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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              )                                
                                                                         
                                        )                                


                          MEMORANDUM OPINION AND ORDER

   Adopted: March 12, 2008 Released: March 14, 2008

   By the Associate Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Memorandum Opinion and Order ("Order"), we deny the Petition
       for Reconsideration ("Petition") filed on January 22, 2007, by
       Communications Relay Corporation ("CRC"), registrant of antenna
       structure #1019247, in Claremont, California. CRC seeks
       reconsideration of the Forfeiture Order,  issued by the Western
       Region, Enforcement Bureau ("Region"), in which CRC was found liable
       for a monetary forfeiture in the amount of $13,000 for 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"). For the reasons discussed
       below, we deny CRC's Petition.

   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. 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 by the FAA. 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. Section 17.47 of the Rules 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. Section 17.48 of the Rules requires
       notification to the FAA of failures and repairs. Section 17.49
       requires detailed records be kept of lighting failures, adjustments,
       repairs and all FAA notifications. 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.

   10. 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 argued
       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.

   11. In the Forfeiture Order, the Region painstakingly and carefully
       addressed each of CRC's arguments, ultimately finding no merit in any
       of them. Specifically, the Region noted that CRC's primary argument,
       that this structure did not exceed 60 meters in height, completely
       missed the point that the structure was assigned painting and lighting
       requirements by the FAA, and that the structure's lights were
       repeatedly not functioning. The Region reiterated that 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
       . . . 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. Consequently the Region found 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. The Region also warned CRC that if it
       believed that the ASR for antenna structure #1019247 should be
       modified, it must first engage in the process of pursuing such a
       modification.

   12. The Region then concluded that because antenna structure #1019247 is
       required to be painted and lighted in accordance with the relevant FAA
       Notice, CRC's argument that Sections 17.23, 17.47, 17.48, 17.49 and
       17.57 of the Rules do not apply to antenna structure #1019247 was
       moot. The Region determined that, contrary to CRC's assertions, CRC's
       compliance with these Rules was not voluntary. The Region also found
       no merit in CRC's argument that CRC's 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. The Region found that, 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.

   13. The Region also found no merit in CRC's argument that its cooperation
       with the Commission during the investigation warranted a reduction or
       cancellation of the proposed forfeiture because 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. Finally, the
       Region found that, contrary to CRC's request for a reduction based on
       CRC's history of compliance with the Rules, the president of CRC,
       James Kay, had a history of noncompliance. Specifically, 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, the Region declined to find that CRC has
       a history of compliance with the Rules.

   III. DISCUSSION

   14. Reconsideration is appropriate only where the petitioner either
       demonstrates a material error or omission in the underlying order or
       raises additional facts not known or not existing until after the
       petitioner's last opportunity to present such matters. A petition for
       reconsideration that reiterates arguments that were previously
       considered and rejected will be denied.

   15. In its Petition, CRC raises the exact same issues previously raised in
       response to the NAL and detailed above, which have been thoroughly
       considered and rejected by the Region. CRC argues that the Region
       erred in rejecting these arguments but does not provide any new facts
       or explanations demonstrating that there was a material error in the
       Forfeiture Order. Once again CRC bases its argument on its allegation
       that antenna structure #1019247 does not exceed 200 feet above ground
       level, and consequently, CRC's compliance with the Rules cited was
       voluntary. We reiterate and affirm the decision rendered by the
       Region: that CRC repeatedly violated Section 303(q) of the Act and the
       Commission's antenna structure rules. The FAA's determination of "no
       hazard" for antenna 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. Section 17.23 of the Rules requires that antenna
       structures conform to the FAA's painting and light requirements set
       forth on the structure's determination of "no hazard." Antenna
       structure #1019247 did not comply with those requirements at the time
       of investigation. CRC was the owner of antenna structure #1019247 at
       the time of the investigation. Consequently, we find the Region did
       not err in rejecting CRC's arguments, and we affirm the Region's
       finding that CRC is liable for violating the antenna structure rules,
       as detailed above.

   16. CRC also argues that the Region erred by assigning the history of
       non-compliance of CRC's principal, James Kay, to CRC because Kay, as a
       long-time Commission licensee, has no history of non-compliance
       concerning antenna structure registration, marking or lighting. We
       disagree. The Region appropriately took into account Kay's history as
       a Commission licensee and regulatee generally when determining the
       appropriate forfeiture amount. The Commission has said in the past
       that the Enforcement Bureau is not limited to considering only
       violations of Rules concerning the same subject matter when weighing a
       history of compliance claim; the Bureau may also consider adjudicated
       findings of violations of the Act or Rules other than the current
       subject matter.

