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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Communications Relay Corporation File Number: EB-04-LA-281
)
Antenna Structure Registrant NAL/Acct. No.: 200632900007
)
ASR #1019247 FRN: 0014046999
)
Claremont, California
)
)
FORFEITURE ORDER
Adopted: December 20, 2006 Released: December 22, 2006
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 thirteen thousand dollars ($13,000) to Communications
Relay Corporation ("CRC"), for willful and repeated violations of
Section 303(q) of the Communications Act of 1934, as amended, ("the
Act"), and Sections 17.23, 17.47, 17.48, 17.49, and 17.57 of the
Commission's Rules ("Rules"). On January 19, 2006, the Los Angeles
Office issued a Notice of Apparent Liability for Forfeiture ("NAL") in
the amount of $13,000 to CRC after determining that CRC apparently
willfully and repeatedly failed to comply with the antenna structure
registration ("ASR") lighting, monitoring, record keeping, and
notification requirements specified for antenna structure #1019247. In
this Order, we consider CRC's arguments that no violation occurred and
that even if violations did occur, the proposed forfeiture should be
cancelled or reduced because CRC's failure to immediately update the
antenna structure registration ("ASR") for antenna structure #1019247
did not delay the Los Angeles Office in contacting CRC, and that CRC
fully cooperated with the Los Angeles Office.
II. BACKGROUND
2. According to the Commission's ASR database, antenna structure #1019247
is required to have painting and lighting in accordance with Chapters
3, 4, 5 and 13 of FAA Circular 70/7460-1J. Specifically, the structure
is required to be painted and have obstruction lighting consisting of
at least one flashing red beacon on top and two steady-burning
sidelights on opposite sides at the midpoint. On December 2, 2004,
agents from the Enforcement Bureau's Los Angeles Office observed that
no lights were functioning on antenna structure #1019247. A review of
Commission records showed KSCI, Inc. as the registrant of antenna
structure #1019247. On December 3, 2004, the Los Angeles Office
notified the Federal Aviation Administration's ("FAA's") Hawthorne
Automated Flight Service Station ("FSS") of the light outage. On
January 25, 2005, a Los Angeles agent conducted a follow-up inspection
of the structure and confirmed that no lights were functioning on the
structure.
3. On January 26, 2005, a Los Angeles agent contacted KSCI, Inc., and was
advised that the structure had been sold to CRC in September, 2004. The
agent contacted a CRC service representative and advised him that the
lights were not functioning on antenna structure #1019247. Later on
January 26, 2005, James Kay ("Kay"), the president of CRC, advised the
agent that CRC would make any repairs that would be required.
4. On January 27, 2005, Kay informed the Los Angeles Office that a relay
had burned out on the lighting system on antenna structure #1019247 but
that the lighting system was now operational. Subsequent to Kay's report
that the lights were operational, however, the Los Angeles Office received
a report that no tower lights were visible on the structure.
5. On February 10, 2005, a Los Angeles agent again contacted CRC and
relayed the reports that the lights on antenna structure #1019247 were not
operational and reminded CRC that lighting was required on the structure.
Kay and the CRC service representative responded that CRC was purchasing
all new lights to install on the structure. On February 17, 2005, a Los
Angeles agent spoke to the CRC service representative who reported that
the tower light's electrical problem had been repaired, but that an alarm
system for reporting light failures was not yet installed. The
representative also told the agent that he was responsible for daily
observations of the tower lights. On February 25, 2005, a Los Angeles
agent made an observation of antenna structure #1019247 and found that the
lighting on the structure was operational.
6. On May 3, 2005, a Los Angeles agent reviewed the Commission's ASR
database and found it continued to show that antenna structure #1019247
was registered to KSCI, Inc. On August 25, 2005, the Los Angeles Office
sent a Letter of Inquiry ("LOI") to CRC, which requested confirmation of
CRC's continued ownership of antenna structure #1019247. The LOI also
requested information concerning whether CRC was aware of the requirements
of Sections 17.47, 17.48, 17.49 and 17.57 of the Rules; when CRC became
aware of these requirements; and what efforts CRC had taken to maintain
compliance with these requirements.
