this  substitution requires  prior 
coordination with  the FAA  and the  FCC.  Haviland  argues  that 
following receipt  of the  NAL,  it referred  the matter  to  its 
counsel when it first learned of the requirement of  coordination 
with the FAA  and FCC prior  to making such  a change.   Haviland 
states that its  counsel promptly submitted  a formal request  to 
the FAA for  authorization to  utilize white  strobe lighting  in 
lieu of painting and red obstruction lighting.  

     5.   Next, Haviland  argues  that Section  17.17(a)  of  the 
Rules implies a grandfathering of  tower marking and lighting  as 
it existed prior to July  1, 1996.  According to Haviland,  under 
this interpretation  of  Section  17.17(a),  it  may  retain  its 
existing white strobe lighting without penalty since neither  the 
overall structure height  nor the site  coordinates have  changed 
since the tower was built,  consistent with the apparent  wording 
of the  Rule.  Haviland  also  argues that  all of  the  downward 
adjustment criteria apply, and  consequently, a reduction in  the 
forfeiture amount  is  warranted.3   Based on  its  statement  of 
facts, contends Haviland, the only violation in this case is  its 
failure in 1993 to file the  required forms with the FAA and  FCC 
to coordinate  the  change  from  painting  and  red  obstruction 
lighting  to  medium  intensity  white  strobe  lighting.   Thus, 
Haviland states  that  this  is  the only  offense  for  which  a 
forfeiture should be considered.  With respect to the finding  in 
the NAL that there was no ASR number visible at or near the  base 
of the tower,  Haviland states  that the placard  which had  been 
secured to the tower apparently blew away in a storm several days 
before the inspection.  Haviland  indicates that it  subsequently 
secured a new placard  to the tower.4  In  its supplement to  the 
response to the  NAL, Haviland  reports that the  FAA issued  the 
formal clearance on July, 17, 2002, for Haviland to utilize white 
strobe lighting instead of painting and red obstruction lighting.  
Haviland also  states  that  its  corresponding  application  for 
modification of its tower's ASR was filed with the Commission  on 
August 16,  2002, and  was  granted on  the same  day.   Haviland 
requests  that  the  Commission   take  into  consideration   its 
immediate actions  once  it  became  aware  of  the  ``regulatory 

                         III.   DISCUSSION

     6.   The 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).   In 
examining Haviland's  response, and  supplement thereto,  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

     7.   We agree that the forfeiture amount should be  reduced.  
We note,  however, that  Haviland failed  to paint  its tower  as 
prescribed by the ASR  and FAA records on  file for its tower  at 
the time  of the  inspection.  We  therefore find  that  Haviland 
violated Section 17.21  of the  Rules.  We note  also that  after 
filing the appropriate FCC and  FAA forms, the licensee  received 
the necessary  approval to  utilize  the medium  intensity  white 
strobe  lighting  in  lieu  of  the  required  painting  and  red 
obstruction lighting.  Given the facts of this case, specifically 
Haviland's belief that the medium intensity white strobe lighting 
was an acceptable  alternative and  the pro forma  nature of  the 
approval of  the  alternative  lighting,  we  conclude  that  the 
licensee's failure to paint  the tower was  a minor violation  of 
Section 17.21 of the Rules.8  We conclude also that the violation 
resulted more from  the licensee's failure  to file the  required 
FCC and  FAA  forms.  We  will  therefore reduce  the  forfeiture 
amount to $3,000, which is consistent with the forfeiture  amount 
for failure to file required forms or information.  However, with 
respect to  Haviland's assertion  that the  forfeiture should  be 
reduced on the basis of its inability to pay, it does not  submit 
any financial documentation from which we can assess its  ability 
to pay.  Thus, we decline to reduce the forfeiture amount on this 
basis.  Finally, Haviland requests  that we consider its  history 
of overall compliance.   We will  do so, and  further reduce  the 
forfeiture amount to $2,500.

                       IV.  ORDERING CLAUSES

     8.   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,9 Haviland IS LIABLE  FOR A MONETARY FORFEITURE in  the 
amount of two thousand five hundred dollars ($2,500) for  failure 
to exhibit the  prescribed painting on  its antenna structure  in 
willful violation of Section 17.21 of the Rules.

     9.   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.10  
Payment shall 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. 
200232560009 and  FRN 0005-0815-67.   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. 20554.11

     10.  IT IS FURTHER ORDERED that, a copy of this Order  shall 
be sent by Certified Mail, Return Receipt Requested, to  Haviland 
Telephone Co., Inc., P.O.  Box 308, Haviland, Kansas  67059-0308, 
and  to   its  counsel,   Harold  Mordkofsky,   Esq.,   Blooston, 
Mordkofsky, Dickens, Duffy  & Prendergast, 2120  L Street,  N.W., 
Washington, DC 20037.


                         David H. Solomon
                         Chief, Enforcement Bureau


1 47 C.F.R.  17.21.
2 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200232560009 (Enf. Bur.,  Kansas City Office,  released June  13, 
3 See note  to 47  C.F.R.  1.80(b)(4)  (The downward  adjustment 
criteria  are:   minor   violation,  good   faith  or   voluntary 
disclosure, history of overall compliance, and inability to pay).
4 We note  that no  forfeiture was assessed  for this  violation.  
Accordingly, we  see  no  need to  further  address  this  matter 
5 47 U.S.C.  503(b)(2)(D).
6 47 C.F.R.  1.80.
7 47 U.S.C.  503(b)(2)(D).
8 In  light  of  our  decision,  we  need  not  reach  Haviland's 
arguments regarding Section 17.17(a).
9 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
10 47 U.S.C.  504(a).
11 See 47 C.F.R.  1.1914.