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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
William Saunders owner of Gresham ) File No. EB-02-AT-326
Communications, Inc. )
)
Owner of Antenna Structure located at 32º 52' 52'' )
NAL/Acct. No. 200332480005
North Latitude by 80º 41' 24'' West Longitude in )
Walterboro, South Carolina ) FRN 0007-7826-38
FORFEITURE ORDER
Adopted: December 2, 2004 Released: December 6,
2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1.
2. 1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to William Saunders (``Mr. Saunders'') owner of
Gresham Communications, Inc. (``Gresham'')1 for willful
violation of Section 17.51 of the Rules,2 and cancel the
proposed monetary forfeiture in the amount of three thousand
dollars ($3,000) for willful and repeated violation of Section
17.4(a) of the Rules.3 The noted violations involve Mr.
Saunders's failure to continuously exhibit all red obstruction
lighting on his tower from sunset to sunrise and his failure
to register his antenna structure with the Commission.
3. 2. On October 30, 2002, the Commission's Atlanta,
Georgia Field Office (``Atlanta Office'') issued a Notice of
Apparent Liability (``NAL'') to Gresham for a forfeiture in
the amount of thirteen thousand dollars ($13,000).4 Mr.
Saunders filed a response to the NAL on December 20, 2002.5
4.
II. BACKGROUND
5. 3. On April 26, 2000, during a routine inspection of an
antenna structure believed to be located at 32º 52' 52''
latitude, 80º 41' 24'' longitude (Walterboro, South Carolina)
owned by Mr. Saunders, a Commission field agent from the
Atlanta Office discovered that this antenna structure had no
Antenna Structure Registration (``ASR'') number posted and was
not lighted by a red beacon during evening hours. A subsequent
search of the Commission's ASR database revealed that the
antenna structure was not registered with the Commission as
required by the Rules. On May 5, 2000, the Atlanta Office
issued a Notice of Violation (``NOV'') to Mr. Saunders,
Gresham's owner, for violating Sections 17.51 and 17.4(a) of
the Rules. Mr. Saunders replied to the May 5, 2000, NOV by
stating that the light outage had been repaired and by
providing a copy of an application for registration of the
antenna structure which he stated had been filed on June 19,
2000.6
6.
7. 4. In response to a complaint that the instant
antenna structure had not been lighted in the evening for a
period of two years, on September 18 and 19, 2002, the agent
from the Atlanta Office re-inspected Mr. Saunders's antenna
structure. The red beacon light required for the structure
was out on both September 18 and 19, 2002. During the agent's
inspection, she found no ASR number on the structure as
required by the Rules. As a result of her observations, the
agent checked the ASR database and discovered that the
structure was not registered in Mr. Saunders's name with the
Commission as required by the Rules.7
8.
9. 5. On October 30, 2002, the Atlanta Office issued the
subject NAL to Gresham citing apparent willful and repeated
violations of Sections 17.51 and 17.4(a) of the Rules. In
response to the NAL, Mr. Saunders does not dispute the
violations, but includes copies of multiple applications for
an ASR number for his antenna structure, and a copy of a July
25, 2000, Federal Aviation Administration (``FAA'')
notification of receipt of Mr. Saunders's Notice of Proposed
Construction. Mr. Saunders states further that the lighting
violation was corrected upon being informed of the outage, and
that the lighting failure resulted from vandalism. Lastly,
Mr. Saunders requests cancellation of the forfeiture asserting
an inability to pay the forfeiture.
10.
III. DISCUSSION
11. 6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),8 Section
1.80 of the Rules,9 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) (``Policy
Statement''). In examining Mr. Saunders'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.10
12.
13. 7. Section 17.51 of the Rules requires that all red
obstruction lighting be exhibited from sunset to sunrise
unless otherwise specified. On the basis of the FCC agent's
observations on September 18 and 19, 2002, and the admission
in Mr. Saunders's response, we find that Mr. Saunders
willfully violated Section 17.51 of the Rules. His remedial
efforts to repair the tower lighting are insufficient to
support a reduction of the forfeiture.11 Moreover, Mr.
Saunders's undocumented assertion that the lights were out due
to vandalism, absent evidence of an inspection schedule, would
not by itself mitigate the violation.12 Accordingly, we find
that Mr. Saunders's violation of Section 17.51 of the Rules
was willful.13
14.
15. 8. Section 17.4(a) of the Rules provides that the owner of
any proposed or existing antenna structure that requires
notice of proposed construction to the FAA must register the
structure with the Commission.14 Mr. Saunders, as the owner
of the antenna structure, is ultimately responsible for its
registration.15 However, after reviewing the record in this
case, and Mr. Saunders's response, we conclude that the record
does not support a conclusion that Mr. Saunders violated
Section 17.4(a) of the Rules. Accordingly, we find that the
monetary forfeiture for violation of Section 17.4(a) of the
Rules should be cancelled.
16.
17. 9. Mr. Saunders's request for reduction of the forfeiture
based on an inability to pay is not accompanied by his tax
returns or other documentation. As stated in the NAL, the
Commission will not consider reducing or canceling a
forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices
(``GAAP''); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's
current financial status.16 Any claim of inability to pay
must specifically identify the basis for the claim by
reference to the financial documentation submitted.17
Accordingly, we find that there is no basis to reduce the
assessed forfeiture amount due to inability to pay, and thus,
we are not persuaded by Mr. Saunders's financial hardship
claim.18
18.
