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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Threshold Communications ) File Number: EB-07-SF-101
Antenna Structure Registrant ) NAL/Acct. No.: 200732960005
Waterford, CA ) FRN: 0001547116
ASR # 1015782 )
))
FORFEITURE ORDER
Adopted: March 19, 2008 Released: March 21, 2008
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 eight thousand dollars ($8,000) to Threshold
Communications ("Threshold"), owner of antenna structure #1015782,
near Waterford, California, for repeated violations of Section 303(q)
of the Communications Act of 1934, as amended, ("Act"), and Sections
17.51(a), 17.47(a), and 17.48 of the Commission's Rules ("Rules"). On
September 28, 2007, the Enforcement Bureau's San Francisco Office
issued a Notice of Apparent Liability for Forfeiture ("NAL") in the
amount of $10,000 to Threshold for failing to exhibit the structure's
red obstruction lighting from sunset to sunrise; by failing to make
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; and by
failing to notify the nearest Flight Service Station of the Federal
Aviation Administration ("FAA") of the outage of the flashing
obstruction lights on antenna structure #1015782. In this Order, we
consider Threshold's arguments that the proposed forfeiture should be
cancelled or reduced because Threshold took immediate steps to rectify
the problem; the tower involved was one of a three tower array; the
violation was not willful; Threshold knew about the problem prior to
involvement by the Commission; and because Threshold has a history of
compliance with the Commission's Rules.
II. BACKGROUND
2. Antenna structure #1015782 is an antenna tower of 82.8 meters (271.7
feet) in height above ground. It is tower one in a three-tower array
used by KVIN to serve Ceres, California. Threshold Communications is
the licensee of KVIN. According to the antenna structure registration
("ASR") for antenna structure #1015782, the structure is required to
have painting and lighting in accordance with specific Chapters of the
FAA Advisory Circular for Obstruction Marking and Lighting.
Specifically, the structure is required to be painted, and have, at
its top, a flashing beacon equipped with two lamps and red filters,
along with at least two lamps enclosed in red obstruction light globes
located on a level at approximately one-half the overall height of the
tower. The lights on antenna structure #1015782 are required to burn
continuously or be controlled by a light sensitive device.
3. On May 29, 2007, at approximately 8:00 p.m. PDT, an agent from the
Enforcement Bureau's San Francisco Office observed the three-tower
array used by KVIN and noted that a top tower light on antenna
structure #1015782 was extinguished. The next day, on May 30, 2007, at
approximately 9:00 p.m. PDT, the San Francisco agent again observed
the three-tower array used by KVIN and noted that a top tower light on
antenna structure #1015782 was extinguished.
4. On May 31, 2007, the San Francisco agent contacted the Federal
Aviation Administration ("FAA") Flight Service Station to determine if
the tower light outage had been reported. The FAA reported that they
had not received any information concerning a tower light outage and
advised that a Notice to Airmen ("NOTAM") would be published
concerning the reported tower light outage for antenna structure
#1015782. The FAA Flight Service Station then issued NOTAM number
05103.
5. On June 11, 2007, San Francisco agents conducted an inspection of the
KVIN main studio located at 961 North Emerald Avenue, Modesto,
California. The agents reviewed the KVIN station records and found no
entries prior to June 11, 2007, concerning light outages on the KVIN
three-tower array, including antenna structure #1015782. The agents
also interviewed the KVIN general manager, who acknowledged that he
was not aware of any lighting problems on the KVIN three-tower array
until the morning of the inspection by the San Francisco agents. Later
that day, the general manager accompanied the San Francisco agents to
the site of the three-tower array. The general manager was unable to
illuminate the top light on antenna structure #1015782, and determined
that there was some damage to the electronic system which controlled
the flashing mechanism for antenna structure #1015782.
