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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Business Cell Systems ) File Number EB-02-AT-415
Owner of Antenna Structure #1216842 near Tellico ) NAL/Acct.
No. 200332480015
Plains, Tennessee ) FRN: 0005-8658-60
Athens, Tennessee )
FORFEITURE ORDER
Adopted: July 23, 2004 Released: July 27, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000) to Business Cell Systems (``Business Cell''), owner of
antenna structure #1216842, for willful and repeated violation of
Section 17.51(b) of the Commission's Rules (``Rules'').1 The
noted violation involves failure to continuously exhibit all
medium intensity obstruction lighting during daylight hours.
2. On January 23, 2003, the Commission's Atlanta Field
Office (``Atlanta Office'') released a Notice of Apparent
Liability for Forfeiture (``NAL'') to Business Cell in the amount
of ten thousand dollars ($10,000).2 Business Cell filed a
response on February 4, 2003.
II. BACKGROUND
3. On November 19 and 21, 2002, in response to a
complaint of an unlit tower, an agent of the Atlanta Office
inspected the antenna structure associated with FCC antenna
structure registration (``ASR'') #1216842 located near Tellico
Plains, Tennessee. At the times of inspection, 9:30 a.m. on
November 19, 2002, and 2:30 p.m. on November 21, 2002, the
unpainted structure had no white obstruction lighting in
operation.
4. On November 21, 2002, an agent of the Atlanta Office
determined from the Commission ASR database that antenna
structure #1216842 was registered to Business Cell and that the
registration included requirements to maintain medium intensity
obstruction lighting during daytime and nighttime hours. The FCC
agent telephoned the nearest Flight Service Station of the
Federal Aviation Administration (``FAA''), which verified that it
had received no report of a light outage for this antenna
structure.
5. 5. On December 4, 2002, the agent of the Atlanta
Office contacted Business Cell via telephone. Business Cell's
owner indicated that he was unaware of the outage. Upon
notification by the FCC, the structure was inspected on December
4 by Business Cell to confirm the lighting outage. Business
Cell states that its inspection revealed that the control board
in the strobe control pack and the alarm relay had been blown
apart, which prevented the strobes from working and also
prevented an alarm from being sent to notify the alarm center of
the outage.
6. 6. In its response to the NAL, Business Cell does not
challenge the finding of the NAL and admits that no medium
intensity obstruction lighting was operating at the time of
inspection. Business Cell appears to deny that it willfully
violated Section 17.51(b) of the Rules, claiming the lighting
outage was caused by an ``act of God'' outside its control.
Business Cell also states that it took a number of post-
Commission inspection repair actions and also seeks forbearance
by generally requesting that the Commission give it ``any help
you can give on this matter.''
7. 7. Further, Business Cell describes in detail the
alarm system it uses to monitor for light outages. Business Cell
indicates that its system monitors the lights and sends an alarm
using cell radio technology. Additionally, Business Cell states
that if an alarm system failed to check in once every 24 hours it
would be notified.
III. DISCUSSION
8. 8. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),3 Section 1.80 of the Rules,4
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.5 In examining Business Cell'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 such other matters
as justice may require.6
9. Section 17.51(b) of the Rules requires that all medium
intensity obstruction lighting be exhibited continuously unless
otherwise specified. Business Cell's antenna structure #1216842
is required to exhibit medium intensity obstruction lighting
during daylight hours and at night. At the times of inspection
on November 19 and 21, 2002, no medium intensity obstruction
lighting was observed operating on Business Cell's antenna
structure #1216842. Business Cell had not notified the FAA of
the light outage.7 Additionally, the owner of Business Cell
states that he was unaware that the strobes were not operating
until December 4, 2002, when the FCC agent contacted him.
10. 10. The owner of Business Cell does not dispute that he
did not know that the medium intensity obstruction lights were
not operational from at least November 19, 2002, until December
4, 2002 when the FCC agent notified him. Business Cell argues,
however, that the lighting outage was the result of a ``lightning
strike that was unbelievable'' and implies that an ``act of God''
should be a mitigating fact warranting reduction or rescission of
the forfeiture and that the violation was not willful.
