Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554


                                  )                               
                                                                  
                                  )                               
     In the Matter of                                             
                                  )                               
     ERF Wireless, Inc.               File No. EB-08-HU-0128      
                                  )                               
     Owner of Antenna Structure       NAL/Acct. No. 200932540001  
                                  )                               
     Number 1052967                   FRN 0017732520              
                                  )                               
     Monaville, Texas                                             
                                  )                               
                                                                  
                                  )                               


                                FORFEITURE ORDER

   Adopted: May 27, 2009 Released: May 29, 2009

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of ten thousand four hundred dollars ($10,400) to ERF
       Wireless, Inc. ("ERF Wireless"), owner of antenna structure number
       1052967, near Monaville, Texas, for willful and repeated violations of
       Sections 17.51(b)  and 17.57  of the Commission's Rules ("Rules"). The
       noted violations involve ERF Wireless' failure to continuously exhibit
       the medium intensity lighting on its antenna structure and failure to
       update the ownership information for its antenna structure.

   II. BACKGROUND

    2. On December 22, 2008, in response to a complaint of an unlit and
       improperly registered antenna structure, an agent from the
       Commission's Houston Office of the Enforcement Bureau ("Houston
       Office") reviewed the Commission's Antenna Structure Registration
       ("ASR") database. The database listed Bishop Tower Company as the
       owner of antenna structure number 1052967, near Monaville, Texas. The
       complaint alleged that ERF Wireless acquired the antenna structure
       over two years ago. The Commission's ASR database listed this
       structure as requiring a medium intensity obstruction light that is to
       be exhibited continuously. Later that same day, the agent drove out to
       the antenna structure site and observed that the medium intensity
       obstruction light on the top of the structure was not functioning.

    3. On December 29, 2008, an agent from the Houston Office observed
       antenna structure number 1052967 in Monaville, Texas, both prior to
       and after local sunset. The medium intensity obstruction light was not
       functioning. The agent then called the Federal Aviation Administration
       ("FAA") to determine if the structure owner had notified the FAA of
       the outage and whether a Notice to Airmen ("NOTAM") had been issued.
       The FAA reported that there was no current NOTAM for this structure,
       so the agent informed the FAA of the lighting outage.

    4. On March 2, 2009, an agent from the Houston Office observed antenna
       structure number 1052967 near Monaville, Texas, both prior to and
       after local sunset. The medium intensity obstruction light on the
       structure was not functioning. The agent then called the FAA to
       determine if the owner had notified the FAA about the outage and
       whether a NOTAM had been issued. The FAA reported that there was no
       current NOTAM for this structure, so the agent informed the FAA of the
       outage.

    5. On March 5, 2009, an agent from the Houston Office interviewed an
       employee of ERF Wireless about antenna structure number 1052967. The
       employee stated that ERF Wireless had purchased this antenna structure
       from Bishop Tower Company at least one year ago and he had no
       knowledge as to why it would not have been properly registered with
       the Commission. He also stated that ERF Wireless does not visually
       check the lights once every 24 hours and had not observed the
       structure lights for about 6 months. He said that ERF Wireless was not
       using an automatic alarm system to monitor the lights and that they
       were in the process of looking for a monitoring system. Later that
       same day, the agent accompanied by two employees of ERF Wireless
       inspected antenna structure number 1052967 and observed that the
       medium intensity obstruction light was not functioning. A visual
       inspection of the lighting equipment installed at the site revealed it
       was not functioning. As of March 26, 2009, the ASR database still
       listed Bishop Tower Company as the owner of antenna structure number
       1052967.

    6. On March 27, 2009, the Houston Office issued a Notice of Apparent
       Liability for Forfeiture to ERF Wireless in the amount of thirteen
       thousand dollars ($13,000), for the apparent willful and repeated
       violation of Sections 17.51(b)  and 17.57 of the Rules. ERF Wireless
       submitted a response to the NAL requesting a reduction or cancellation
       of the proposed forfeiture.

   III. DISCUSSION

    7. The proposed forfeiture amounts 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 ERF Wireless' 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 17.51(b) of the Rules states that all high intensity and
       medium intensity obstruction lighting shall be exhibited continuously
       unless otherwise specified. Antenna structure number 1052967 is
       required to exhibit continuously a medium intensity obstruction light.
       An agent from the Houston Office observed that the medium intensity
       strobe light on antenna structure number 1052967 was not functioning
       on December 22 and 29, 2008, and on March 2 and 5, 2009. ERF Wireless
       admitted that it had not observed the structure lights at least once
       every 24 hours and did not maintain a properly working automatic alarm
       system to detect the failure of the structure lights. Moreover, ERF
       Wireless failed to notify the FAA about the lighting outage.

    9. Section 17.57 of the Rules states that the owner of an antenna
       structure which is registered with the Commission must notify
       immediately the Commission upon any change in ownership information.
       ERF Wireless purchased antenna structure number 1052967 at least as
       early as March 2008. ERF Wireless was informed that it was not listed
       as the structure owner in the ASR database on March 2, 2009. However,
       as of March 24, 2009, the previous owner of the structure was still
       listed as the structure owner in the ASR database.

   10. In response to the NAL, ERF Wireless states that is has replaced the
       medium intensity light on its antenna structure, updated the ownership
       information in the ASR database, and is trying to install an alarm
       system for the structure lights. However, corrective action taken to
       come into compliance with the Rules after an inspection is expected,
       and does not nullify or mitigate any prior forfeitures or violations.

   11. Finally, ERF Wireless requests a reduction of the forfeiture, because,
       "in its five year history, ERF has no prior offenses." We have
       reviewed our records and conclude that the forfeiture should be
       reduced to $10,400, based on ERF Wireless' history of compliance with
       the rules.

   12. We have examined ERF Wireless' 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 reduce the proposed
       forfeiture to $10,400, based on ERF Wireless' history of compliance
       with the rules.

   IV. ORDERING CLAUSES

   13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
       1.80(f)(4) of the Commission's Rules, ERF Wireless, Inc. IS LIABLE FOR
       A MONETARY FORFEITURE in the amount of ten thousand four hundred
       dollars ($10,400) for violations of Sections 17.51(b) and 17.57 of the
       Rules.

   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. 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.
       ERF Wireless will also send electronic notification on the date said
       payment is made to SCR-Response@fcc.gov.

   15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail Return Receipt Requested to ERF Wireless,
       Inc. at its address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   47 C.F.R. S:S: 17.51(b), 17.57.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932540001
   (Enf. Bur., Houston Office, March 27, 2009) ("NAL").

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

   47 C.F.R. S: 1.80.

   47 U.S.C. S: 503(b)(2)(E).

   Section 17.47(a) of the Rules states 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 of such lights, to insure that all such lights are functioning
   properly as required; or alternatively, 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. 47 C.F.R.
   S: 17.47(a).

   The owner of an antenna structure is required 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." 47 C.F.R. S: 17.48.

   See e.g., Syntax-Brillian Corporation, Forfeiture Order and Notice of
   Apparent Liability for Forfeiture, 23 FCC Rcd 6323 (2008); AT&T Wireless
   Services, Inc., Forfeiture Order, 17 FCC Rcd 21866 (2002); Seawest Yacht
   Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).

   47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4), 17.51(b),
   17.57.

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

   Federal Communications Commission DA 09-1184

   1

   1

   Federal Communications Commission DA 09-1184