19. 10. We have examined Mr. Saunders'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 that a reduction of the forfeiture amount is
warranted from thirteen thousand dollars ($13,000) to ten
thousand dollars ($10,000).
20.
IV. ORDERING CLAUSES
21. 11. 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,19 Mr. Saunders IS LIABLE FOR A MONETARY FORFEITURE
in the amount of ten thousand dollars ($10,000) for willful
violation of Section 17.51 of the Rules, and the $3,000
forfeiture for violation of Section 17.4 of the Rules IS
CANCELLED.
22.
23. 12. 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.20 Payment may be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Acct. 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 Milroom,
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 Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.21
24. 25. 13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to William Saunders, P.O. Drawer 11649, Columbia, SC
29211,
26. and its Counsel, M. Scott Johnson, Esq. Gardner, Carton &
Douglas, 1301 K Street, N.W., Suite 900, East Tower,
Washington, D.C. 20005.
27.
28. FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
1 Gresham is the licensee of Station WPAL-FM, Ridgeville, South
Carolina.
2 47 C.F.R. § 17.51.
3 47 C.F.R. § 17.4(a).
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480005 (Enf. Bur., Atlanta Office, released October 30,
2002).
5 The NAL was issued under the name Gresham Communications, Inc.
Mr. Saunders's December 20, 2002, response contained both his
declaration of ownership of Gresham and of the instant antenna
structure. Mr. Saunders responded as the antenna structure owner
to the NAL.
6 Mr. Saunders's antenna structure application of June 19, 2000
revealed that he did business under the name of Gresham
Communications, Inc. and was ambiguous as to the owner of the
instant structure.
7 The prior Commission data base for such antenna structures
revealed that the instant antenna structure has been in place
since 1975 and therefore required registration with the
Commission by 1998.
8 47 U.S.C. § 503(b).
9 47 C.F.R. § 1.80.
10 47 U.S.C. § 503(b)(2)(D).
11 See AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002),
forfeiture ordered, 17 FCC Rcd 21866, 21875-76 (2002) (finding
that a downward adjustment of an aggregate forfeiture was not
warranted, where the carrier lacked an effective antenna
compliance program at the time of the violations and only
corrected such violations after the Commission brought them to
its attention); and Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099
(1994) (``[C]orrective action taken to come into compliance with
Commission rules or policy is expected, and does not nullify or
mitigate any prior forfeitures or violations.'').
12 In addition to his claim of vandalism, Mr. Saunders has
offered no evidence indicating how frequently he checked the
tower for deficiencies, or whether he made routine maintenance
checks of the lighting at all. Thus, this situation is
distinguishable from Vernon Broadcasting, Inc., 60 RR 2d 1275
(1986) (violation arising from vandalism occurring between time
of licensee's inspection and FCC's inspection found not willful
where licensee provided evidence of regular inspection and site
found to be compliant just prior to FCC inspection) and Tidewater
Communications, Inc., 18 FCC Rcd 5524 (Enf. Bur. 2003)
(forfeiture cancelled when licensee established a routine
inspection schedule and inspected shortly before the FCC
inspection with no malfunctions observed), but in keeping with
Eure Family Ltd. Patrnership, 17 FCC Rcd 7042, 7045 (Enf. Bur.
2002); review denied, 17 FCC Rcd 21861 (2002) and Culpepper
Broadcasting Corp., 15 FCC Rcd 12594 (Enf. Bur. 2000).
13 Section 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).
14 Section 17.4 came into effect on July 1, 1996. Subsection
17.4(a)(2), the section applicable to the instant pre-existing
structure, gave owners a grace period for registration until July
1, 1998.
15 See L.T. Simes II and Raymond Simes, 18 FCC Rcd 8977,8980
(Enf. Bur. 2003) (``licensees are expected to become familiar
with and comply with the Commission's rules'') citing Sitka
Broadcasting Company, Inc., 70 FCC 2d 2375, 2378 (1979)
(``Licensees are expected to know and comply with the
Commission's rules, and will not be excused for violations
thereof ....'').
16 NAL at para. 13.
17 See Policy Statement at 17106; PJB Communications of Virginia,
Inc., 7 FCC Rcd 2088, 2089 ¶ 8 (1992) (finding that gross
receipts are a ``very useful yardstick'' in analyzing a company's
financial condition for forfeiture purposes).
18 See Webnet Communications, Inc., 18 FCC Rcd 6870, 6878 (2003)
(finding that the Rules require that any request to reduce or
cancel a forfeiture based on an inability to pay claim include
detailed and relevant financial documentation, that the carrier
did not provide such documentation, and that therefore there was
no basis to reduce the total forfeiture on such grounds); see
also Commonwealth License Subsidiary, LLC, 18 FCC Rcd 20483,
20486 (Enf. Bur. 2003); Andre Dominque Hunter, 14 FCC Rcd 3958,
3959-60 ¶ 6 (CIB 1999).
19 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
20 47 U.S.C. § 504(a).
21 See 47 C.F.R. § 1.1914.