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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AAT Communications Corporation ) File No.: EB-02-KC-770
) NAL/Acct. No. 200332560005
Owner of Antenna Structure ) FRN 0003-4776-76
Registration No. 1064351 Located )
One Mile North of Ellis, Nebraska )
MEMORANDUM OPINION AND ORDER
Adopted: February 9, 2004 Released:
February 11, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order") we deny
the Petition for Reconsideration filed by AAT
Communications Corporation (``AAT''). AAT seeks
reconsideration of the Forfeiture Order1 in which the
Chief, Enforcement Bureau (``Bureau''), found it
liable for a monetary forfeiture in the amount of
$10,000 for willful and repeated violation of Section
17.51(a) of the Commission's Rules (``Rules').2 The
noted violation involves AAT's failure to exhibit the
prescribed obstruction lighting on its antenna
structure.
II. BACKGROUND
2. AAT is the owner of antenna structure number 1064351,
which is located one mile north of Ellis, Nebraska. As
indicated in the Commission's antenna structure registration
(``ASR'') data base, AAT's antenna structure is required to
exhibit red obstruction lighting at night.
3. On October 3, 2002, the Commission's Kansas City,
Missouri, Field Office (``Kansas City Office'') received a
telephone message from the Federal Aviation Administration
(``FAA'') indicating that an antenna structure's red obstruction
lighting was extinguished. On October 4, an agent from the
Kansas City Office determined that AAT was the owner of that
antenna structure, number 1064351. On the same day an agent from
the Kansas City Office interviewed the pilot who reported the
lighting outage to the FAA and the owner of the tower site. The
pilot stated that, except for one light, the red obstruction
lighting had been extinguished for well over a month. The tower
site owner stated that overgrown brush and weeds around the tower
led him to believe that it had been abandoned and that all the
lights, except for one, had burned out over the last several
months.
4. On October 7, 2002, an AAT representative told an FCC
agent from the Kansas City Office that a local resident visually
monitors the tower lights and that he would check his records to
determine that person's identity. On October 11, 2002, the AAT
representative told the FCC agent that, after searching AAT's
records, he could not provide the name of ``a current reliable
monitoring contact''; he had no information about when the tower
was last inspected; and he had no record of any tower light
maintenance during the past quarter. The AAT representative also
stated that AAT had scheduled the installation of an automated
monitoring system on October 14, 2002.
5. On November 5, 2002, the District Director of the
Kansas City Office issued a Notice of Apparent Liability for
Forfeiture (``NAL'') in the amount of $10,000 to AAT.3 AAT filed
a response4 seeking cancellation or reduction of the forfeiture.
Although AAT admits violating Section 17.51(a) of the Rules, it
contends that it did not do so willfully or repeatedly. In
particular, AAT argues that the allegation that the violation was
repeated ``is based on hearsay and cannot be substantiated.''
AAT also asserts that it has corrected the violation of Section
17.51(a) has and installed an automated light monitoring system
to avoid future violations.
III. DISCUSSION
6. Section 17.51(a) of the Rules requires that AAT's red
obstruction lighting be exhibited between sunset and sunrise.
AAT admits violating Section 17.51(a) but not that the violation
was repeated. AAT's repetition of its violation of Section
17.51(a) is well documented. Our finding is based on our
interview of the pilot, who had personally observed the violation
for well over a month, and the tower site owner, who had observed
the violation for the last several months. We believe, in this
instance, the use of eyewitness interviews is an acceptable
evidentiary method for establishing the repetition of this
violation. Both the complainant, who is a pilot, and the
property owner have first hand knowledge of the lighting outage;
both observed the outage for a lengthy period; and neither has
any apparent reason to be untruthful. The complainant's and the
property owner's statements are credible and corroborate each
other. Accordingly, we reject AAT's argument that the alleged
repetition of the violation ``is based on hearsay and cannot be
substantiated''5 and find that AAT repeatedly violated Section
17.51(a).6
7. Section 503(b) of the Act gives the Commission
authority to assess a forfeiture penalty against any person if
the Commission determines that the person has ``willfully or
repeatedly'' failed to comply with the provisions of the Act or
with any rule, regulation or order issued by the Commission. In
view of our determination that the violations are repeated, it is
unnecessary to determine whether they are also willful.7
8. No mitigation is warranted on the basis of AAT's
correction of the violation and its installation of an automated
monitoring system to avoid future violations. As the Commission
stated in Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994),
``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.'' 8
9. We have examined AAT'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
AAT repeatedly violated Section 17.51(a) of the Rules and find no
basis for cancellation or reduction of the $10,000 monetary
forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act9 and Section 1.106 of the Rules,10 AAT's petition
for reconsideration of the February 4, 2003, Forfeiture Order IS
DENIED.
11. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules11 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. 200332560005 and FRN 0003-4776-76. 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. 20554.13
12. IT IS FURTHER ORDERED THAT a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to AAT Communications Corporation, Woodbridge
Place, 517 Route 1 South, Suite 5000, Iselin, New Jersey 08830.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 AAT Communications Corporation, 18 FCC Rcd 1490 (Enf.
Bur. 2002).
2 47 C.F.R. § 17.51(a).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332560005 (Enf. Bur., Kansas City Office, released November 5,
2002).
4 AAT's response to the NAL was received at the Commission's
mail facility on December 9, 2002, but was not received by the
Bureau until February 8, 2003 (apparently because of misrouting).
On February 4, 2003, the Bureau released a Forfeiture Order
indicating that AAT had not responded to the NAL and affirming
the monetary forfeiture proposed by the NAL. On February 28,
2003, AAT filed a response stating that AAT did respond to the
NAL and attaching a copy of that response. We are construing
AAT's response as a petition for reconsideration of the
Forfeiture Order.
5 See Andrew R. Yoder, 9 FCC Rcd 6927, 6927 (1994) (argument
that finding is based on unacceptable hearsay evidence rejected
where liability based on documented uncontroverted evidence).
6 As 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).
7 Koke, Inc., 23 FCC 2d 191 (1970).
8 See also Callais Cablevision, Inc., 17 FCC Rcd 22626,
22629 (2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259
(1973); and Executive Broadcasting Corp., 3 FCC 2d 699, 700
(1966).
9 47 U.S.C. § 405.
10 47 C.F.R. § 1.106.
11 47 C.F.R. § 1.80.
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.