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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Entergy Services, Inc. ) File No. EB-02-OR-259
)
Owner of Antenna Structure ) NAL/Acct. No. 200332620002
Registration Number 1020649 )
Little Rock, Arkansas ) FRN 0001-7125-87
ORDER
Adopted: February 12, 2003 Released: February 14,
2003
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent
Decree entered into between the Enforcement Bureau and Entergy
Services, Inc. (``ESI''). The Consent Decree terminates the
forfeiture proceeding initiated by the Enforcement Bureau against
ESI for apparently failing to exhibit the prescribed tower
lighting on the above-captioned antenna structure in violation of
Section 17.51(a) of the Commission's Rules.
2. The Consent Decree provides that, among other
things, ESI will implement a Compliance Plan to ensure its future
compliance with the Commission's rules and will make a $7,500
voluntary contribution to the United States Treasury.
3. Based on the record before us, we conclude that no
substantial or material questions of fact exist as to whether ESI
possesses the basic qualifications, including those related to
character, to hold or obtain any FCC license or authorization.
4. After having reviewed the record and the Consent
Decree, including the incorporated Compliance Plan, we believe
that the public interest will be served by adopting the Consent
Decree and terminating the Enforcement Bureau's forfeiture
proceeding against ESI.
5. Accordingly, IT IS ORDERED that, pursuant to
Sections 4(i), 4(j), and 503(b) of the Communications Act of
1934, as amended,1 and Sections 0.111 and 0.311 of the
Commission's Rules,2 the Consent Decree attached to this Order IS
ADOPTED.
6. IT IS FURTHER ORDERED that the Enforcement
Bureau's forfeiture proceeding against ESI IS TERMINATED.
7. IT IS FURTHER ORDERED that ESI shall make its
voluntary contribution to the United States Treasury by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 200332620002 and FRN 0001-7125-87.
8. IT IS FURTHER ORDERED that a copy of this Order
and Consent Decree shall be sent by first class mail and
certified mail, return receipt requested, to T. Michael Twomey,
Esq., Entergy Services, Inc., 639 Loyola Avenue, P.O. Box 61000,
New Orleans, Louisiana 70161-1000.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
CONSENT DECREE
I. Introduction
1. This Consent Decree is made and entered into by and
between the Enforcement Bureau of the Federal Communications
Commission (``FCC'') and Entergy Services, Inc. and its
affiliates and subsidiaries (``ESI''), which own and manage
antenna structures located in Arkansas, Louisiana, Mississippi,
and Texas.
II. Background
2. On November 6, 2002, the FCC's New Orleans, Louisiana
Field Office issued a Notice of Apparent Liability to ESI in the
amount of $10,000, stating that it appeared that ESI had violated
the provisions of 47 C.F.R. § 17.1 et seq., by failing to exhibit
the prescribed tower lighting on its antenna structure (Antenna
Structure Registration No. 1020649) located in Labadieville,
Louisiana.
3. On December 3, 2002, ESI representatives participated
in a conference call with Enforcement Bureau staff to detail
ESI's compliance efforts through that date and present the
Enforcement Bureau with ESI's Compliance Plan. The Compliance
Plan outlines the processes and procedures that ESI has been
implementing in an effort to ensure compliance with the FCC's
Rules in the future.
III. Definitions
4. For the purposes of this Consent Degree, the following
definitions shall apply:
(a) ``FCC'' means the Federal Communications
Commission.
(b) ``Bureau'' means the FCC's Enforcement Bureau.
(c) ``ESI'' means Entergy Services, Inc. and its
affiliates and subsidiaries.
(d) ``Enforcement Proceeding'' means the investigation
of the alleged rule violation by ESI culminating
in the Notice of Apparent Liability for
Forfeiture.
(e) ``Notice of Apparent Liability for Forfeiture'' or
``NAL'' means Entergy Services, Inc., File No. EB-
02-OR-259, NAL/Acct. No. 200323620002 (Enf. Bur.,
New Orleans Office, released November 6, 2002).
(f) ``FCC's Rules'' means the FCC's tower-related
rules in 47 C.F.R. § 17.1 et. seq.
(g) ``Order'' means an order of the FCC adopting this
Consent Decree.
