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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:


    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 #


    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.


    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

    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

    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

   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.


   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.


   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


   Federal Communications Commission DA 06-2040