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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
William Saunders, Owner of Gresham ) File No. EB-02-AT-326
Communications, Inc. )
)
Owner of Antenna Structure located at 32º 52' 52'' )
NAL/Acct. No. 200332480005
North Latitude by 80º 41' 24'' West Longitude in )
Walterboro, South Carolina ) FRN 0007-7826-38
MEMORANDUM OPINION AND ORDER
Adopted: January 30, 2006 Released: February 2,
2006
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1.
2. 1. In this Memorandum Opinion and Order (``Order''),
we grant in part and deny in part the petition for
reconsideration filed by William Saunders, owner of Gresham
Communications, Inc. (``Gresham''). Mr. Saunders seeks
reconsideration of the Forfeiture Order1 in which the
Assistant Chief, Enforcement Bureau, found him liable for a
monetary forfeiture in the amount of $10,000 for willful
violation of Section 17.51 of the Commission's Rules.2 The
noted violation involves Mr. Saunders' failure to continuously
exhibit all red obstruction lighting on his antenna structure
from sunset to sunrise.
3.
II. BACKGROUND
4. 2. On April 26, 2000, during a routine inspection of an
antenna structure believed to be located at 32º 52' 52''
latitude, 80º 41' 24'' longitude (Walterboro, South Carolina)
owned by Mr. Saunders, a Commission field agent from the
Atlanta, Georgia Field Office (``Atlanta Office'') discovered
that this antenna structure had no Antenna Structure
Registration (``ASR'') number posted and was not lighted by a
red beacon during evening hours. A subsequent search of the
Commission's ASR database revealed that the antenna structure
was not registered with the Commission as required by the
Rules. On May 5, 2000, the Atlanta Office issued a Notice of
Violation (``NOV'') to Mr. Saunders, Gresham's owner, for
violating Sections 17.51 and 17.4(a) of the Rules. Mr.
Saunders replied to the May 5, 2000 NOV by stating that the
light outage had been repaired and by providing a copy of an
application for registration of the antenna structure which he
stated had been filed on June 19, 2000.3
5.
6. 3. In response to a complaint that the instant
antenna structure had not been lighted in the evening for a
period of two years, on September 18 and 19, 2002, an agent
from the Atlanta Office re-inspected Mr. Saunders' antenna
structure. The red beacon light required for the structure
was out on both September 18 and 19, 2002. During the agent's
inspection, she found no ASR number on the structure as
required by the Rules. As a result of her observations, the
agent checked the ASR database and discovered that the
structure was not registered in Mr. Saunders' name with the
Commission as required by the Rules.4
7.
8. 4. On October 30, 2002, the Commission's Atlanta Office
issued a Notice of Apparent Liability (``NAL'') to Gresham for
a forfeiture in the amount of thirteen thousand dollars
($13,000) for Gresham's willful and repeated violations of
Sections 17.51 and 17.4(a) of the Rules by failing to
continuously exhibit all red obstruction lighting on his tower
from sunset to sunrise and failing to register his antenna
structure with the Commission.5 Mr. Saunders filed a response
to the NAL on December 23, 2002.6 After considering Mr.
Saunders' response to the NAL, the Assistant Chief,
Enforcement Bureau issued the subject Forfeiture Order on
December 6, 2004, in which he cancelled the portion of the
forfeiture attributable to the registration violation and
imposed a $10,000 forfeiture for Mr. Saunders' violation of
Section 17.51 of the Rules. On January 5, 2005, Mr. Saunders
filed a petition for reconsideration of the Forfeiture Order,
which he supplemented on February 15, 2005.
9.
III. DISCUSSION
10. 5. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended (``Act''),7 Section 1.80 of the Rules,8 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) (``Policy Statement''). In examining Mr. Saunders'
petition for reconsideration, 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 such other
matters as justice may require.9
11.
12. A. Tower Lighting
13.
14. 6. Section 17.51 of the Rules requires that all red
obstruction lighting be exhibited from sunset to sunrise
unless otherwise specified. In his petition, Mr. Saunders
acknowledges that the top beacon on his tower was not
operating; he also opines, however, that he was not given
consideration for the fact that the other two lights on the
tower were operating. Mr. Saunders contends that the fact
that the other beacons were operating reflects that there was
adequate electricity and effort to comply with the
Commission's rules.
15. 7. Section 17.51 of the Rules requires that all required
lighting be exhibited on the tower from sunset to sunrise
(emphasis added). The fact that one beacon was out
establishes a violation of the rule. The fact that the two
remaining beacons were lighted is not indicative of Mr.
Saunders' efforts to comply with the rules, especially in
light of the fact that the complaint that the Commission
received alleged that the outage had spanned a period of two
years. Mr. Saunders has not disproved this allegation.
16.
