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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-06-BF-024
Forever of PA, Inc. )
NAL/Acct. No.
Antenna Structure Registrant ) 200732280002
ASR # 1027115 ) FRN 0006161855
Hollidaysburg, PA )
)
FORFEITURE ORDER
Adopted: February 20, 2008 Released: February 21, 2008
By the Acting Regional Director, Northeast 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 Forever of PA, Inc.
("Forever") for willfully violating Sections 17.47, 17.48, and
17.51(a) of the Commission's Rules ("Rules") by failing to comply
with the antenna structure lighting, monitoring, and reporting
requirements specified for antenna structure # 1027115.
II. BACKGROUND
2. On February 22, 2007, the Commission's Buffalo Field Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$10,000 to Forever for failure to properly maintain the top red beacon
on antenna structure # 1027115, for failure to report to the Federal
Aviation Administration ("FAA") the outage of the top red beacon, and
for failure to ensure that a proper antenna structure monitoring
system was installed. The findings in the NAL were based, in part, on
the chief operator's statement to the agent during the inspection that
he was aware that Forever's monitoring system was not capable of
detecting single light outages. Forever submitted a response to the
NAL on March 13, 2007.
3. Forever does not dispute that the top beacon light on its tower was
out or that it failed to report the outage to the FAA, but requests a
cancellation or reduction of the forfeiture on several grounds. First,
Forever points to the corrective actions it took within days after the
FCC agent's inspection. Second, Forever claims that its actions cannot
be deemed willful because, contrary to the findings in the NAL,
Forever was not aware of the monitoring system's deficiencies until
advised of them by the FCC agent during the inspection and Forever
acquired the antenna structure monitoring system from the prior tower
owner.
III. DISCUSSION
4. We decline to cancel or reduce the proposed forfeiture based on the
actions Forever took after the agent's 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.
5. We likewise decline to reduce or cancel the proposed forfeiture based
on Forever's claim that the violation was not "willful" because
Forever was not aware of the monitoring system's deficiencies until
advised by the FCC agent at the time of inspection. In support of its
claim, Forever submits a declaration from its chief operator, who now
alleges that he never told the agent that he knew the antenna
structure's monitoring system was unable to detect single light
outages. According to the FCC agent's contemporaneous handwritten
notes, however, the chief operator stated, prior to the inspection of
the monitoring system's circuitry, that the system needed a
modification in order to detect single light outages. We find no
reason to rely here on the chief operator's declaration rather than
the contemporaneous handwritten notes of our agent, who had no motive
to misrepresent what the chief operator stated during the inspection.
Because we conclude that it is appropriate to rely on the statement
made by the chief operator at the time of the inspection, we find that
Forever was aware of the monitoring system's deficiencies and
therefore the violation was willful.
6. We note that, even if we were to accept Forever's claim that it was
not previously aware of the monitoring system's deficiencies, we still
would find that Forever's violation was willful. Section 312(f)(1) of
the Act, which applies to violations for which forfeitures are
assessed under Section 503(b) of the Act, provides that "[t]he term
'willful', when used with reference to the commission or omission of
any act, 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...." "Willful" does not require a finding that there was an intent
to engage in a violation. Here, Forever knowingly operated the
monitoring system. Moreover, if Forever had adequately complied with
Section 17.47(b), which requires tower owners to "inspect at intervals
not to exceed 3 months all automatic or mechanical control devices,
indicators, and alarm systems associated with the antenna structure
lighting. . . ," Forever would have discovered that its monitoring
system was not capable of detecting single light outages. In this
regard, it was Forever's "omission" that resulted in its willful
operation of a monitoring system that could not detect single light
outages, in violation of Section 17.47 of the Commission's Rules.
IV. ORDERING CLAUSES
7. 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, Forever of PA, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $10,000 for
willfully violating Sections 17.47, 17.48, and 17.51(a) of the Rules.
8. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment[s] by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
9. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by First Class Mail and Certified Mail Return Receipt Requested
to Forever of PA, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Acting Regional Director, Northeast Region
Enforcement Bureau
47 C.F.R. S:S: 17.47, 17.48, and 17.51(a).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732280002
(Enf. Bur., Buffalo Office, released February 22, 2007) ("NAL").
Forever notes in its response to the NAL that when it purchased the tower
from Mac Beth Communications, Inc. ("Mac Beth") in 2000, the purchase
agreement stated that the tower was in full compliance with the
Commission's Rules. Any representations made to Forever by Mac Beth are
irrelevant here. Forever had an obligation as the new tower owner to
independently ensure that the monitoring system functioned properly. For
similar reasons, we note that, although the NAL assumes that Forever
installed the monitoring system, the findings in the NAL are not dependent
on whether Mac Beth or Forever initially installed the monitoring system.
As the current owner, Forever is responsible for the proper functioning of
the monitoring system.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994); see
also AT&T Wireless Services, Inc., 17 FCC Rcd 21871-76 (2002).
We note that the chief operator erroneously states in his declaration that
"it was determined that the Tower's lighting monitor interface cable was
incorrectly wired to the Station's remote control." The problem with the
monitoring system was not that it was improperly wired, but rather that it
needed an interface device so that it could detect single light outages.
Indeed, this is confirmed in Forever's response to the NAL, in which it
states that "[o]n February 24, 2006, an interface panel for the Burk
remote was ordered. This panel will expand the Burk Technology remote
control so it can individually break out the tower light beacon
indicators." We also are not persuaded by the chief operator's statement
in the declaration that "it [the tower] was not showing a failure as it
has in the past." The tower's monitoring system was capable of showing an
overall tower light outage, so it is reasonable to assume that the
monitoring system would have worked in the past to signal a complete light
outage on the tower. Forever did not submit any evidence that the
monitoring system had ever signaled a single light outage.
47 U.S.C. S: 312(f)(1).
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
Id., citing MCI Telecommunications Group, 3 FCC Rcd 509, 514 n.22 (1988);
Hale Broadcasting Corporation, 79 FCC Rcd 169, 171 (1980).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
Federal Communications Commission DA 08-368
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Federal Communications Commission DA 08-368