6. On September 28, 2007, the San Francisco Office issued a NAL in the
amount of $10,000 to Threshold. In the NAL, the San Francisco Office
found that Threshold apparently repeatedly violated Section 303(q) of
the Act, and Sections 17.51(a), 17.47(a) and 17.48 of the Rules, by
failing to maintain the required red obstruction lighting on antenna
structure #1015782; by failing to monitor, either visually or through
an automatic monitoring system, the antenna structure's lights; and by
failing to report the extinguishment of the flashing obstruction
lighting on antenna structure #1015782. Threshold filed a response
("Response") to the NAL on October 25, 2007. In its Response,
Threshold argues that the proposed forfeiture should be cancelled or
reduced because Threshold took immediate steps to rectify the problem;
the tower involved was one of a three tower array; the violation was
not willful; Threshold knew about the problem prior to involvement by
the Commission; and Threshold has a history of compliance with the
Commission's Rules.
III. DISCUSSION
7. 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. In examining
the 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.
8. 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 17.51 of the Rules states that all red
obstruction lighting shall be exhibited from sunset to sunrise unless
otherwise specified. According to its ASR, antenna structure #1015782
is required to have, at its top, a flashing beacon equipped with two
lamps and red filters, along with at least two lamps enclosed in red
obstruction light globes located on a level at approximately one-half
the overall height of the tower. Section 17.47(a) requires that the
owner of any antenna structure which is registered with the Commission
and has been assigned lighting specifications shall 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. Section 17.48 of the Rules
requires the owner of an antenna structure 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 or any top steady burning light or any flashing
obstruction light, regardless of its position on the antenna
structure, not corrected within 30 minutes.
9. In its Response, Threshold does not dispute the facts recited in the
NAL. Instead, it states that it has made changes to its monitoring
procedure to insure that these events do not occur again. While we
applaud Threshold's efforts, the Commission has consistently held that
an antenna structure registrant is expected to correct errors when
they are brought to the licensee's attention and that such correction
is not grounds for a downward adjustment in the forfeiture.
Consequently, we find that Threshold's efforts to ameliorate its
violation, after the June 11, 2007, inspection by the San Francisco
agents, are not a basis for reduction of the forfeiture. Threshold
also argues that, as indicated in the NAL, it was made aware of the
violation by one of its employees the same morning that that the San
Francisco agents conducted the inspection. Threshold concludes that it
would have rectified the problem on its own, regardless of the
inspection by the San Francisco agents. That conclusion, however, is
not a basis for a reduction in the proposed forfeiture. Reductions
based on good faith efforts to comply generally involve situations
where violators demonstrate that they initiated measures to correct or
remedy violations prior to a Commission inspection or investigation.
While Threshold apparently knew of the violation the morning of June
11, 2007, prior to the San Francisco agents' inspection, it has
produced no evidence that it initiated repairs prior to that
inspection. Therefore, we cannot conclude that Threshold made any
efforts to comply prior to a Commission inspection and, consequently,
we decline to reduce the forfeiture amount on that basis.
10. Threshold further states that the "tower light which was not
operating, is one of 3 towers, all in close proximity." While
Threshold acknowledges that a NOTAM should have been issued by the
FAA, as it eventually was, when it was requested by the San Francisco
agent, Threshold argues that with the other two towers illuminated,
"the actual danger to Airmen was greatly reduced." We disagree. We
find that the fact that antenna structure #1015782 is part of a
three-tower array does not alleviate Threshold's responsibility to
keep the structure properly lighted, nor does it justify a reduction
in the proposed forfeiture. The FAA requires antenna structure
#1015782 to be lighted, and Threshold has produced no evidence to
dispute that requirement, consequently, Threshold must abide by the
FAA lighting requirements, as detailed on its antenna structure
registration, as well as the Commission's antenna structure rules.
11. Threshold also argues that its violations were not willful. We note
that the San Francisco Office did not find any apparent willful
violation of the Communications Act and the Commission's Rules.
Rather, it found that Threshold apparently repeatedly violated the
Communications Act and the Commission's Rules. Because we find the
violations to be repeated, we need not address Threshold argument that
the violation was not willful. Finally, Threshold contends that it has
a history of overall compliance with the Commission's Rules. We have
reviewed our records and we concur. Consequently, we reduce
Threshold's forfeiture amount to $8,000.