11. 11. Section 17.47 of the Rules8 requires that the owner
of an antenna structure observe the antenna structure's lights at
least once every 24 hours, either visually or by observing an
automatic properly maintained indicator designed to register any
failure of the lights. Alternatively, the owner may use an
automatic alarm system that is properly maintained and designed
to detect any failure of the lights and to provide indication of
such failure to the owner. Business Cell states that it used an
automatic alarm system to monitor the lighting on its towers and
that the system is designed to use a cellular radio system to
relay a message to it if the lights failed. Additionally,
Business Cell states that the system would notify it if the unit
did not check in with the cell system within 24 hours. Business
Cell does not explain, however, why in this instance it was not
notified that the alarm system had failed for more than two weeks
after the lights were out. In fact, the President of Business
Cell states that the first indication he received that the lights
were not operational was when the FCC agent contacted him. Nor
does Business Cell provide any evidence that it properly
maintained its automatic alarm system since installing it.
Accordingly, it does not appear, based on the record before us,
that Business Cell had properly inspected or maintained the
automatic alarm system prior to the FCC notification as required
by Section 17.47. Thus, even assuming that the lightning strike
caused the outage, we conclude that Business Cell willfully
violated the rule.9
12. 12. Business Cell states that the tower lighting outage
was quickly corrected once it was informed of it because of the
Commission inspection. Business Cell's remedial actions to
correct the problem subsequent to notification of the violation
do not mitigate the violation.10 It is well established that
``corrective action taken to come into compliance with Commission
rules or policy is expected, and does not nullify or mitigate any
prior forfeitures or violations.''11
13. 13. Business Cell also states that this is the first
time its system has not been in compliance with the Commission's
Rules. To the extent this constitutes a claim for overall
compliance, our review of the Commission's records confirms that
Business Cell has not previously been found to have violated the
Rules.
14. Based on the evidence before us, we find Business Cell
willfully12 and repeatedly13 violated Section 17.51(b) of the
Rules by failing to continuously exhibit medium intensity
obstruction lighting during daylight hours. Considering the
entire record and the factors listed above, we find that
reduction of the proposed forfeiture is warranted because of the
compliance record of Business Cell with the Commission's Rules.
Accordingly, the forfeiture amount is reduced from ten thousand
dollars ($10,000) to eight thousand dollars ($8,000).
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act14, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's Rules15, Business Cell, IS LIABLE FOR A MONETARY
FORFEITURE in the amount of eight thousand dollars ($8,000) for
its willful and repeated violation of Section 17.51(b) of the
Rules.
15. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's Rules16 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.17 Payment may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995
or 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 the NAL/Acct. No.
200332480015, and FRN: 0005-8658-60 referenced above. Requests
for full payment under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.18
16. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent by Certified Mail, Return Receipt Requested,
and First Class Mail to Business Cell Systems, P.O. Box 1374,
Athens, TN 37371.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
11. 47 C.F.R. § 17.51(b).
21. Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 200332480015 (Enf. Bur., Atlanta Office, released January 23,
2003).
31. 47 U.S.C. § 503(b).
41. 47 C.F.R. § 1.80.
51. 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999).
61. 47 U.S.C. § 503(b)(2)(D).
71. The owner of any registered antenna structure must
report immediately to the nearest flight service station of the
FAA any observed or otherwise known extinguishment or improper
functioning of any flashing obstruction light not corrected
within 30 minutes. See 47 C.F.R. § 17.48(a).
81. 47 C.F.R. § 17.47.
91. See Professional Communications, Inc., DA 04-1600,
EB-02-KC-806 (Enf. Bur. 2004).
10 See Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); AT&T
Wireless Services, Inc., 17 FCC Rcd 21866,
1. 21871 (2002).
111. Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099
(1994).
121. 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', when used with reference to the commission or
omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to
violate any provision of this Act . . . .'' See Southern
California Broadcasting Co., 6 FCC Rcd 4387-88 (1991).
131. The term ``repeated,'' when used with reference
to the commission or omission of any act, ``means the commission
or omission of such act more than once or, if such commission or
omission is continuous, for more than one day.'' 47 U.S.C. §
312(f)(2).
141. 47 U.S.C. § 503(b).
151. 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
161. 47 C.F.R. § 1.80.
171. 47 U.S.C. § 504(a).
181. See 47 C.F.R. § 1.1914.