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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
C. Elton Crews, Inc. ) File No. EB-02-TP-382
Owner of Antenna Structure # 1204823 in ) NAL/Acct. No.
Avon Park, Florida )
) FRN 0006-6405-10
Adopted: May 3, 2004 Released: May 6, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand
dollars ($8,000) to C. Elton Crews, Inc. (``Crews'') for
willful violation of Section 17.51(b) of the
Commission's Rules (``Rules'').1 The violation involves
Crews' failure to continuously exhibit all medium
intensity obstruction lighting on its tower during
2. On October 29, 2002, the Commission's Tampa, Florida
Field Office (``Tampa Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Crews for
a forfeiture in the amount of ten thousand dollars
($10,000).2 Crews filed its response to the NAL on
November 26, 2002.
3. Antenna structure #1204823 is located at 27º 33' 38''
latitude, 081º 29' 36'' longitude (Avon Park, Florida)
and is registered to Crews. The antenna structure
registration (``ASR'') includes a requirement to
maintain a dual lighting system that includes medium
intensity obstruction lighting during daylight
operation. At 1:55 p.m. on July 26, 2002, two agents
from the Tampa Office inspected antenna structure
#1204823. During that inspection, the agents observed
that there was no white medium intensity obstruction
lighting on the tower, thus, none was in operation,
although the nightly required red beacon lighting was
present.3 The agents further observed that the cables
on the southwest side of the tower obstructed the
tower's visibility. On September 25, 2002, a Tampa
Office agent telephoned and spoke to Crews' owner, Mr.
C. Elton Crews, who stated that to his knowledge, no
daylight strobe lights had ever been exhibited on the
4. On October 29, 2002, the Tampa Office issued a NAL to
Crews for the violation observed on July 26, 2002.
Crews replied to the NAL on November 26, 2002, and did
not dispute the facts set forth in the NAL. Crews
stated that it was unaware of the full array of lighting
requirements to which it is subject. Crews further
asserted that the Commission failed to consider its
inability to pay and past record of compliance in
issuing the NAL and asked that the NAL be cancelled or
substantially reduced.4 In support thereof, Crews
submitted its tax returns from the years 2001, 2000 and
1999 and stated that it had never been cited for any
violation of Commission rules.
5. The proposed 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) (``Policy Statement''). In examining
Crews 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 such
other matters as justice may require.7
6. Section 17.51(b) of the Rules requires that all medium
intensity obstruction lighting be exhibited continuously
unless otherwise specified. The Federal Aviation
Administration (``FAA'') Study (99-ASO-0326-OE) which
Crews referenced when registering its antenna structure,
specified lighting requirements for Crews' tower which
includes medium intensity lighting.8 On July 26, 2002,
the agents observed that medium intensity lighting was
neither installed nor operative. The agents'
observations of the tower were made during the daylight
hours and only the evening hours red beacon was
observed. Crews does not dispute these facts.
Accordingly, we find that Crews willfully violated
Section 17.51(b) of the Rules by failing to exhibit
medium intensity obstruction lighting on its tower.9
7. Crews' request for reduction of the forfeiture based on
an inability to pay claim is accompanied by its tax
returns from 1999 through 2001. In analyzing economic
hardship claims, as the Policy Statement explains, the
Commission generally looks to a company's gross revenues
as reasonable and appropriate yardsticks to determine
its ability to pay the assessed forfeiture.10 Indeed,
the Commission stated that if a company's gross revenues
are sufficiently large, the fact that net losses are
reported, alone, does not necessarily signify inability
to pay.11 In the instant case, we have carefully and
independently reviewed Crews' submissions. We find that
Crews' tax returns for 1999, 2000 and 2001 reveal that
its gross revenues effectively negate the financial
hardship claim. Specifically, we find that the $10,000
forfeiture is not excessive under Commission
precedent.12 Accordingly, we are not persuaded by
Crews' financial hardship claim, and we find that there
is no basis to reduce the assessed forfeiture amount due
to inability to pay. However, Crews' assertion is
correct that it has no previous citations, and as a
result we reduce the forfeiture amount to $8,000 based
on its history of overall compliance.
