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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
) File Numbers: EB-04-AN-024
ACS Wireless ) EB-04-AN-027
Anchorage, Alaska )
) NAL/Acct. No.200532780001
Registrant of Antenna Structures ) FRN 0001567940
ASR #1022129, Kasilof, Alaska )
ASR #1006025, Soldotna, Alaska )
FORFEITURE ORDER
Adopted: December 21, 2005 Released:
December 23, 2005
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand dollars
($3,000) to ACS Wireless (``ACS'') for willful and repeated
violation of Section 17.57 of the Commission's Rules ("Rules").1
On December 8, 2004, the Enforcement Bureau's Anchorage Resident
Agent Office issued a Notice of Apparent Liability for Forfeiture
(``NAL'') in the amount of $6,000 to ACS after determining that
ACS failed to immediately notify the Commission of a change in
the ownership information of the Antenna Structure Registrations
(``ASR's'') for the above-referenced antenna structures. In this
Order, we consider ACS's arguments that despite the violation,
the Commission was still able to contact ACS, as ACS was the site
manager for the structures; that the violation was inadvertent,
as ACS believed it had updated the ASR's for these structures;
and that ACS has a history of overall compliance with the
Commission's Rules.
II. BACKGROUND
2. On July 29, 2004, agents from the Anchorage
Resident Agent Office inspected antenna structures #1022129 and
#1006025. At the time of inspection, the ASR's listed the
Municipality of Anchorage, d/b/a/ Mactel, Inc., as the registered
owner. The agents observed, at each antenna structure site, a
posted sign indicating ACS Wireless as the site manager.
3. On September 21, 2004, an Anchorage agent sent ACS two
Letters of Inquiry, requesting further information concerning the
ownership of the two antenna structures. ACS replied on October
18, 2004.2 In its Responses, ACS admitted to acquiring ownership
of antenna structures #1022129, and #1006025 on May 14, 1999.
ACS also admitted that it was aware of the requirement to notify
the Commission upon a change in antenna structure ownership
information for structures assigned an ASR number. ACS stated
that in 1999, it hired a number of people to address the numerous
name changes and ownership changes resulting from ACS's
acquisition of four local exchange companies, a wireless company,
and a long distance company. ACS asserted that it believed
appropriate steps were taken to indicate the appropriate
ownership of its numerous entities but that some changes were
overlooked or missed. ACS also indicated that on October 13,
2004, it filed an FCC Form 854 for each of the antenna structures
to update the ownership information for each structure.3 On
November 1, 2004, an Anchorage agent reviewed the Commission ASR
database and confirmed the ASR's accurately reflected ACS as the
current owner of antenna structures #1022129, and #1006025.
4. On December 8, 2004, the Anchorage Office issued a NAL
in the amount of $6,000 to ACS.4 In the NAL, the Anchorage
Office found ACS apparently willfully and repeatedly failed to
immediately notify the Commission of a change in the ownership
information of the ASR's for the above-referenced antenna
structures. ACS filed a response to the NAL on January 11, 2005
(``Response''). In its Response, ACS requests that the
forfeiture be cancelled or reduced. ACS states that it first
became aware that the antenna structures were not registered when
it received the LOI from the Anchorage Office. It then
investigated the matter and corrected the ASR ownership
information for the two structures. ACS argues that the fact
that it was site manager for each antenna site made ``easy
contact'' with ACS available to the Anchorage agents.5 ACS also
argues that its violation was not conscious or deliberate and
that it believed in good faith that it had updated all of its
ASR's. Finally, ACS argues that it has a history of overall
compliance with the Commission's Rules and, therefore, is
entitled to a reduced forfeiture amount.
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the 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 ACS'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.9
6. Section 17.57 of the rules requires the owner of
an antenna structure to immediately notify the Commission using
FCC Form 854 upon any change in structure height or change in
ownership information.10 The Commission requires antenna
structure owners to maintain current antenna structure
registration information with the Commission and post ASR numbers
at the base of antenna structures to allow for easy contact if
problems arise.11 We first address ACS's argument that the fact
that it was the site manager made ``easy contact'' available to
the Anchorage agents. In the definition of antenna structure
owner, Section 17.2(c) of the Rules specifically states that
``[n]otwithstanding any agreements made between the owner and any
entity designated by the owners to maintain the antenna
structure, the owner is ultimately responsible for compliance . .
