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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-01-NF-276
Tidewater Communications, Inc. ) NAL/Acct. No.
200232640001
Chesapeake, Virginia ) FRN: 0003-3044-
90
MEMORANDUM OPINION AND ORDER
Adopted: March 24, 2003 Released:
March 26, 2003
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Memorandum Opinion and Order (``Order''),
we grant Tidewater Communications, Inc.'s (``Tidewater'')
petition for reconsideration of a Forfeiture Order1 we
issued imposing a $10,000 forfeiture assessment against
Tidewater for willfully violating Section 17.51(a) of the
Commission's Rules (``Rules'').2 The noted violation
involves Tidewater's failure to light its Windsor, Virginia
antenna structure.3 On June 11, 2002, Tidewater filed a
petition for reconsideration of the Forfeiture Order. As
explained below, we cancel the $10,000 forfeiture.
II. Background
2. On November 6, 2001, the Commission's Norfolk,
Virginia Resident Agent Office (``Norfolk Office'') received
information originating from a Navy pilot's report that
there was an unlit antenna structure in Windsor, Virginia.
After confirming this report by visual inspection on the
same day, a Resident Agent from the Norfolk Office
ascertained that Tidewater was the owner of the antenna
structure.
3. On November 16, 2001, the Norfolk Office issued a
Notice of Violation to Tidewater for the antenna structure
lighting violation. Subsequently, on December 12, 2001, the
Norfolk Office issued a Notice of Apparent Liability for
Forfeiture (``NAL''), finding Tidewater apparently liable
for a forfeiture in the amount of $10,000 for willfully
violating Section 17.51(a) of the Rules.4 On May 13, 2002,
we issued a Forfeiture Order to Tidewater, which it now
challenges. III. Discussion
4. Tidewater does not contest that its antenna
structure was unlit. Instead, as it did below, Tidewater
contends that its automatic antenna structure light system,
which includes an alarm, malfunctioned. Thus, according to
Tidewater, its violation was not willful. We rejected this
position below for, among other reasons, Tidewater's failure
to present any evidence of its antenna structure inspection
routine.5
5. Now, Tidewater submits a statement from its Chief
Engineer, made under the penalty of perjury, regarding its
antenna structure inspection routine. According to the
Chief Engineer, he was at the antenna structure site two
days before the light outage. While performing his weekly
maintenance duties, he inspected the tower light
extinguishment alarm system and found no malfunctions.
6. Having a more complete record before us, we find
that, in this instance, Tidewater acted in good faith. The
basis for our decision rests on the Chief Engineer's
statement, made under the penalty of perjury, coupled with
the report from Tidewater's independent contractor showing
that the alarm failure stemmed from a faulty monitor printed
circuit board. Furthermore, we concur with Tidewater when
it argues that in imposing the forfeiture amount we
erroneously found that it did not have a history of overall
compliance. The potential blemish on Tidewater's record
stems from an Equal Employment Opportunity rule violation,6
the substantive basis for which, at a later date, the U.S.
Court of Appeals for the D.C. Circuit found
unconstitutional.7 Consequently, in an unpublished
decision, the Chief of the Commission's former Mass Media
Bureau (now Media Bureau), rescinded Tidewater's forfeiture
for the violation.8 Applying the two downward adjustment
criteria to this case (good faith and history of overall
compliance),9 we find sufficient reason to cancel
Tidewater's $10,000 forfeiture.
IV. Ordering Clauses
7. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act and Sections 1.80(i) and 1.106 of the
Rules,10 Tidewater's petition for reconsideration IS GRANTED
and the $10,000 forfeiture is IS CANCELLED.
8. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to Tidewater Communications, Inc., 870
Greenbrier Circle, Suite 399, Chesapeake, Virginia, and to
its counsel, Gary S. Smithwick, Esq., Smithwick & Belendiuk,
P.C., 5028 Wisconsin Avenue, N.W., Suite 301, Washington,
D.C. 20016.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Tidewater Communications, Inc., 17 FCC Rcd 8586 (Enf. Bur.
2002).
2 47 C.F.R. § 17.51(a).
3 Antenna Structure Registration number 1028287.
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232640001 (Enf. Bur., Norfolk Office rel. Nov. 16, 2001).
5 Tidewater Communications, Inc., 17 FCC Rcd at 8588.
6 Tidewater Communications, Inc., 12 FCC Rcd 11,830 (1997),
rescinded by, Memorandum Opinion & Order, File Nos. BR-
950530UZ, BRH-950530UT, BRH-950530US (Mass Media Bur.
adopted Oct. 20, 1999) (unpublished).
7 Lutheran Church-Missouri Synod v. F.C.C., 141 F.3d 344,
reh'g den., 154 F.3d 487, reh'g en banc denied, 154 F.3d 494
(D.C. Cir. 1998).
8 See supra n.6.
9 See 47 C.F.R. § 1.80(b)(4), Note to Paragraph (b)(4):
Guidelines for Assessing Forfeitures, Section II.
Adjustment Criteria for Section 503 Forfeitures.
10 47 U.S.C. § 405; 47 C.F.R. §§ 1.80(i), 1.106.