12. We have examined the 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 Threshold
repeatedly violated Section 303(q) of the Act, and Sections 17.51(a),
17.47(a) and 17.48 of the Rules. Considering the entire record and the
factors listed above, we find that reduction of the proposed
forfeiture to $8,000 is warranted.
13. We also note that, on March 12, 2008, at approximately 11:30 p.m. PDT,
a San Francisco agent drove past Threshold's three-tower array in
Waterford, California, described above, and observed that one of three
towers in the array had no lights illuminated. Consequently, we
require Threshold to report to the San Francisco Office, Western
Region, no more than thirty (30) days following the release of this
Order, how it achieves compliance with Section 303(q) of the Act, and
Sections 17.51(a), 17.47(a), and 17.48 of the Rules, for all three of
the towers in its array in Waterford, California. Threshold's report
must be submitted in the form of an affidavit signed by an officer or
director of Threshold.
IV. ORDERING CLAUSES
14. 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, Threshold
Communications, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$8,000 for willfully and repeatedly violating Section 303(q) of the
Act, and Sections 17.51(a), 17.47(a) and 17.48 of the Rules.
15. IT IS FURTHER ORDERED, pursuant to Section 403 of the Act, that
Threshold Communications, must submit the report described in
paragraph 13, above, within no more than thirty (30) days following
the release of this Order, to the Federal Communications Commission,
Enforcement Bureau, Western Region, San Francisco Office, 5653
Stoneridge Drive, Ste. 105, Pleasanton, California, 94588-8543 and
must include the NAL/Acct. No. referenced in the caption.
16. 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.
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Threshold
Communications, at its address 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. S:S: 17.51(a), 17.47(a), 17.48.
FAA Circular Number 70/7460-1F, Chapters 3, 4, and 5.
FAA Circular Number 70/7460-1F, Chapter 3.
FAA Circular Number 70/7460-1F, Chapters 4 and 5.
FAA Circular Number 70/7460-1F, Appendix 2, Figure 1.
FAA Circular Number 70/7460-1F, Chapter 5.
According to the U.S. Naval Observatory, sunset in Waterford, California,
occurred at 8:17 p.m., PDT, on May 29, 2007.
The agents found one entry, dated June 11, 2007, which noted the light
outage. The entry was made prior to the agents' arrival at the main
studio.
The general manager also produced for the agents a receipt showing that
the light bulbs for all the lights on the three-tower array had been
replaced on January 29, 2007.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732960005
(Enf. Bur., Western Region, San Francisco Office, released September 28,
2007).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
FAA Circular Number 70/7460-1F, Chapters 4 and 5.
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48.
See AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
See Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 (2003), recon.
denied, 18 FCC Rcd 25481 (2003).
See Multicultural Radio Broadcasting, Inc., 22 FCC Rcd 10768 (EB 2007).
See Hoffman Communications, Incorporated, Forfeiture Order, DA 03-4064,
2003 WL 22998837 (rel. December 23, 2003); Gold Coast Broadcasting
Company, 18 FCC Rcd 8576 (EB 2003).
We note that antenna structure #1015782 is tower one in the three tower
array at issue, and that the other two towers, antenna structure #1015784
(the third tower in the array) and antenna structure #1015783 (the middle
tower in the array), both have painting and light requirements as well,
according to their antenna structure registrations.
See Section 503(b)(1) of the Act, 47 U.S.C. S: 503(b)(1) (violator liable
for forfeiture if violation is willful or repeated).
On March 13, 2008, a San Francisco agent contacted the FAA Flight Service
Station to determine if the tower light outage had been reported. The FAA
reported that they had not received any information concerning the tower
light outage and issued a NOTAM.
47 U.S.C. S:S: 303(q), 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
17.47(a), 17.48, 17.51(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-605
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Federal Communications Commission DA 08-605