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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Trap Rock Industries, Inc. ) File Number EB-05-NY-072
Owner of Antenna Structure ) NAL/Acct. No. 200632380001
ASR # 1209546 ) FRN 0003 3092 83
Kingston, New Jersey )
)
FORFEITURE ORDER
Adopted: September 28, 2006 Released: September 29, 2006
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 eight thousand dollars ($8,000) to Trap Rock Industries,
Inc. ("Trap Rock"), owner of antenna structure 1209546, located in
Franklin Township, New Jersey, for willfully and repeatedly violating
Section 17.50 of the Commission's Rules ("Rules") by failing to clean
and repaint its antenna structure as often as necessary to maintain
good visibility.
II. BACKGROUND
2. On March 16, 2005, an agent in the Commission's New York Office
conducted an inspection of antenna structure 1209546 with a Trap Rock
employee. The agent observed that the white paint on the tower was
badly faded, revealing significant amounts of an underlying layer of
orange paint. The faded white paint on the uppermost white band
revealed so much orange paint that the white band was
indistinguishable from the adjacent orange bands. The Antenna
Structure Registration (ASR) for this tower requires that the tower be
painted and lighted in accordance with FAA Chapters 3, 4, 5 and 13 in
FAA Circular Number 70/7460-1J. Chapter 3 provides that antenna
structures shall display alternate bands of aviation orange and white
paint, that the bands be equal in width, and approximately one-seventh
the height of the structure for towers 700 feet or less.
3. During the March 16, 2005 inspection, the Trap Rock employee stated to
the agent that the tower is visually inspected by Trap Rock's chief
maintenance technician. The agent informed the Trap Rock employee of
the painting and posting violations and advised him that the tower
must be repainted as soon as possible to conform to the required
specifications and that the ASR number must be posted.
4. On May 3, 2005, the agent conducted a follow-up inspection of Trap
Rock's antenna structure 1209546 with Trap Rock's chief maintenance
technician and observed that the condition of the tower paint was the
same as it was during the March 16, 2005 inspection. In addition, the
ASR number still was not posted. The chief maintenance technician
stated that he visually observes the tower twice a week, and was aware
of the appearance of the paint on the tower. The agent informed the
technician of the painting and posting violations, and advised him
that they must be corrected as soon as possible.
5. On May 4, 2005, the agent contacted Trap Rock's administrative offices
by telephone, and spoke to Trap Rock's corporate secretary. The agent
informed the corporate secretary of the painting and posting
violations on the tower, and directed him to correct the problems as
soon as possible. The corporate secretary stated that Trap Rock had
arranged for the tower to be painted and for the signs to be made and
posted.
6. On November 21, 2005, the New York Office issued a Notice of Apparent
Liability for Forfeiture to Trap Rock for apparent willful and
repeated violation of Section 17.50 of the Rules for failure to clean
and repaint its antenna structure as often as necessary to maintain
good visibility. Trap Rock submitted a response to the NAL on December
21, 2005. Trap Rock does not dispute the finding in the NAL that its
antenna structure needed to be repainted, but claims that a
cancellation or reduction is warranted in light of (1) the nature,
circumstances, extent, and gravity of the violation; (2) Trap Rock's
immediate remedial measures after the agent's inspection on March 16,
2005; and (3) Trap Rock's history of compliance. Trap Rock also
reports in its response to the NAL that the painting of the antenna
structure was completed on September 16, 2005.
III. Discussion
7. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines. In assessing forfeitures,
Section 503(b)(2)(D) of the Act requires that we 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.
8. Trap Rock claims that a reduction or cancellation of the forfeiture is
warranted based on the nature, circumstance, extent, and gravity of
the violation. More specifically, Trap Rock claims that the
requirement in Section 17.50 of the Rules that antenna structures must
be painted "as often as necessary to maintain good visibility" is
"inherently subjective" and thus a finding that Trap Rock violated
Section 17.50 of the Rules is not appropriate. We disagree. The
Commission has a statutory responsibility under Section 303(q) of the
Act to ensure that antenna structures do not present a hazard to air
safety. The painting requirements set forth in Section 17.50 of the
Rules are an integral part of how the Commission discharges its
statutory obligation. By any reasonable standard, Trap Rock's antenna
structure was not repainted "as often as necessary to maintain good
visibility." The agent observed that the white paint on the tower was
so badly faded that the white band was indistinguishable from the
adjacent orange band, thus diminishing the overall visibility of the
tower. We believe that the proposed forfeiture amount was warranted
based on the nature, circumstance, extent, and gravity of the
violation and we decline to reduce or cancel the forfeiture on this
basis.
9. We also decline to reduce or cancel the forfeiture amount based on
Trap Rock's claim that its "degree of culpability here was slight"
based on its remedial efforts after the agent's March 15, 2005
inspection. 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. In
light of Trap Rock's history of compliance, however, we reduce the
forfeiture amount from $10,000 to $8,000.
IV. ORDERING CLAUSES
10. 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 Rules, Trap Rock Industries, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eight thousand dollars ($8,000)
for willful and repeated violation of Section 17.50 of the Rules.
11. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) days of the release of
this Order. If the forfeiture is not paid within the period specified,
that case may be referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act. 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.
12. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by Certified Mail, Return Receipt Requested, and regular mail, to
Trap Rock Industries, Inc. at its address of record and to counsel for
Trap Rock Industries, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Russell Monie, Jr.
Regional Director, Northeast Region
Enforcement Bureau
47 C.F.R. S 17.50.
47 C.F.R. S 17.50.
Trap Rock Industries, Inc., Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200632380001 (Enf. Bur., New York Office, November 21, 2005)
("NAL"). In the NAL, the New York Office also admonished Trap Rock for
failing to post the antenna structure registration number at the base of
the tower.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S 503(b)(2)(D).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U. S. C. S 504(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 06-1943
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Federal Communications Commission DA 06-1943