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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Aquila, Inc. ) File Number EB-04-KC-019
Owner of Antenna Structure No. ) NAL/Acct. No. 200432560004
1045708 ) FRN: 0002-5060-53
In Lee's Summit, Missouri
Kansas City, Missouri
FORFEITURE ORDER
Adopted: November 9, 2004 Released: November
15, 2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a monetary
forfeiture in the amount of ten thousand dollars ($10,000) to
Aquila, Inc. (``Aquila'') for repeated violation of Section
17.51 of the Commission's Rules (``Rules'').1 The noted
violation involves Aquila's failure to exhibit lighting from
sunset to sunrise on its Lee's Summit, Missouri antenna
structure.
2. On March 5, 2004, the Commission's District Director of the
Kansas City, Missouri Office (``Kansas City Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL''),2
finding Aquila apparently liable for a forfeiture in the
amount of $10,000 for repeated violation of Section 17.51 of
the Rules. On April 5, 2004, Aquila filed a response
(``Response'').
II. BACKGROUND
3. On February 3, 2004, an agent from the Kansas City Office
observed an antenna structure in Lee's Summit, Missouri, at
approximately 6:00 PM that was painted but had no operational
lighting. On February 4, 2004, the agent observed the
structure's posted Antenna Structure Registration (``ASR'')
No. 1045708 and ascertained that the antenna structure
belonged to Aquila. The tower's height is 67 meters above
ground level and located at N38º 56' 17'' and W94º 23' 49''.
The structure's ASR requires it to be painted and have red
lighting exhibited from sunset to sunrise. The Federal
Aviation Administration (``FAA'') had no light outage reported
for any structure in Lee's Summit, Missouri as of February 4,
2004.
4. On February 5, 2004, at approximately 6:45 PM the agent
again observed the structure with no operational lighting.
The agent confirmed that the FAA had no record of receiving a
notice on that date of a tower outage for tower No. 1045708 in
Lee's Summit, Missouri. The agent reported the outage to the
FAA on February 5, 2004.
5. On February 6, 2004, the agent interviewed Mr. Larry
Baldwin, a representative of Aquila, in a telephone
conversation. Mr. Baldwin confirmed that Aquila owned the
tower.3 Mr. Baldwin stated that the structure had an
automatic alarm system. He stated further that he was not
aware of the light outage and that no alarm alerting Aquila to
the light outage had been received. Following the initial
contact with the agent, Mr. Baldwin telephoned the agent
several hours later and stated that the light outage was due
to a bad photo cell in the alarm system. Mr. Baldwin
explained that when the photo cell is operative, the alarm
system checks for current in the light wiring, but, does not
do so when the photo cell is off or non-functional. Thus, the
alarm system does not alert if there is a malfunctioning photo
cell. The agent asked Mr. Baldwin how long the system had
been inoperative and Mr. Baldwin replied less than a week.4
Mr. Baldwin was informed in the conversation that the agent
had notified the FAA regarding the outage on February 5, 2004.
6. On March 5, 2004, the Kansas City Office issued an NAL
for the Section 17.51 violation. In its April 5, 2004
response to the NAL, Aquila states, that within three hours of
learning of the outage from the Commission's agent the tower-
light controller was repaired and the lights were functioning
correctly. Further, Aquila claims that the antenna
structure's lights are monitored automatically on a 24 -hour-
a-day, seven-day-a-week basis and that alarms are transmitted
to tower operators on a real time basis. Aquila claims that
due to a malfunctioning photocell, the alarm did not indicate
the lighting outage.
7. Aquila argues that its good faith actions and its tower
compliance program warrant a reduction or cancellation of the
forfeiture. Citing Tidewater Communications, Inc.5
(``Tidewater) in support, Aquila submits its lack of intent to
violate the rules, its immediate corrective actions, the lack
of public harm, its tower compliance program and its long
history of overall compliance.
III. DISCUSSION
8. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended (``Act''),6 Section 1.80 of the Rules,7 and
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.8 In examining Aquila'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.9
9. Pursuant to Section 17.51 of the Rules, a tower is required
to exhibit all red obstruction lighting from sunset to sunrise
unless otherwise specified.10 Aquila was required to exhibit
red obstruction lighting and failed to do so from February 3
through February 5, 2004. Accordingly, Aquila repeatedly
violated Section 17.51 of the Rules.
10. Aquila asserts that Tidewater11 is controlling in the
instant case. We disagree. In Tidewater the licensee
provided a sworn declaration describing the station's
compliance program, the antenna structure inspection routine,
and noted that its internal inspection was two days prior to
the outage and found no malfunctions. Mr. Baldwin's sworn
declaration addressed none of the Tidewater factors.
Accordingly, we find that Tidewater is inapposite.
11. While Aquila does not contest that the antenna structure
lights were unlit from February 3 through 5, 2004, it argues
that its violation of Section 17.51 of the Commission's Rules
was not willful. However, we need not address the issue of
willfulness because the NAL did not allege willfulness and.