8. We have examined Crews' 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 Crews willfully violated Section 17.51(b)
of the Rules. However, we find a sufficient basis to
reduce the $10,000 forfeiture to $8,000.
9. Because Crews fails to provide information detailing
its efforts to correct the noted lighting violation, we
will require, pursuant to Section 308(b) of the Act,13
that Crews report to the Enforcement Bureau within
thirty (30) days of the release of this Order whether it
has achieved compliance with Section 17.51(b) of the
Rules. Crews' report must be submitted in the form of
an affidavit signed by an officer or director of the
licensee. If Crews fails to submit such a report or we
find that Crews has not come into compliance with
Section 17.51(b), we will consider further appropriate
IV. ORDERING CLAUSES
10. 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,14 Crews IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eight thousand
dollars ($8,000) for failure to light the captioned
antenna structure, in willful violation of Section
17.51(b) of the Rules.
11. IT IS ALSO ORDERED that, pursuant Section 308(b) of the
Act, Crews must submit the report described in Paragraph
9, above, within 30 days from the release of this Order,
to: Federal Communications Commission, Enforcement
Bureau, Spectrum Enforcement Division, 445 12th Street,
S.W., Room 7-A 820, Washington, D.C. 20554, Attention:
Peter Waltonen, Esquire.
12. 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.15 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. 200332700004 and FRN 0006-6405-
10. 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. 20554.16
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to C. Elton Crews, Inc., P.O. Box 1117, Avon
Park, FL 33826-1117 and its Counsel, Russell H. Fox,
Esq., Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C., 701 Pennsylvania Avenue, N.W., Suite 900,
Washington, D.C., 20004..
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 17.51(b).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332700004 (Enf. Bur., Atlanta Office, released October 29,
3 We note that the agents further observed that the cables on
the southwest side of the tower obstructed the tower's
visibility, but, the NAL did not include a violation of Section
17.23,of the Rules, 47 C.F.R. § 17.23.
4 Crews states that it is taking measures to ensure compliance
with the Commission's painting requirements, but fails to comment
on its remedial efforts with respect to its violation of the
Commission's lighting requirements.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 Based on the medium intensity obstruction lighting required
by both Crews' FAA Study and ASR, we find Crews' claim that it
was unaware of the lighting requirements to be without merit.
9 Section 312 (f)(1) of the Act, 47 U.S.C. § 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).
10 See Forfeiture Policy Statement, 12 FCC Rcd at 17106-07, ¶
43. See also PJB Communications of Virginia, Inc., 7 FCC Rcd
2088, 2089, ¶ 8 (1992).
11 See, e.g., Local Long Distance, Inc., 15 FCC Rcd 24385
(2000), recon. denied, 16 FCC Rcd 10023, 10025, ¶ 6 (2001);
Independent Communications, Inc., 14 FCC Rcd 9605 (1999), recon
denied, 15 FCC Rcd 16060, ¶ 2 (2000); Hoosier Broadcasting Corp.,
14 FCC Rcd 3356 (CIB 1999), recon. denied, 15 FCC Rcd 8640, 8641,
¶ 7 (Enf. Bur. 2000). See also, Alpha Ambulance, Inc., 19 FCC
Rcd 2547 (2004).
12 See PJB Communications, at 2089(forfeiture not deemed
excessive where it represented approximately 2.02 percent of the
violator's gross revenues); Local Long Distance, Inc., 16 FCC Rcd
at 10025 (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues);
Hoosier Broadcasting Corporation, 15 FCC Rcd 8640, 8641 (Enf.
Bur. 2002) (forfeiture not deemed excessive where it represented
approximately 7.6 percent of the violator's gross revenues).
13 47 U.S.C. § 308(b)
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.