7. On September 14, 2005, CRC replied to the LOI. In its reply, CRC
confirmed that it acquired antenna structure #1019247 in August of 2004,
and that it was still the owner of the structure. CRC also acknowledged
that it had not yet notified the Commission of the change in ownership of
the structure. CRC stated that it had "purchased the tower with the
understanding from the previous owner that it was in full compliance with
all applicable regulatory requirements." CRC also stated that it was
generally aware of the Commission's tower regulations. CRC acknowledged
that it was not aware of the light outages on antenna structure #1019247
until notified by the Los Angeles Office in January, 2005. CRC explained
the lighting problem as being caused by a power line surge, one that is a
recurring problem at the site. CRC also stated that it had ordered a new
beacon lighting system with automated monitoring capabilities, but
provided no response regarding any other efforts to comply with Section
17.47, which requires either daily observations of the lighting system by
the antenna structure owner or an automatic alarm system designed to
detect and indicate any failure of the lighting system. CRC also failed to
explain its efforts to comply with Section 17.48, which requires
notification to the FAA of failures and repairs; or Section 17.49, which
requires detailed records be kept of lighting failures, adjustments,
repairs and all FAA notifications.
8. On September 26, 2005, CRC filed an application to notify the
Commission of the ownership transfer of the antenna structure from KSCI,
Inc. to CRC. On September 29, 2005, CRC sent a supplemental reply to the
LOI stating that a new lighting system and alarm system had been purchased
and would soon be installed on antenna structure #1019247.
9. On January 19, 2006, the Los Angeles Office issued a NAL in the amount
of $13,000 to CRC. CRC filed a response to the NAL on February 21, 2006
("Response"). In the NAL, the Los Angeles Office found that CRC apparently
willfully and repeatedly violated Section 303(q) of the Act and Sections
17.23, 17.47, 17.48, 17.49, and 17.57 of the Rules by failing to comply
with the antenna structure registration ("ASR") lighting, monitoring,
record keeping, and notification requirements specified for antenna
structure #1019247. In its Response, CRC argues that antenna structure
#1019247 is not more than 200 feet in height, and that, therefore, no rule
violations took place, that CRC's failure to immediately update the ASR
for antenna structure #1019247 did not delay the Los Angeles Office in
contacting CRC, that CRC fully cooperated with the Los Angeles Office in
determining the reasons for the failures of the lighting on antenna
structure #1019247, and that CRC has a history of compliance with the
Commission's Rules.
III. DISCUSSION
10. 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 CRC'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.
11. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed by
the Commission. Section 17.21(a) of the Rules states antenna structures
shall be painted and lighted when they exceed 60.96 meters (200 feet) in
height above the ground or they require special aeronautical study.
According to its ASR, antenna structure #1019247 is 62.1 meters in height
and is assigned painting and lighting specifications.
12. Section 17.23 of the rules requires that registered antenna structures
conform to the mandatory FAA painting and lighting recommendations set
forth on the FAA Notice issued to the structure owner. The FAA Notice for
antenna structure #1019247 requires that the structure be painted and have
obstruction lighting consisting of at least one flashing red beacon on top
and two steady-burning side lights at the midpoint. On December 2, 2004,
Los Angeles agent observed that the lighting on antenna structure #1019247
was not functioning. On January 25, 2005, a Los Angeles agent again
observed that the lighting on the antenna structure was not functioning.
Initial repairs were made by CRC after being notified by the Los Angeles
Office on January 26, 2005. Shortly thereafter, the Los Angeles Office
received reports that the lights had again failed. These reports were
confirmed by CRC's field service representative on February 10, 2005, and
by CRC, in its response to the Los Angeles LOI, when it explained the
lighting problem as being caused by a recurring power line problem at the
site. In its Response, CRC does not deny that lights on antenna structure
#1019247 were not functioning on the dates listed above.