. .''12 It is therefore incumbent upon the owner of the antenna
structure to ensure that they can be reached immediately when a
compliance issue arises, hence, the requirement that the new
owner immediately update the ownership information on a
structure's ASR. There is no requirement that the Commission
staff, when trying to contact a structure owner, contact the site
manager or any other party. A failure to update the ownership
information for an antenna structure requires the Commission
staff to engage in additional research to ascertain the ownership
and the responsibility for any violation. Time is often of the
essence in these situations when lights have ceased to be lit and
public safety is at issue. Consequently, we find no merit to
this argument.
7. We next address ACS's argument that it believed in good
faith that it had updated all of the ASR's for its antenna
structures and that upon notification by the Commission of the
errors, it corrected the ownership records. ACS acknowledges
that it did not notify the Commission of the ownership change for
the antenna structures until after it received the LOI from the
Anchorage Office. Generally, we will not downwardly adjust or
cancel forfeitures where the violator has not instituted
corrective measures until after it receives notice from the
Commission regarding the violation.13 We note that in its
responses to the Anchorage Office's LOI's, ACS states that it
acquired these antenna structures on May 14, 1999, indicating
that the violation had been ongoing for five years when ACS
received the LOI's. Therefore, this argument is without merit as
well. Finally, ACS argues that it has an overall history of
compliance with the Commission's Rule and therefore, a reduction
in the forfeiture amount is warranted. A review of the
Commission's records reveals, however, that ACS and its
associated entities previously have been found in violation of
the Commission's Rules.14 Consequently, no reduction is
warranted.
8. We have examined ACS'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 ACS willfully and repeated violated Section 17.57.
However, we note that antenna structure #1006025 is not mandated
by its ASR to be painted or equipped with specific types of
lighting to ensure air safety.15 We therefore cancel the
forfeiture as to antenna structure #1006025. Considering the
entire record and the factors listed above, we find that a $3,000
forfeiture is warranted.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended
(``Act''), and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules, ACS Wireless IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $3,000 for willfully and repeatedly
violating Section 17.57 of the Rules.16
10. 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.17 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, Room 1A625, 445 12th Street, S.W.,
Washington, D.C. 20554.18
11. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class Mail and Certified Mail Return
Receipt Requested to ACS Wireless, 600 Telephone Avenue,
Anchorage, Alaska 99503.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
_________________________
147 C.F.R. § 17.57.
2Letters from ACS to the Anchorage Resident Agent Office (October
18, 2004).
3See ASR File Numbers A0400123 and A0400118, filed October 13,
2004.
4Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532780001 (Enf. Bur., Western Region, Anchorage Office,
released December 8, 2004).
5ACS states that the former owner of the structures, Mactel, has
undergone a name change in recent years and now goes by ``d/b/a
ACS Wireless.'' ACS states that the name Mactel is synonymous
with ACS Wireless, Inc.
647 U.S.C. § 503(b).
747 C.F.R. § 1.80.
812 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
947 U.S.C. § 503(b)(2)(D).
1047 C.F.R. § 17.57. Section 303(q) of the Act gives the
Commission authority to regulate certain antenna structures if
and when such structures constitute, or there is a reasonable
possibility that they may constitute, a menace to air navigation.
47 U.S.C. § 303(q).
11See, e.g., Spectrasite Communications, Inc. 18 FCC Rcd 22799,
22800 (2003).
12Section 17.2(c) of the Rules, 47 C.F.R. §17.2(c).
13See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875 - 76
(2002).
14See, e.g., ACS Television, L.L.C., 17 FCC Rcd 14586 (EB 2002)
(Issuing a $11,000 forfeiture against ACS Television, L.L.C. for
willful violation of Section 74.780, 73.3538(a)(1) and
73.3538(a)(4) of the Rules); Notice of Violation: ACS of
Anchorage License Sub, Inc., NOV No. V20053278002, (Enf. Bur.,
Western Region, Anchorage Resident Agent Office, released October
12, 2004.)
15See Section 17.23 of the Rules, 47 C.F.R. § 17.23 (Antenna
structures must conform to the Federal Aviation Administration's
(``FAA's'') painting and lighting recommendations set forth on
the structure's FAA determination of ``no hazard''). See n. 10,
supra.
1647 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4),
17.57.
1747 U.S.C. § 504(a).
18See 47 C.F.R. § 1.1914.