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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number: EB-05-NF-054
Tidewater Communications LLC )
NAL/Acct. No.: 200632640004
Owner of Antenna Structure # 1024387 )
FRN #: 0009269473
Gross Point Farms, MI )
)
FORFEITURE ORDER
Adopted: October 18, 2006 Released: October 20, 2006
By the Regional Director, South Central Region, 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 Tidewater
Communications LLC ("TC"), owner of antenna structure #1024387,
located at or near North 36 50' 05" and West 076 16' 09" in Norfolk,
Virginia, for willful violation of Section 17.51(a) of the
Commission's Rules ("Rules"). The noted violation involves TC's
failure to exhibit obstruction lighting on antenna structure #
1024387.
II. BACKGROUND
2. On June 4, 2005, an agent from the Commission's Norfolk Office of the
Enforcement Bureau ("Norfolk Office") observed antenna structure #
1024387 after sunset with a top and middle flashing beacon
extinguished. The Antenna Structure Registration ("ASR") for the
structure specifies that it must be painted and lit. The Federal
Aviation Administration ("FAA") had not issued a Notice to Airmen
("NOTAM") regarding the lighting outage.
3. On June 6, 2005, the agent from the Norfolk Office interviewed
employees of TC about the tower lighting outage observed by the agent
on June 4, 2005. The employees stated that TC used a manual light
indicating system to check the status of the lighting on the antenna
stucture once every 24 hours and then logged the results. According to
written instructions, employees were to notify TC's chief operator and
the FAA immediately of any lighting problems. The agent inspected the
lighting logs for the antenna structure and found that TC noted a
lighting outage in its logs on June 3, 4, and 5, 2005 and did not
notify the FAA of the outage until June 5, 2005. Additionally, the
agent observed that TC had listed a lighting outage in its logs on
August 4, 2004 but did not notify the FAA of the outage until August
10, 2004. The chief operator for the station stated that he believed
the logs were accurate. On June 6, 2005, TC employees stated that they
were aware that the antenna structure was required to be painted and
lit, that the structure's lights were to be monitored once every 24
hours, and that they were required to notify the FAA immediately of
any known extinguishments of top steady or flashing lights which last
more than 30 minutes. The employees could not explain why TC failed to
notify the FAA of the lighting outages, as required, on August 4,
2004, June 3, 2005, and June 4, 2005.
4. On November 23, 2005, the Norfolk Office issued a Notice of Apparent
Liability for Forfeiture to TC in the amount of ten thousand dollars
($10,000) for the apparent willful violation of Section 17.51(a) of
the Rules. On December 23, 2005, the Norfolk Office received TC's
response to the NAL requesting a reduction or cancellation of the
proposed forfeiture.
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the 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, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement"). In examining TC'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. Section 17.51(a) states that all red obstruction lighting shall be
exhibited from sunset to sunrise unless otherwise specified. On June 3
and June 4, 2005, a TC employee logged lighting problems at 8:30 p.m.,
but did not notify the chief operator and the FAA of the lighting
problems and did not visually inspect the antenna structure to
determine which lights were extinguished. On June 4, 2005, at
approximately 9:45 p.m., an agent from the Norfolk Office observed
that the top and middle red obstruction lighting beacons on antenna
structure # 1024387 were extinguished after sunset and that a NOTAM
had not been issued by the FAA. Accordingly, on June 4, 2005, TC
failed to notify the FAA immediately of a lighting outage that
required more than 30 minutes to correct. TC employees only notified
the FAA of a lighting outage on June 5, 2005.
7. In its response, TC argues that the proposed forfeiture should be
cancelled, because the violation was not willful. TC asserts that the
violation occurred solely because of employee error. TC claims that
the employee on duty on June 3 and 4, 2005 was trained to notify the
chief operator immediately if the readings for the tower lights were
less than 92 percent. Although the readings for the tower lights read
0.47% and 0.67% on June 3 and June 4, 2005, TC asserts that the
employee simply made a mistake and failed to notify the chief operator
of the apparent malfunction. TC states that the employee has been
strongly reprimanded, that all employees have been reminded of the
station's standard operating procedures, and that the lights were
repaired promptly.