13. Section 17.47(a)(1) of the Rules requires the owner of any antenna
structure which is registered with the Commission and has been assigned
lighting specifications to make an observation of the antenna structure's
lights at least once every 24 hours either visually or by observing an
automatic properly maintained indicator designed to register any failure
of such lights. Alternatively, Section 17.47(a)(2) of the Rules requires
antenna structure owners to 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. CRC acknowledged that it first
became aware of the lighting failures on antenna structure #1019247 when
it was contacted by a Los Angeles agent in January, 2005. On February 17,
2005, CRC's service company representative reported to a Los Angeles agent
that an alarm system for reporting light failures was not yet installed
and that he was responsible for daily observations of the tower lights. On
September 29, 2005, CRC reported to the Los Angeles Office that it had
finally purchased a lighting system and an alarm system and that they
would both soon be installed. In its Response, however, CRC does not deny
that it failed to install a properly functioning alarm system or make
daily observations of the lights on antenna structure #1019247 on the
dates listed above.
14. Section 17.48 of the Rules requires the owner of any antenna structure
which is registered with the Commission and has been assigned lighting
specifications to report immediately by telephone or telegraph to the
nearest Flight Service Station or office of the FAA any observed or
otherwise known extinguishment or improper functioning of any top steady
burning light or any flashing obstruction light, regardless of its
position on the antenna structure, not corrected within 30 minutes. After
observing that the lighting on antenna structure #1019247 was not
functioning on December 2, 2004, a Los Angeles agent informed the FAA.
After the subsequent light outages on the antenna structure, the Los
Angeles agent, on February 10, 2005, again had to notify the FAA of the
light outages. In the LOI, the Los Angeles Office specifically requested
statements and supporting documentation regarding CRC's efforts to comply
with Section 17.48. In response to the LOI, CRC provided no statements or
other evidence that it ever notified the FAA of completed repairs, or of
the additional extinguishment; only that it is generally aware of the
Commission's tower regulations. In its Response, CRC does not deny that it
failed to notify the FAA within 30 minutes of the failure of the
obstruction lighting on CRC's antenna structure.
15. Section 17.49 of the Commission's Rules requires the owner of each
antenna structure which is registered with the Commission and has been
assigned lighting specifications to maintain a record of any observed or
otherwise known extinguishment or improper functioning of a structure
light and include information concerning the date, time and nature of the
extinguishment or improper functioning; the date and time of FAA
notification; and the date, time and nature of adjustments, repairs, or
replacements made. The Los Angeles Office's LOI specifically requested
statements and supporting documentation regarding the CRC's efforts to
comply with Section 17.49, but no such evidence was included in CRC's
reply only CRC's statement that it is generally aware of the Commission's
tower regulations. In its Response, CRC does not deny that it failed
maintain the records required by Section 17.49 of the Rules.
16. Section 17.57 of the Commission's Rules requires that the owner of an
antenna structure for which an Antenna Structure Registration Number has
been obtained must immediately notify the Commission upon any change in
structure height or change in ownership information. CRC acknowledged that
it purchased the tower in approximately August of 2004, but, despite two
notifications from the Los Angeles Office, CRC did not file an application
to notify the Commission of the ownership transfer until September 26,
2005. Although CRC eventually filed an application, as required by Section
17.57 of the Rules, it did so only after repeated notifications from the
Los Angeles Office. In its Response, CRC does not deny failing to
immediately notify the Commission upon any change in ownership information
in the ASR for antenna structure #1019247.
