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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of: )
)
T. A. Forsberg, Inc. ) File Number: EB-04-
) DT-334
Okemos, MI )
) NAL/Acct. No:
) 200532360002
FRN 0002 7706 59
FORFEITURE ORDER
Adopted: December 21, 2005 Released: December
23, 2005
By the Regional Director, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand dollars
($6,000) to T.A. Forsberg, Inc. (``Forsberg''), owner of an
antenna structure located in Okemos, Michigan, for willful
and repeated violation of Section 17.4(a) of the
Commission's Rules (``Rules'').1 The noted violation
involves Forsberg's failure to register its antenna
structure.
II. BACKGROUND
2. On April 23, 2004, agents from the Detroit Office
conducted an inspection of a 303 foot antenna structure
located at 2360 Jolly Oak Road, Okemos, Michigan, at the
geographical coordinates of 42º 41' 08'' north latitude and
084º 26' 14'' west longitude. The agents observed no
Antenna Structure Registration (ASR) number posted at the
site. During the inspection, the agents were approached by
Mr. Dennis Forsberg, who identified himself as President of
T. A. Forsberg, Inc. Mr. Forsberg stated that his company
owns the tower and that he believed the tower was registered
with the Commission. When the agents accompanied Mr.
Forsberg to the Forsberg business office, Mr. Forsberg was
not able to produce any evidence that the antenna structure
was registered with the Commission.
3. Commission agents searched the Commission's ASR
Database and found no evidence that Forsberg's tower is
registered. The agents also identified a Notice of
Violation that had been issued to Forsberg on April 29, 1999
for failure to register the same antenna structure.2
Commission records also showed that, subsequent to the
issuance of the NOV, Forsberg filed an application to
register the tower, but the application was dismissed and
returned to Forsberg because a current FAA study was not
submitted. The agents were not able to determine why the
application was dismissed.
4. On June 30, 2004, the Detroit Office sent a Letter
of Inquiry (``LOI'') to Forsberg, requesting, inter alia,
information regarding the tower registration. The Detroit
Office received a response from Mr. Forsberg on July 12,
2004. Mr. Forsberg stated ``...our antenna structure has
not yet been registered with the FCC. We do not have a
current FAA study, which is required for the FCC
registration. To have this study done, we are soliciting
bids to have the tower brought into FAA and FCC compliance,
and complete all the registration paperwork required.''
5. On July 20, 2004, the Detroit Office sent a second
LOI to Forsberg seeking information about, inter alia, the
status of the tower registration. Mr. Forsberg submitted a
response to the LOI stating that ``...our antenna structure
has not been registered with the FCC. We have contacted B&L
tower ... to bring the tower into compliance with FCC
standards.''
6. On December 27, 2004, Mr. Forsberg submitted a
letter stating that ``[w]e. . . received our FAA
Aeronautical Study on December 22, 2004, Study Number 2004-
AGL-7303-OE. We have completed and submitted our FCC new
antenna registration form, and have been granted an FCC
Registration Number 1246625.'' On January 20, 2005, a
Commission agent conducted a search of the ASR database and
determined that the tower was registered with the FCC on
December 27, 2004.
7. On March 17, 2005, the Detroit Office issued a
Notice of Apparent Liability for Forfeiture to Forsberg in
the amount of six thousand dollars ($6,000) for the apparent
willful and repeated violation of Section 17.4(a) of the
Rules.3 Although the base forfeiture amount for failure to
file required forms is $3,000, the proposed forfeiture
amount was upwardly adjusted to $6,000 because Forsberg had
been aware of the unregistered tower since 1999 and had
received three subsequent requests for information regarding
the antenna structure registration. On April 7, 2005,
Forsberg submitted a response to the NAL requesting a
reduction of the proposed forfeiture.
III. DISCUSSION
8. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),4 Section
1.80 of the Rules,5 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) (``Forfeiture
Policy Statement''). In examining Forsberg'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 other such matters as justice may
require.6
9. Section 17.4(a) of the Rules states 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.7 Forsberg does not deny that
the tower remained unregistered from 1999 when a Notice of
Violation was issued until the time the tower was registered
in 2004. Forsberg, however, requests a reduction in the
forfeiture amount on the ground that its actions were not
willful or egregious. We decline to grant the request.
10. A "willful" violation under section 503(b) means
"the conscious and deliberate commission or omission of
[any] act, irrespective of any intent to violate" the law.8
Mr. Forsberg states that an employee who had been tasked
with registering the tower failed to do so and when the
employee left the Forsberg company, the employee failed to
advise Mr. Forsberg that the tower still was not registered.
