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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Exosphere Broadcasting, LLC ) File No. EB-03-TP-178
Owner of Antenna Structure ) NAL/Acct. No.:
Registration ) 200432700009
Number 1027312 ) FRN: 0003-4746-40
Saint Augustine, Florida
FORFEITURE ORDER
Adopted: December 1, 2004 Released: December 3,
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 Exosphere Broadcasting, LLC (``Exosphere''), owner
of antenna structure registration number (ASR # 1027312) in Saint
Augustine, Florida, for willful and repeated violation of
Sections 17.50 and 17.51 of the Commission's Rules (``Rules'').1
The noted violations involve failure to maintain good visibility
of the required antenna structure and failure to exhibit
obstruction lighting from sunset to sunrise.
2. In a February 4, 2004 Notice of Apparent Liability for
Forfeiture (``NAL''),2 the District Director-Tampa Office
proposed a monetary forfeiture of $10,000 to Exosphere for
apparent willful and repeated violations of Sections 17.50 and
17.51 of the Rules. Exosphere filed a response to the Order on
March 5, 2004. Based on the information before us, we affirm the
forfeiture.
II. DISCUSSION
3. In its March 5, 2004, response to the NAL, Exosphere
does not contest the subject violations. Rather, Exosphere seeks
a reduction or cancellation of the proposed forfeiture based on
the circumstances at the time of the April 3, 2003 inspection by
agents from the Tampa field office, and the good faith steps it
took to comply with the Rules. Exosphere asserts that it has two
tenants on its tower and that on March 30, 2003, Mr. Smith, a
consulting engineer for one of the tenants, was informed by the
other tenant that there was a lighting outage on the tower.
Exosphere avers that it first learned of the lighting outage on
April 4, 2003, and promptly contacted Mr. Smith, who arranged to
complete the repair by April 7, 2003.
4. When the Commission revised the antenna structure rules
in 1995, it clearly asserted that antenna structure owners have
the primary responsibility for maintaining the prescribed
lighting on their antenna structures and are not permitted to
circumvent that responsibility.3 Accordingly, at the time of the
violation Exosphere was responsible to maintain good visibility
and proper lighting. Exosphere states that the antenna structure
was repainted in September of 2003. Exosphere does not contest
the fact that, as noted in the NAL, it failed to exhibit the
required lights on its antenna structure from at least March 30,
2003 to April 3, 2003.4 That it was not aware of the lighting
outage and did not learn of it until being notified by the FCC
agent on April 4, 2003 does not exonerate Exosphere from its
responsibility to continuously exhibit the required lights.
Finally, in addition to curing the lighting violation, Exosphere
asserts that it has taken steps to ensure that light outages and
maintenance of the antenna structure ``will be dealt with quickly
and properly in the future.'' We note that the Commission has
repeatedly stated that remedial actions taken to correct a
violation are not mitigating factors warranting reduction of a
forfeiture.5 As a result of our review, we conclude that
Exosphere willfully6 and repeatedly7 violated Sections 17.50 and
17.51 of the Rules. We affirm that a forfeiture in the amount of
$10,000 is appropriate.
III. ORDERING CLAUSES
5. 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,8 Exosphere Broadcasting, LLC IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $10,000 for willfully and repeatedly
violating Sections 17.50 and 17.51 of the Rules.
6. 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.9
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, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
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 Group, 445 12th Street, S.W.,
Washington, D.C. 20554.10
7. 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 Howard M. Liberman, Drinker Biddle & Reath, LLP,
1500 K Street, N.W., Suite 1100, Washington, DC, 20005-1209,
counsel for Exosphere.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 17.50, 17.51.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432700009 (Enf. Bur., Tampa Office, rel. Feb. 4, 2004).
3 See Streamlining the Commission's Antenna Structure Clearance
Procedure and Revision of Part 17 of the Commission's Rules
Concerning Construction, Marking and Lighting Antenna Structures,
11 FCC Rcd 4272, 4294-96 (1995); see also 47 C.F.R. § 17.2(c)
(tower owner ultimately responsible for compliance with the tower
lighting requirements).
4 At the time of the April 3, 2003 antenna structure inspection,
Commission staff (``agents'') noted that the top red beacon was
not illuminated in accordance with the assigned lighting
specifications. The agents also found that no Notice to Airmen
(``NOTAM'') had been filed with the Federal Aviation
Administration (``FAA''). A NOTAM is a written advisory to
aircraft pilots regarding a hazard or potential hazard of which
they should be aware. On the same day that the lighting
violation was noted, an agent requested and obtained a NOTAM from
the FAA (NOTAM # ST.AUG D04/003).
5 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
6 The term ``willful'', as used in Section 503(b) of the
Communications Act of 1934, as amended (``Act''), means the
conscious and deliberate commission or omission of such act,
irrespective of any intent to violate the Commission's Rules. 47
U.S.C. § 312(f)(2).
7 A violation is ``repeated'' within the meaning of Section
503(b) of the Act if it occurs more than once or continues for
more than one day. 47 U.S.C. § 312(f)(2).
8 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.