17. CRC argues in its Response that none of the rules listed above apply
to antenna structure #1019247 because the antenna structure is not more
than 200 feet in height. CRC alleges that Section 17.4(a) of the Rules
"requires the registration only for a "structure that requires notice of
proposed construction to the Federal Aviation Administration, . . . which
generally means a tower more than 200 feet above ground level." We
disagree. Section 17.21(a) of the Rules states that "[a]ntenna structures
shall be painted and lighted when . . . [t]hey exceed 60.96 meters (200
feet) in height above the ground or they require special aeronautical
study (emphasis added)." Section 17.23 of the rules requires that "each
new or altered antenna structure to be registered on or after January 1,
1996 must conform to the FAA's painting and lighting recommendations set
forth on the FAA determination of `no hazard' as referenced in the
following FAA Advisory Circulars: AC 70/7460-1J, `Obstruction Marking and
Lighting,' effective January 1, 1996, and AC 150/5345-43E, `Specification
for Obstruction Lighting Equipment,' dated October 19, 1995." The
original registrant for antenna structure #1019247, KSCI, Inc., filed an
application to register the structure on April 22, 1997. In this
application, KSCI, Inc., stated that the structure had an overall height
above ground level, including appurtenances, of 62.1 meters. As part of
the registration application, KSCI, Inc., included the FAA's determination
of "no hazard" for the antenna structure, FAA Study Number 97-AWP-0713-OE,
which was issued on March 25, 1997. As detailed on the ASR for structure
#1019247, FAA Study Number 97-AWP-0713-OE requires that antenna structure
#1019247 have painting and lighting in accordance with Chapters 3, 4, 5
and 13 of FAA Circular 70/7460-1J. Specifically, the structure is required
to be painted and have obstruction lighting consisting of at least one
flashing red beacon on top and two steady-burning sidelights on opposite
sides at the midpoint. We find that CRC violated Section 17.23 by failing
to ensure that antenna structure #1019247 conform to the FAA's painting
and lighting recommendations set forth on the FAA determination of "no
hazard" for the structure, FAA Study Number 97-AWP-0713-OE.
18. Even if CRC believes the ASR for antenna structure #1019247 should be
modified, it must first engage in the process of pursuing such a
modification. We have no evidence that CRC has even attempted to file a
request with the FAA to modify the painting and lighting requirements for
antenna structure #1019247. Consequently, CRC must comply with the current
ASR requirements imposed on the antenna structure.
19. Because we find that antenna structure #1019247 is required to be
painted and lighted in accordance with the relevant FAA Notice, we find
that CRC's argument that none of the Rules listed above apply to antenna
structure #1019247 is moot. Contrary to its assertions, CRC's compliance
with these Rules is not voluntary. We are particularly troubled by CRC's
assertion that "CRC was not the owner of a registered structure until it
voluntarily submitted a notification of change of ownership in September
of 2005, well after the alleged violations." CRC stated in its response to
the Los Angeles Office LOI that it acquired antenna structure #1019247 in
August 2004. CRC's failure to timely update the ownership information in
the ASR for antenna structure #1019247 does not shield it from liability
for its violations of the Rules beginning in August 2004, when it acquired
the antenna structure.
20. CRC also argues that even if it did violate any of the Rules listed
above, the proposed forfeiture amount should be cancelled or reduced.
Specifically, CRC states that its failure to timely update the ownership
information for antenna structure #1019247 did not delay the Los Angeles
Office in contacting CRC about the light outage on the structure. We
disagree. In fact, CRC's failure to update the ownership information
required the Los Angeles Office to first contact the former owner of the
structure in order to determine who was responsible for the structure.
Even after the Los Angeles Office contacted CRC, eight months passed
before CRC finally updated the ownership information for the structure,
despite repeated inquiries from the Los Angeles Office.
21. Additionally, CRC argues that its cooperation with the Commission
during the investigation warrants a reduction or cancellation of the
proposed forfeiture. We disagree. The Commission has stated in the past
that an entity is expected to correct errors when they are brought to the
entity's attention and that such correction is not grounds for a downward
adjustment in a forfeiture.
22. Finally, CRC argues that the proposed forfeiture should be reduced
because "CRC has no prior history of noncompliance with applicable FCC
regulations." The president of CRC, James Kay, however, does have a
history of noncompliance. In a prior proceeding, the Commission found that
Kay deliberately withheld material information from the Commission, in
violation of Section 1.17 of the Rules, and issued a forfeiture of $10,000
to Kay. Because of Kay's previous noncompliance, we are unable to find
that CRC has a history of compliance with the Rules.
