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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-04-DL-047
Andrews Tower Rental, Inc. )
Owner of Antenna Supporting Structure) NAL/Acct. No.
200432500006
1058251 near Brownwood, Texas )
Fort Worth, Texas ) FRN 0006139463
)
FORFEITURE ORDER
Adopted: July 29, 2004 Released: August 2,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand dollars
($6,000) to Andrews Tower Rental, Inc. (``Andrews Tower''), owner
of antenna structure 1058251 near Brownwood, Texas, for willful
and repeated violation of Section 17.50 of the Commission's Rules
(``Rules'').1 The noted violation involves Andrews Tower's
failure to clean and repaint its antenna structure to maintain
good visibility.
II. BACKGROUND
2. On February 18, 2004, an agent from the Commission's
Dallas Office (``Dallas Office'') inspected Andrews Tower's
antenna structure number 1058251. The Antenna Structure
Registration for this structure specifies that the structure must
be painted. The agent observed that the paint bands were faded,
dull, and discolored. The paint band marking had deteriorated
over time, such that the bands could not be distinguished at a
distance of one-fourth of a mile from the structure. The
deteriorated condition of the marking significantly reduced the
antenna structure visibility. The agent made additional
observations of the antenna structure on February 19 and 20,
2004.
3. On February 24, 2004 and March 3, 2004, the agent
interviewed John Andrews, Executive Vice
President, of Andrews Tower. Mr. Andrews stated
he planned to repaint the tower after some
restructuring of the tower was completed.
Construction on the tower, however, was not
scheduled to commence until after the spring storm
season.
4. On June 10, 2004, the Dallas Office issued a
Notice of Apparent Liability for Forfeiture
(``NAL'') to Andrews Tower in the amount of ten
thousand dollars ($10,000).2 Andrews Tower filed
a response to the NAL on July 9, 2004 seeking a
reduction of the proposed forfeiture based on its
efforts to comply with the Rules and the company's
nearly 50-year history of operations. Andrews
Tower asserts that it made arrangements with two
different painting companies to have the tower
repainted in 2003 but that both contractors failed
to meet their commitments. Andrews Tower then
hired a third contractor to complete the job. It
states that there is a shortage of reliable
painting crews in the area and that weather
conditions in 2003 limited when painting could be
completed safely. It also notes that Mr. Andrews
and his wife both experienced serious health
problems during 2002 and 2003, which required
lengthy hospital stays and interfered with Mr.
Andrews' ability to oversee the operations and
maintenance of the tower. Finally, Andrews Tower
states that the proposed forfeiture is its first
fine or violation from the Commission
III. DISCUSSION
·
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''),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, 12 FCC Rcd 17087 (1997),
recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture
Policy Statement''). In examining Andrews Tower'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.5
6. Section 17.50 of the Rules requires antenna
structures requiring painting to be cleaned or
repainted as often as necessary to maintain good
visibility.6 On February 18, 2004 through
February 20, 2004, Andrews Tower's antenna
structure 1058251 near Brownwood, Texas had
severely faded, dull and discolored paint, making
the bands indistinguishable at a distance of one-
fourth of a mile from the structure and resulting
in poor visibility of the structure's obstruction
markings. Andrews Tower acknowledges that the
tower needed painting at that time. We find that
Andrews Tower's violation of Section 17.50 of the
Rules was willful 7 and repeated.8
7. Andrews Tower asserts that the forfeiture should
be reduced because it placed orders to repaint the
tower in 2003 prior to the agents' inspection.
Although we do not believe that Andrews Tower's
efforts to comply are sufficient to justify
canceling the forfeiture, we do believe that those
same efforts constitute good faith on its part
that merit a reduction of the proposed
forfeiture.9
8. Finally, Andrews Tower argues the forfeiture
should be reduced because it has not received a
Notice of Forfeiture prior to this NAL. After
considering Andrews Tower's past history of
compliance, we conclude that a further reduction
of the forfeiture amount is appropriate.10
9. We have examined Andrews Tower's response to the
NAL pursuant to the statutory factors above, and
in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude
that Andrews Tower willfully and repeatedly
violated Section 17.50 of the Rules and find that,
although cancellation of the proposed monetary
forfeiture is not warranted, reduction of the
forfeiture amount to $6,000 is appropriate based
on Andrews Tower's good faith efforts to comply
and its past history of compliance with the Rules.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934,
as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules,11 Andrews
Tower Rental, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of six thousand dollars
($6,000) for willfully and repeatedly violating
Section 17.50 of the Rules.
11. 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.12 Payment shall 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
note NAL/Acct. No. 200432500006, and FRN
0006139463. 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. 20554.13
12. IT IS FURTHER ORDERED that, a copy of this Order
shall be sent by Certified Mail Return Receipt
Requested and by First Class Mail to John Andrews,
President, Andrews Tower Rental, Inc.,1420 Layton
Avenue, Fort Worth, TX, 76117.
FEDERAL COMMUNICATIONS
COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
147 C.F.R. § 17.50.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432500006 (Enf. Bur., Dallas Office, released June 10, 2004).
347 U.S.C. § 503(b).
447 C.F.R. § 1.80.
547 U.S.C. § 503(b)(2)(D).
647 C.F.R. § 17.50.
7Section 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).
8As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
9See Radio One Licenses, Inc., 18 FCC Rcd 15964 (2003).
10See South Central Communications Corp., 17 FCC Rcd 22701 (Enf.
Bur. 2002).
1147 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1247 U.S.C. § 504(a).
13See 47 C.F.R. § 1.1914.