The "Commission has long held that licensees and other
Commission regulatees are responsible for the acts and
omissions of their employees and independent contractors,"9
and when the actions of independent contractors or employees
have resulted in violations, the Commission has
"consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent
contractors have resulted in violations."10 Forsberg has
not presented any evidence that this precedent should not
apply here and therefore we decline to reduce the forfeiture
on this basis.
11. We also decline to reduce the forfeiture based on
the assertion that ``as soon as [Forsberg] was made aware
that . . . [the tower was] not registered or in compliance,
[Forsberg] took immediate steps to bring the tower into
compliance and get the appropriate paperwork completed.''
The Commission consistently has held that corrective action
taken to come into compliance with the Rules is expected,
and does not nullify or mitigate any prior forfeitures or
violations.11 Even if the Commission reduced forfeitures
based on immediate remedial efforts, Forsberg's efforts were
not immediate. The tower remained unregistered from the
time agents first notified Forsberg of the problem in 1999
until the time the tower was registered in 2004. Moreover,
for the reasons stated in the preceding paragraph, Forsberg
is considered responsible for the failure to register the
tower as of 1999, notwithstanding the fact that a Forsberg
employee may have been responsible for the failure to
register and may not have advised Mr. Forsberg that the
tower had not yet been registered when the employee left the
Forsberg company.
12. Thus, based on the evidence, we find that Forsberg
willfully and repeatedly12 violated Section 17.4(a) of the
Rules by failing to register its antenna structure. We also
continue to believe that an upward adjustment in the
forfeiture amount is warranted in light of Forsberg's
failure to register the tower for more than fours years
after the issuance of the NOV and even then only as a result
of a follow-up investigation by FCC agents.
13. We have examined Forsberg's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement. As a result of our
review, we conclude that Forsberg willfully and repeatedly
violated Section 17.4(a) of the Rules. We find no basis for
cancellation or reduction of the $6,000 forfeiture proposed
for these violations.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules,13 T.A. Forsberg, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of six thousand hundred
dollars ($6,000) for willfully and repeatedly violating
Section 17.4(a) of the Rules.
15. 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.14 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an
installment plan should be sent to: Associate Managing
Director, Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.15
16. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to T.A. Forsberg, Inc. at its address of
record.
FEDERAL COMMUNICATIONS
COMMISSION
Russell Monie, Jr.
Regional Director, Northeast
Region
Enforcement Bureau
_________________________
147 C.F.R. § 17.4(a).
2See Notice of Violation, File No. 99-DT-0255 (Compliance
and Information Bureau, Detroit Office, April 29, 1999).
3Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532360002 (Enf. Bur., Detroit Office, March 17, 2005)
(``NAL'').
447 U.S.C. § 503(b).
547 C.F.R. § 1.80.
647 U.S.C. § 503(b)(2)(D).
747 C.F.R. § 17.4(a). Section 17.4(a)(2) requires owners
of existing antenna structures that were assigned painting
or lighting requirements before July 1, 1996, to register
those antenna structures with the Commission no later than
July 1, 1998. 47 C.F.R. § 17.4(a)(2). Forsberg's antenna
structure was assigned painting and lighting requirements
by the FAA in 1988, so registration was required by July 1,
1998.
8Section 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).
9Eure Family Limited Partnership, Memorandum Opinion and
Order, 17 FCC Rcd 21861, 21863,-64, para. 7 (2002); MTD,
Inc., Memorandum Opinion and Order, 6 FCC Rcd 34
(1991)(holding that a company's reliance on an independent
contractor to construct a tower in compliance of FCC rules
does not excuse that company from a forfeiture); Wagenvoord
Broadcasting Co., Memorandum Opinion and Order, 35 FCC 2d
361 (1972) (holding a licensee responsible for violations
of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., 19 FCC Rcd 6248
(Enf. Bur. 2004)(holding a licensee liable for its
employee's failure to conduct weekly EAS tests and to
maintain the "issues/programs" list).
10American Paging, Inc. of Virginia, Notice of Apparent
Liability for Forfeiture, 12 FCC Rcd 10417, 10420, para. 11
(Enf. & Cons. Inf. Div., Wireless Tel. Bur. 1997) (quoting
Triad Broadcasting Company, 96 FCC 2d 1235, 1244 (1984).
11See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd
6099 (1994).
12The term ``repeated,'' when used with reference to the
commission or omission of any act, ``means the commission
or omission of such act more than once or, if such
commission or omission is continuous, for more than one
day.'' 47 U.S.C. § 312(f)(2).
1347 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1447 U.S.C. § 504(a).
15See 47 C.F.R. § 1.1914.