23. We have examined CRC'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 CRC willfully and repeatedly
violated Section 303(q) of the Act, and Sections 17.23, 17.47, 17.48,
17.49, and 17.57 of the Rules. Considering the entire record and the
factors listed above, we find that neither reduction nor cancellation of
the proposed $13,000 forfeiture is warranted.
IV. ORDERING CLAUSES
24. 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, Communications Relay Corporation
IS LIABLE FOR A MONETARY FORFEITURE in the amount of $13,000 for willfully
and repeatedly violating Section 303(q) of the Act Sections 17.23, 17.47,
17.48, 17.49, and 17.57 of the Rules.
25. 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, Room 1A625, 445 12th Street, S.W., Washington, D.C.
20554.
26. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Communications
Relay Corporation at its address of record, and Robert J. Keller, Esquire,
its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S 303(q).
47 C.F.R. SS 17.23, 17.47, 17.48, 17.49 and 17.57.
See FAA Circular Number 70/7460-1J, Chapters 3, 4, 5, 13.
The agent also contacted the FAA's Hawthorne Automated Flight Service
Station and reported the outage.
See Application No. A0467617, filed September 26, 2005. The Commission
granted the application and updated the ownership information on December
30, 2005.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632900007
(Enf. Bur., Western Region, Los Angeles Office, released January 19,
2006).
47 U.S.C. S 303(q).
47 C.F.R. SS 17.23, 17.47, 17.48, 17.49 and 17.57.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(D).
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. S 303(q).
47 C.F.R. S 17.21(a). See Max Media of Montana, LLC, 18 FCC Rcd 21375
(2003).
47 C.F.R. S 17.23.
Per FAA Circular Number 70/7460-1J, Chapters 3, 4, 5, 13.
Under Section 503(b)(6) of the Act, 47 U.S.C. S503(b)(6), we may only
propose forfeitures to non-licensees for apparent violations that occurred
within one year of the date of the NAL. However, Section 503(b) does not
bar us from assessing whether CRC's conduct prior to that time period
apparently violated the Act in determining the appropriate forfeiture
amount for those violations that occurred within the one-year statute of
limitations. Inphonic, Inc., 2005 WL 1750418 (FCC 05-145, released July
25, 2005) at P 24.
47 C.F.R. S 17.47(a)(1).
47 C.F.R. S 17.47(a)(2).
47 C.F.R. S 17.48.
47 C.F.R. S 17.49.
47 C.F.R. S 17.57.
See Application No. A0467617, filed September 26, 2005. The Commission
granted the application and updated the ownership information on December
30, 2005.
CRC attaches an engineering drawing for the structure to demonstrate its
argument. Response at Exhibit A.
Response at 3.
47 C.F.R. S 17.21(a). We note that in its Response, CRC neglected to
include the phrase "or when they require special aeronautical study" when
quoting Section 17.21(a). Response at 3.
47 C.F.R. S 17.23.
The ASR for antenna structure #1019247 also states that the structure is
62.1 meters in height.
See FAA Circular Number 70/7460-1J, Chapters 3, 4, 5, 13.
See [1]http://wireless.fcc.gov/antenna/index.htm.
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76 (2002).
47 C.F.R. S 1.17.
James Kay, 17 FCC Rcd 1834 (2002) aff'd sub nom. Kay v. Federal
Communications Commission, 396 F.3d 1184 (D.C. Cir. 2005) cert. denied,
126 S.Ct. 176 (2005).
47 U.S.C. S 303(q).
47 C.F.R. SS 17.23, 17.47, 17.48, 17.49 and 17.57.
47 U.S.C. SS 303(q), 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 17.23,
17.47, 17.48, 17.49, 17.57.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-2554
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Federal Communications Commission DA 06-2554
References
Visible links
1. http://wireless.fcc.gov/antenna/index.htm