Aquila admits the repeated12 nature of the violation.13
12. Finally, we reject Aquila's mitigation arguments which seek
to reduce the proposed $10,000 forfeiture. The base
forfeiture amount for violation of Section 17.51 is $10,000.14
Aquila presents no showing of factors sufficient to warrant a
forfeiture reduction. To the extent that Aquila seeks a
reduction based on good faith, good faith occurs when a
licensee notices a violation and attempts to remedy it before
the Commission conducts its inspection,15 or, it provides
evidence of an established compliance program in place, prior
to the Commission's involvement.16 Aquila meets neither
standard. Aquila fails to demonstrate that it discovered the
violation and attempted to remedy it before the Commission
inspection. Additionally, Aquila failed to provide a sworn
statement with substantiating documentation from a person
having personal knowledge of an actual inspection program, the
inspection frequency and the nature of the inspections of the
automatic alarm system. Further Aquila's assertion of a lack
of public harm can not mitigate its violation.17 Nor does
Aquila's quick remedial action taken to correct the violation
after being put on notice by the agent mitigate the
violation.18 Moreover, Aquila admits in its April 5, 2004
response that it was issued a Notice of Violation in November
2001 regarding painting requirements for its Fayetteville,
Missouri tower and thus does not have a history of overall
compliance with the Commission's Rules.19 Consequently, in
this case, we will impose the originally proposed forfeiture
of $10,000.
IV. ORDERING CLAUSES
13. 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,20 Aquila Communications, Inc, IS LIABLE FOR A MONETARY
FORFEITURE in the amount of ten thousand dollars ($10,000) for
failure to exhibit obstruction lighting on its antenna
structure in repeated violation of Section 17.51 of the Rules.
14. 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.21 Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include
the NAL/Acct. No. and FRN No. referenced above. Payment by
check or money order may be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
and P.O. Box 73482, Chicago, Illinois 60673-7482. Payment by
wire transfer may be made to ABA Number 071000013, receiving
bank Bank One, and account number 1165259. 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. 20554.22
15. IT IS FURTHER ORDERED that, a copy of this Order shall be
sent by Certified Mail - Return Receipt Requested - to Aquila,
Inc., 20 West 9th, Kansas City, MO 64104 and to its counsel,
Darryl K. Uffelmann, Esq., Senior Corporate Counsel, at the
above address.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.51.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432560004 (Enf. Bur., Kansas City Office, rel. Mar. 5, 2004).
3 Aquila in its April 5, 2004 response confirms that the prior
name of the company was Utilicorp United, Inc., but revised to
Aquila in March 2002. At the time of the inspections, the ASR
remained in the Utilicorp United, Inc. name.
4 According to the NAL, the agent heard Mr. Baldwin state that
the staff had noticed the light outage 2 or 3 days prior to the
call. Mr. Baldwin, in his declaration denies making any such
statement.
5 Tidewater Communications, Inc., 18 FCC Rcd 5524 (Enf. Bur.
2003).
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
9 47 U.S.C. § 503(b)(2)(D).
10 Pursuant to Section 17.47(a)(1) of the Rules, an owner is
required to observe the antenna structure's lights at least once
every 24 hours either visually or by observing a properly
maintained automatic indicator that registers any failure of the
lights; or, pursuant to Section 17.47(a)(2) of the Rules, an
owner is required to provide a properly maintained automatic
alarm system designed to detect any failure of the lights and to
provide indication of such failure to the owner. Aquila's alarm
falls under the requirements of Section 17.47(a)(2).
11 Tidewater Communications, Inc., supra
12 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).
13 47 U.S.C. § 503(b)(1)(B) authorizes imposition of a forfeiture
for any person who ``willfully or repeatedly failed to comply
with any of the provisions of this Act or any rule, regulation,
or order issued by the Commission under this Act...'' (Emphasis
added).
14 See 47 C.F.R. §1.80(b)(4), Note to Paragraph (b)(4):
Guidelines for Assessing Forfeitures.
15 See Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 ¶ 4
(2003), recon. denied., 18 FCC Rcd 25481 (2003); Petracom of
Texarkana, LLC, DA04-1242 ¶¶ 5-6 (Enf. Bur. 2004); Barinowski
Investment, Co., 18 FCC Rcd 25067, 25069 ¶ 7 (Enf. Bur. 2003);
Max Media of Montana, LLC, 18 FCC Rcd 21375, 21378 ¶ 11 (Enf.
Bur. 2003); Rotifeco, Inc., 18 FCC Rcd 14629, 14631 ¶ 7 (Enf.
Bur. 2003).
16 See Tidewater Communications, Inc., supra.
17 See 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); See also PJB Communications of Virginia, Inc, 7 FCC
Rcd 2088, 2088 (1992) (Licensees have a duty to operate in
accordance with Commission rules, and cannot absolve themselves
of the failure to do so by simply claiming that there was no harm
done to the public. There is an independent public interest in
licensees complying with the rules.) .AGM-Nevada, LLC, 18 FCC Rcd
1476 (Enf. Bur. 2003); Time Warner Entertainment -
Advance/Newhouse Subsidiary, 19 FCC Rcd 10,412 (Enf. Bur. 2004).
18 See AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871
(2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994); Station
KGVL, Inc., 42 FCC 2d 258, 259 (1973).
19 See Entravision Communicatons Corporation, DA 04-2486 (E.B
released August 10, 2004).
20 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
21 47 U.S.C. § 504(a).
22 See 47 C.F.R. § 1.1914.