8. 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. TC argues that it should not be held
responsible for the mistake of its employee. However, the "Commission
has long held that licensees and other Commission regulatees are
responsible for the acts and omissions of their employees and
independent contractors," 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." It is also well established that a mistake
resulting in a rule violation is considered a willful violation. TC
has not presented any evidence that these precedents should not apply
here, and, therefore, we decline to cancel the forfeiture on this
basis.
9. TC also argues that the forfeiture should be cancelled or reduced,
because its chief operator notified the FAA of the outage on June 5,
2005, before the agent interviewed TC's employees. Although the
Commission has reduced forfeitures based on good faith efforts to
comply with the Rules initiated prior to agents' notification of
violations, TC is not entitled to such a reduction. On June 4, 2005,
after the agent observed the tower lighting outage and confirmed that
no NOTAM had been issued, he called TC's contact number posted on the
antenna structure and left a message that the tower's lights were out
and that TC should contact him as soon as possible. Accordingly, TC
cannot claim that it took good faith corrective action prior to being
notified of the violation by the Commission. Moreover, contacting the
FAA after being notified of the tower violation does not, as TC
asserts, demonstrate that the violation was not willful. Corrective
action taken to come into compliance with the Rules is expected, and
does not nullify or mitigate any prior forfeitures or violations.
10. Based on the evidence before us, we find that TC willfully violated
Section 17.51(a) of the Rules by failing to exhibit red obstruction
lighting on its antenna structure.
11. Finally, TC requests a reduction of the forfeiture based upon its
history of compliance with the Rules. TC claims it would be
inappropriate to consider the Notice of Violation issued to it on
November 16, 2001 as evidence of non-compliance with the Rules,
because the Enforcement Bureau granted its petition for
reconsideration and cancelled the forfeiture stemming from the "2001
matter." In the Memorandum Opinion and Order cited by TC, the
Enforcement Bureau stated that "[a]pplying the two downward adjustment
criteria to this case (good faith and history of overall compliance),
we find sufficient reason to cancel Tidewater's $10,000 forfeiture."
The Enforcement Bureau did not conclude that a violation had not
occurred, and it did not cancel the Notice of Violation issued to TC
on November 16, 2001 for violation of Sections 17.51(a) and 17.47(2)
of the Rules. Accordingly, we conclude that TC is not entitled to a
reduction of the forfeiture based on history of compliance with the
Rules.
12. We have examined TC'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 no reduction of
the proposed $10,000 forfeiture is warranted.
IV. ORDERING CLAUSES
13. 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, Tidewater Communications LLC IS
LIABLE FOR A MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for willfully violating Section 17.51(a) of the Rules.
14. 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. 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. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Tidewater
Communications LLC at its record of address and to its attorney, Gary
S. Smithwick, Smithwick & Belendiuk, P.C., 5028 Wisconsin Avenue, NW,
Suite 301, Washington, DC 20016.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S 17.51(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632640004
(Enf. Bur., Norfolk Office, November 23, 2005) ("NAL").
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 17.51.
See 47 C.F.R. S 17.48.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Eure 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).
American 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).
A violation resulting from an inadvertent mistake or a failure to become
familiar with the Commission's requirements is considered a willful
violation. See North Country Repeaters, 19 FCC Rcd 22139 (Enf. Bur. 2004);
PBJ Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard
Communications Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting Co., Inc.,
96 FCC 2d 1235 (1984).
See Jorge L. Estrada, Forfeiture Order, 19 FCC Rcd 22603, 22605 (Enf. Bur.
2004) (finding that corrective actions taken after notification by the
Commission is not a mitigating factor).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
We note that TC questioned whether it was being cited for violations that
occurred in August 2004, in addition to those that occurred in June 2005.
The NAL was issued for the violations that occurred in June 2005. However,
TC's noncompliance in 2004 serves as useful background demonstrating the
context of the misconduct and may be considered in determining the
appropriate forfeiture amount. See Roadrunner Transp. Inc., Forfeiture
Order, 15 FCC Rcd 9669, 9671 (2000).
See Tidewater Communications LLC, Memorandum Opinion and Order, 18 FCC Rcd
5524 (Enf. Bur. 2003) ("Memorandum Opinion and Order"). TC states that the
Enforcement Bureau cancelled the $10,000 forfeiture because the "violation
was not willful." However, this language is not included within the text
of the Memorandum Opinion and Order.
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 17.51(a).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-2040
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Federal Communications Commission DA 06-2040