(h) ``Final Order'' means an action by the FCC or by
its staff pursuant to delegated authority (I)
which has not been vacated, reversed, stayed, set
aside, annulled or suspended, (ii) with respect to
which no timely appeal, request for stay or
petition of rehearing, reconsideration or review
by any party or by the FCC on its own motion, is
pending, and (iii) as to which the time for filing
any such appeal, request, petition, or similar
document or for the reconsideration or review by
the FCC on its own motion under the Communications
Act of 1943, as amended, and the FCC's rules and
regulations, has expired.
(i) ``Compliance Plan'' means the processes and
procedures developed by ESI in an effort to ensure
compliance with the FCC's Rules regarding antenna
structures registered in accordance with 47 C.F.R.
§ 17.4, as summarized in an attachment to this
Consent Decree.
IV. Agreement
5. ESI and the Bureau agree to be legally bound by this
Consent Decree.
6. ESI and the Bureau agree that this Consent Decree does
not constitute an adjudication of the merits, or any finding on
the facts or law regarding any compliance or noncompliance by ESI
with the FCC's Rules arising out of the NAL. ESI and the Bureau
agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, ESI does not admit
or deny any noncompliance, violation, or liability associated
with or arising from the NAL before the date of this Consent
Decree.
7. In consideration of the actions of the Bureau
described in Paragraph 8 below:
(a) As part of its effort to ensure future compliance
with the FCC's Rules, ESI will implement the Compliance Plan,
which is summarized in an attachment hereto. The Compliance Plan
addresses ESI's field maintenance practices, monitoring
requirements, notification procedures, and record-keeping
practices relating to tower lighting. ESI may modify the
Compliance Plan as necessary to better ensure continuing
compliance with the FCC's Rules. ESI contemporaneously will
notify, in writing, the Chief, Enforcement Bureau, Federal
Communications Commission, Washington, D.C., of any modification
to the Compliance Plan. The Chief, Enforcement Bureau, may
disapprove, in writing, any such modification within 25 calendar
days of receipt of ESI's notification where it finds that the
modification is inconsistent with the terms of the Consent Decree
or the Commission's rules or policies.
(b) ESI will make a voluntary contribution to the
United States Treasury in the amount of Seven Thousand Five
Hundred Dollars ($7,500) within ten days after the Order adopting
this Consent Decree has become a Final Order. ESI will make this
contribution without further protest or recourse by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, Forfeiture Collection Section, Finance Branch, P.O.
Box 73482, Chicago, Illinois 60673-7482. The payment should
reference NAL/Acct. No. 200332620002 and FCC Registration Number
0001-7125-87.
8. In express reliance upon the covenants and representations
contained herein:
(a) The Bureau agrees to terminate the Enforcement
Proceeding at such time as both parties sign this Consent Decree
and the Bureau adopts this Consent Decree.
(b) In the absence of material new evidence concerning
the Consent Decree or the NAL that implicates ESI's basic
qualifications (e.g. disqualifying misrepresentation or lack of
candor), the Bureau will not use the fact of this Consent Decree
or the NAL or the underlying facts, behavior, acts or omissions
which relate to them, to initiate on its own motion any
proceeding against ESI.
9. In consideration for the actions taken pursuant to
Paragraphs 7 and 8, ESI and the Bureau agree to the terms,
conditions and procedures contained herein.
10. In the event that the Commission or its delegated
authority finds that ESI violates the provisions of 47 C.F.R. §
17.1 et seq. subsequent to the release of this Consent Decree and
Order, ESI agrees that the Commission or its delegated authority
may consider the matters raised in the NAL when determining an
appropriate sanction.
11. ESI agrees that the Bureau has jurisdiction over the
matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
12. ESI hereby waives its right to seek administrative or
judicial review of this Consent Decree or the Order, or otherwise
to contest or challenge their validity, provided that the Consent
Decree is adopted without change, addition, or modification.
13. ESI and the Bureau agree that the effectiveness of this
Consent Decree is expressly conditioned upon issuance of the
Order, provided that the Consent Decree is adopted without
change, addition, or modification.
14. ESI and the Bureau agree that, in the event that this
Consent Decree is rendered invalid by any court of competent
jurisdiction, it shall become null and void and may not be used
in any manner in any legal proceeding.