17. 8. Mr. Saunders also asserts that the Forfeiture Order
does not grant any favorable consideration to his statement,
made in response to the NAL, that the light outage was not due
to a failure of maintenance but was a result of vandalism.
Mr. Saunders provides a sworn declaration in support of this
contention with his petition and urges that we take this into
account as the reason for the light outage.
18.
19. 9. We do not find the reason given by Mr. Saunders to
explain the light outage sufficient to warrant reconsideration
of the Forfeiture Order in light of the complaint that the
tower light was out for two years, and that our agent observed
the outage on two consecutive days. Moreover, Section 17.47
of the Rules provides that the owner of any antenna structure
which is registered with the Commission and has been assigned
lighting specifications referenced in this part:
20.
21. (a)(1) [s]hall make an observation of the antenna
structure's lights at least once each 24 hours
either visually or by observing an automatic
properly maintained indicator designed to register
any failure of such lights, to insure that all such
lights are functioning properly as required; or
alternatively, (2) shall provide and properly
maintain an automatic alarm system designed to
detect any failure of such lights and to provide
indication of such failure to the owner.10
22.
23. Although Mr. Saunders has not been cited for a violation of
Section 17.47 of the Rules, our investigation of Mr. Saunders'
compliance efforts regarding the tower includes an analysis
and discussion of which type of system Mr. Saunders had in
place to make him aware of light outages and why that system
did not make him aware of the subject light outage before he
was informed by the Commission. With either system in place,
the longest a light outage would go unnoticed would be 24
hours. As already noted, a Commission agent observed that the
top beacon was out for two consecutive days. Accordingly, we
do not believe that Mr. Saunders' compliance efforts warrant a
reduction of the forfeiture.
24.
B. Inability to Pay
25.
26. 10. Finally, Mr. Saunders claims an inability to pay the
forfeiture and submits financial documentation including three
years of joint federal income tax returns in support of his
claim. Mr. Saunders also asserts that, because he alone owns
the tower, his wife's income should not be included when
determining his ability to pay. We do not agree. Because
Mrs. Saunders' income is a contribution towards the household
and sustenance of both Mr. and Mrs. Saunders, her income
impacts Mr. Saunders' ability to pay the forfeiture; thus, it
should be considered in an analysis of his ability to pay.
27.
28. 11. When considering an inability to pay claim, the
Commission has determined that, in general, a licensee's gross
revenues are the best indicator of its ability to pay a
forfeiture.11 Because Mr. Saunders operates the tower as a
sole proprietor, we have considered his personal tax returns
in determining his ability to pay. After reviewing Mr.
Saunders' claim and the supporting documentation, we believe
that payment of the $10,000 forfeiture would pose a financial
hardship and conclude that a reduction of the proposed
forfeiture amount to $5,000 is appropriate, as it would
represent an amount more consistent with Commission
precedent.12
29.
IV. ORDERING CLAUSES
30. 12. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act13 and Section 1.106 of the Rules, Mr. Saunders'
petition for reconsideration is GRANTED TO THE EXTENT
DISCUSSED ABOVE and DENIED IN ALL OTHER RESPECTS.
31.
32. 13. IT IS FURTHER ORDERED that, pursuant to Section 503(b)
of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,14 Mr. Saunders IS LIABLE FOR A MONETARY FORFEITURE in
the amount of five thousand dollars ($5,000) for willful
violation of Section 17.51 of the Rules.
33.
34. 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.15 Payment may be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Acct. No.
referenced above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch,
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, SW, Room
1A625, Washington, D.C. 20554.16
35.
36. 15. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to William Saunders, P.O. Drawer 11649, Columbia, SC
29211,
37. and his counsel, M. Scott Johnson, Esq., Fletcher, Heald &
Hildreth, PLC, 1300 North 17th Street, 11th Floor, Arlington,
Virginia 22209.
38.
39. FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
_________________________
1 William Saunders, Owner of Gresham Communications, Inc., 19 FCC
Rcd 23566 (Enf. Bur. 2004).
2 47 C.F.R. § 17.51.
3 Mr. Saunders' antenna structure application of June 19, 2000
revealed that he did business under the name of Gresham
Communications, Inc. and was ambiguous as to the owner of the
instant structure.
4 The prior Commission data base for such antenna structures
revealed that the instant antenna structure has been in place
since 1975 and therefore required registration with the
Commission by 1998.
5 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480005 (Enf. Bur., Atlanta Office, released October 30,
2002).
6 The NAL was issued under the name Gresham Communications, Inc.
Mr. Saunders' December 20, 2002, response contained both his
declaration of ownership of Gresham and of the instant antenna
structure. Mr. Saunders responded as the antenna structure owner
to the NAL.
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
10 47 C.F.R. §§ 17.47(a)(1) and (2).
11 PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
(1992).
12 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues).
13 47 U.S.C. § 405.
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.