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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:


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 
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 
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 N38 56' 17'' and W94 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, 
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. 
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.
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.

                         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 
5 Tidewater  Communications, Inc.,  18 FCC  Rcd 5524  (Enf.  Bur. 
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 
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.