15. If the United States on behalf of the FCC or ESI should
bring an action to enforce the terms of this Consent Decree, the
parties agree that they will not contest the validity of the
Consent Decree, they will waive any statutory right to a trial de
novo with respect to any matter upon which the Order is based
(provided in each case that the Order is limited to adopting the
Consent Decree without change, addition, or modification) and
they will consent to a judgment incorporating the terms of this
Consent Decree.
16. Each party to this Consent Decree shall bear its own
attorney fees and costs and ESI agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, Title 5
U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating to the
matters discussed in this Consent Decree.
17. ESI agrees that any violation of this Consent Decree
shall constitute a violation of an FCC order, entitling the FCC
to exercise any rights and remedies attendant to the enforcement
of an FCC Order.
18. ESI and the Bureau agree that the terms and conditions
of Sections 7(a) of this Consent Decree shall remain in effect
for twenty-four (24) months from the effective date of this
Consent Decree, which shall be the release date of the Order and
that the terms and conditions of Section 8 shall survive the
expiration of this Consent Decree. ESI and the Bureau also agree
that any provision of this Consent Decree which conflicts with
any subsequent rule, order of general applicability, or other
decision of general applicability adopted by the FCC will be
superseded by such rule, order or other decision.
19. This Consent Decree represents the complete agreement
between the parties to the Consent Decree and supersedes any
other agreements, understandings and representations, if any.
The parties represent, warrant and agree that the provisions of
this Consent Decree are binding on each of them in accordance
with their terms, and that the signatories hereto have been
authorized by the parties to execute this Consent Decree on their
behalf. This Consent Decree may be signed in counterparts and
may be amended only by a written instrument signed by all the
parties hereto.
FEDERAL COMMUNICATIONS COMMISSION
By:___________________________________
Date:____________________________
David H. Solomon
Chief, Enforcement Bureau
ENTERGY SERVICES, INC. on behalf of itself and its affiliates and
subsidiaries
By:___________________________________
Date:____________________________
William P. Alt
Director, Infrastructure and Enterprise Services
Summary of Part 17 Compliance Plan
of
Entergy Services, Inc.
As part of its effort to ensure compliance with the
Communications Act of 1934, as amended, and the FCC's rules and
regulations, ESI has developed the following Compliance Plan:
1. A review of FAA and FCC obstruction marking and
lighting requirements has been conducted with
operational management responsible for maintaining
Entergy's tower marking and monitoring equipment to
confirm Entergy's compliance with such marking and
lighting requirements. Entergy will conduct additional
reviews to confirm its compliance with FAA and FCC
obstruction marking and lighting requirements every six
months.
2. A review of field maintenance practices for antenna
structure light monitoring systems has been completed.
Future operational checks of Entergy's automatic
monitoring system will include remote terminal unit
(``RTU'') actuation and will be formally documented
using the Entergy Information Technology work
management system. Such future operational checks will
be conducted every 90 days.
3. A review of Entergy's antenna structures has been
conducted against FAA monitoring requirements to insure
all towers are currently being adequately monitored for
light failure. Entergy will conduct additional reviews
to insure all towers are currently being adequately
monitored for light failure every six months.
4. A review of the FAA notification process for antenna
structure light failures has also been conducted. As a
result, FAA notification and tracking responsibility
will be centralized within Entergy's Network Operations
Center to insure prompt notification and correction of
any tower light failures.
5. Entergy will maintain records of all observed or
otherwise known lighting outages or improperly
functioning antenna structure lights in accordance with
Section 17.49 of the FCC's Rules. These records will
include the nature of the outage or improper
functioning; the date or time the outage or improper
functioning was observed or otherwise noted; the date
and time of FAA notification, if applicable; and the
date, time and nature of adjustments, repairs or
replacements made.
The Compliance Plan will be overseen by ESI's Director,
Infrastructure and Enterprise Services. ESI may modify the
Compliance Plan as necessary to better ensure compliance with the
FCC's Rules. ESI contemporaneously will notify, in writing, the
Chief, Enforcement Bureau, Federal Communications Commission,
Washington, D.C., of any modification to the Compliance Plan. The
Chief, Enforcement Bureau, may disapprove, in writing, any such
modification within 25 calendar days of receipt of ESI's
notification where it finds that the modification is inconsistent
with the terms of the Consent Decree or the Commission's rules or
policies.
_________________________
1 47 U.S.C. §§ 4(i), 4(j), 503(b).
2 47 C.F.R. §§ 0.111, 0.311.