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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
William L. Needham and Lucille Needham ) File No. EB-02-
KC-198
Owners of Antenna Structure No. 1064409 ) NAL/Acct. No.
200232560008
Osage Beach, Missouri ) FRN: 0007-1278-
06
FORFEITURE ORDER
Adopted: March 24, 2003 Released: March 26,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of $10,000 to William L.
Needham and Lucille Needham (``the Needhams'') for willfully
violating Section 17.50 of the Commission's Rules
(``Rules'').1 The Needhams are the owners of the captioned
antenna structure. The noted violation involves the
Needhams' failure to clean or repaint the captioned antenna
structure as often as necessary to maintain good visibility.
2. On June 27, 2002, the Commission's Kansas City,
Missouri, Field Office (``Kansas City Office'') issued a
$10,000 Notice of Apparent Liability for Forfeiture
(``NAL'') to Lake Mobile Phone for the noted violation.2 On
July 10, 2002, William L. Needham (``Needham'') filed a
response to the NAL.3
II. BACKGROUND
3. On April 23, 2002, an agent from the Kansas City
Office inspected an antenna structure located at 1090 Bluff
Drive, Osage Beach, Missouri (Antenna Structure Registration
number 1064409). The agent observed that the antenna
structure's bands of paint were not clearly visible because
of fading paint, the chipping of the structure's white paint
and black cables running up the legs of the structure. As a
result of this investigation, the Kansas City Office issued
the above-referenced NAL on June 27, 2002.
4. In his response to the NAL, Needham asserts that
he is very serious about tower maintenance and has
maintained a painting schedule for the Osage Beach tower
since it was constructed in 1975. He also asserts that,
prior to the inspection, he had decided to accelerate the
painting schedule because the placement by other users of
black cables which partially obscured the painted bands.
Needham further asserts that: he had no difficulty seeing
the tower or discerning its painted bands at a distance of
one half mile from the tower; in his opinion, the tower was
not in dangerous or hazardous condition; and the agent's
report was ``subjective.'' However, Needham agrees that the
tower's painting was ``nearing the end of it normal life and
would need replacement soon.'' Finally, Needham asserts
that, after being informed that the tower was noncompliant,
he had it repainted between May 17 and 25, 2002.
III. DISCUSSION
5. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),4 Section 1.80 of the Rules,5
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 Needham'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.6
6. Section 17.50 of the Rules provides that antenna
structures requiring painting shall be cleaned or repainted
as often as necessary to maintain good visibility. Nothing
in Needham's response to the NAL warrants overturning the
agent's determination that the tower's painted bands were
not clearly visible because of the poor condition of the
paint. We, therefore, find that the Needhams violated
Section 17.50 of the Rules. Needham asserts that he did not
believe the condition of the tower's paint required
repainting. He was, therefore, aware of the condition of
the paint but chose not to repaint the tower. We find that
the Needhams' violation of Section 17.50 was willful.7
7. We have examined Needham'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 the Needhams willfully violated
Section 17.50 of the Rules, and we find no basis to rescind
or reduce the $10,000 forfeiture proposed for this
violation.
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,8 William L. Needham and Lucille
Needham ARE LIABLE FOR A MONETARY FORFEITURE in the amount
of $10,000 for willfully violating Section 17.50 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.9 Payment may be made 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 must include the FCC Registration Number
(``FRN'') referenced above, and should also note the
NAL/Acct. No. referenced above. 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. 20554.10
10. IT IS FURTHER ORDERED that a copy of this Order
shall by sent by first class and certified mail, return
receipt requested, to William L. Needham and Lucille
Needham, 1090 Bluff Drive, Osage Beach, Missouri 65065.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.50.
2 Lake Mobile Phone., NAL/Acct. No. 20023256008 (Enf. Bur.,
Kansas City Office, rel. June 27, 2002).
3 The NAL was issued to Lake Mobile Phone, which was then
the registered owner of the captioned antenna structure.
Needham, however, filed a response in which he asserts that
Lake Mobile Phone became bankrupt in 1994 and was dissolved
and that he and his wife, Lucille Needham, are now the
owners of the captioned tower. Accordingly, we accept
Needham's response to the NAL and re-caption this
proceeding.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 Section 312(f)(1) of the Act, 47 USC § 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); see also
Nan Tan Computer Co., 9 FCC Rcd 3092 (1994).
8 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.