   17. We have considered the arguments raised by the CRC in its Petition and
       find they are without merit. Therefore, we deny the CRC's Petition,
       and affirm the Region's Forfeiture Order finding CRC liable for a
       forfeiture in the amount of $13,000.

   IV. ORDERING CLAUSES

   18. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
       Communications Act of 1934, as amended, and Section 1.106 of the
       Commission's Rules, the Petition for Reconsideration filed on January
       22, 2007, by Communications Relay Corporation, IS DENIED.

   19. 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 Commission's Rules,
       Communications Relay Corporation IS LIABLE FOR A MONETARY FORFEITURE
       in the amount of $13,000 for violating Section 303(q) of the Act,  and
       Sections 17.23, 17.47, 17.48, 17.49 and 17.57 of the Rules. 

   20. 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/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 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. 

   21. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail, Return Receipt Requested, to Communications
       Relay Corporation, at its address of record, and its counsel of
       record, Robert J. Keller, Esquire.

   FEDERAL COMMUNICATIONS COMMISSION

   George R. Dillon

   Associate Chief, Enforcement Bureau

   Communications Relay Corporation, 21 FCC Rcd 14651 (EB 2006).

   47 U.S.C. S: 303(q).

   47 C.F.R. S:S: 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.

   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.

   47 C.F.R. S: 17.47.

   47 C.F.R. S: 17.48.

   47 C.F.R. S: 17.49.

   47 C.F.R. S: 17.57.

   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. S:S: 17.23, 17.47, 17.48, 17.49 and 17.57.

   47 C.F.R. S: 17.21(a). The Region noted 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.

   21 FCC Rcd at 14655 - 14656.

   As of the date of this Order, no modification has been made to the ASR for
   antennas structure #1019247.

   The Region also stated that its was "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." 21 FCC Rcd at 14656.

   21 FCC Rcd at 14656.

   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).

   21 FCC Rcd at 14656 - 14657.

   See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., 15 FCC Rcd 18257, (EB
   2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain
   Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.
   967 (1966).

   EZ Sacramento, Inc., 15 FCC Rcd at 18257.

   CRC acknowledges that the arguments presented are similar to those made in
   its Response to the NAL, and asserts that the "representation" of these
   issues is proper because the Region is subordinate to the Bureau, and
   "presenting the matter to the Bureau Chief is a prerequisite for
   Commission review" pursuant to Section 1.115(c) of the Rules, 47 C.F.R. S:
   1.115(c). Even in this assertion, CRC is incorrect. As stated above, a
   petition for reconsideration that reiterates arguments that were
   previously considered and rejected will be denied. Additionally, the
   Commission has determined that Section 1.115(c) requires that the
   designated authority must pass on issues prior to the filing of an
   application for review, but has never required that the designated
   authority in all cases is the Chief of the relevant Bureau. See In the
   Matter of Application of Educational Television Association of
   Metropolitan Cleveland, Inc., 18 FCC Rcd 15117 (2003) (A branch of the
   former Mass Media Bureau was relevant designated authority to pass on
   issues prior to the filing of an application for review). In the present
   case, the questions of fact and law raised by CRC were already considered
   and rejected by the appropriate authority, the Western Regional Director,
   in the Forfeiture Order.

   Contrary to CRC's assertion, the Region's determination is not "an absurd
   result" resulting in "monetary forfeitures to owners of towers that in
   fact are not subject to the lighting requirement." CRC states that it is
   in the process of modifying its registration information for antenna
   structure #1019247. We note that as of the date of this Order, no
   modification of the antenna structure registration for antenna structure
   #1019247 has taken place. Even if CRC filed for a new FAA study, there is
   no evidence that the FAA would not require painting and lighting on
   antenna structure #1019247.

   SBC Communications, Inc., 16 FCC Rcd 12306, 12309 (2001).

   47 U.S.C. S: 405.

   47 C.F.R. S: 1.106.

   47 U.S.C. S: 503(b).

   47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).

   47 U.S.C. S: 303(q).

   47 C.F.R. S:S: 17.23, 17.47, 17.48, 17.49 and 17.57.

   47 U.S.C. S: 504(a).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 08-563

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   Federal Communications Commission DA 08-563