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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Southern Classic Millworks, LLC File No. EB-08-OR-0147
)
Owner of Antenna Structure Located at NAL/Acct. No. 200932620001
)
Coordinates N30DEG 30' 20" x W091DEG FRN 0015398431
01' 25.7" )
)
)
MEMORANDUM OPINION AND ORDER
Adopted: September 24, 2009 Released: September 25, 2009
By the Deputy Bureau Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("MO&O"), we deny the petition
for reconsideration filed by Southern Classic Millworks, LLC
("Millworks"), owner of the antenna structure located at coordinates
N30DEG 30' 20" x W091DEG 01' 25.7" in Greenwell Springs, Louisiana
("Tower"), of the Forfeiture Order issued February 4, 2009. The
Forfeiture Order imposed a monetary forfeiture in the amount of $3,000
for Millworks' willful and repeated violation of Section 17.4(a) of
the Commission's Rules ("Rules"). The noted violations involved
Millworks' failure to register its antenna structure with the
Commission.
II. BACKGROUND
2. On July 5, 2006, in response to a complaint regarding a tower light
outage at 14461 Frenchtown Road, Greenwell Springs, Louisiana, agents
from the Commission's New Orleans Office of the Enforcement Bureau
("New Orleans Office") contacted Millworks, the owner of the land at
that address and on which the Tower is located. The agents learned
from the Millworks' employee responsible for the company's antenna
structures that it had recently purchased the Tower. This person
indicated that Millworks was unaware of the Antenna Structure
Registration ("ASR") requirement and was instructed to have the Tower
registered in the ASR database and have the registration number posted
at the structure's base. In addition, on July 12, 2006, an agent from
the New Orleans Office instructed one of Millworks' owners to register
the Tower and have the registration number posted at the structure's
base. On August 1, 2006, Millworks responded by providing evidence
that a radio licensee was a tenant on the Tower. On August 8, 2006,
Millworks further informed the New Orleans Office that the previous
owner failed to register the Tower.
3. On June 3, 2008, in response to a subsequent complaint alleging
violations concerning the Tower, agents from the New Orleans Office
conducted an inspection of the Tower. The Tower is 500 feet in height
above ground level and was hosting a radio licensee. The Tower did not
have an ASR number posted at or around its base. The agents consulted
the ASR database and found that the Tower still was not registered.
4. On June 5, 2008, agents from the New Orleans Office interviewed one of
Millworks' owners about the structure, who stated that he believed the
Tower had been registered in 2006 along with another structure owned
by Millworks. The employee responsible for the company's antenna
structures, however, was unable to provide documentation showing that
the Tower had been registered. Those agents again informed Millworks'
owner and the employee responsible for the company's antenna
structures that they were required to register the Tower.
5. On October 8, 2008, an agent from the New Orleans Office again spoke
with the Millworks' employee responsible for the company's antenna
structures, the same person with whom he had spoken on June 5. This
person stated the Tower still was unregistered. This person also
stated that one of Millworks' owners was in the process of finding a
company to manage the antenna structure. As of November 6, 2008,
review of the ASR database showed that the Tower was still not
registered.
6. On November 20, 2008, the New Orleans Office issued a Notice of
Apparent Liability for Forfeiture to Millworks in the amount of three
thousand dollars ($3,000), for the apparent willful and repeated
violation of Section 17.4(a) of the Rules. Millworks failed to submit
a response to the NAL. On February 4, 2009, the Bureau released a no
response Forfeiture Order, imposing a $3,000 forfeiture. On February
24, 2009, Millworks filed a petition for reconsideration requesting
reduction or cancellation of the forfeiture.
III. DISCUSSION
7. The 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
Millworks' petition, 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 any
other such matters as justice may require.
8. A petition for reconsideration that relies on facts not previously
presented to the designated authority may be granted only if: (1) the
designated authority determines that consideration of the facts relied
on is required in the public interest; (2) the petition relies on
facts which relate to events which occurred or circumstances which
have changed since the last opportunity to present such matters; or
(3) the petition relies on facts unknown to petitioner until after his
last opportunity to present such matters. All of the information
provided in the petition for reconsideration was available and known
to Millworks when it was provided an opportunity to respond to the
NAL. Moreover, we do not find that the public interest requires
consideration of the facts alleged in the petition for
reconsideration.
9. In its petition for reconsideration, Millworks claims that, because it
is in the cabinet business, not communications, it is unfamiliar with
Commission rules and requirements. Millworks claims that one of its
secretaries spoke to someone at the Commission to explain that its
Tower is in close proximity to another tower of similar height and
age, and was told that one registration for both towers was
sufficient. Millworks does not, however, disclose or submit any
documentation regarding the content of this alleged discussion with
Commission staff.
10. Even if the pubic interest requires consideration of these alleged
facts, and even assuming such alleged conversation took place, it does
not warrant a grant of the Petition. The Commission has long held that
statements by individual Commission staff members are not binding on
the Commission, and the Commission has repeatedly warned that parties
who rely on staff advice or interpretations do so at their own risk.
Moreover, an agent from the New Orleans Office informed Millworks on
July 5 and 12, 2006, and June 5, 2008, that the Tower was required to
be registered. Thus, even if a staff member previously advised
Millworks that the Tower need not be registered, Millworks was
provided ample actual notice that registration of the Tower was
required prior to release of the NAL on November 20, 2008.
11. Once it received the NAL, Millworks asserts that it promptly hired an
experienced broadcast engineer to register the Tower, which was
completed on February 19, 2009. However, the Commission has long held
that post-inspection corrective action taken to come into compliance
with the Rules is expected, and such corrective action does not
nullify or mitigate any prior forfeitures or violations. Accordingly,
we find that Millworks' corrective action does not provide grounds to
reconsider or reduce the forfeiture. Millworks adds that registration
of the other nearby tower should have provided "adequate notice to the
Federal Aviation Administration ("FAA") and airplane pilots of the
hazard to aviation in the area." Regardless of whether the other
registered tower alleviated, in whole or in part, the hazard to air
traffic, Section 17.4(a) of the Rules requires that the owner of any
proposed or existing antenna structure that requires notice of
proposed construction to the FAA must register the structure with the
Commission.
12. Finally, Millworks claims that it was unaware that it had to respond
so quickly to the NAL prior to issuance of the Forfeiture Order.
Paragraph 11 of the NAL, however, clearly states that a response or
payment was due within thirty days of release of the NAL. The
Forfeiture Order was issued February 4, 2009, 44 days after the NAL
response or payment was due.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, that the Petition for Reconsideration filed by
Southern Classic Millworks, LLC IS DENIED.
14. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Southern Classics
Millworks, LLC IS LIABLE FOR A MONETARY FORFEITURE in the amount of
three thousand dollars ($3,000) for violation of Section 17.4(a) of
the Rules.
15. 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.
Millworks will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
16. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Southern Classic
Millworks, LLC at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dana Shaffer
Deputy Bureau Chief, Enforcement Bureau
Southern Classic Millworks, LLC, Forfeiture Order, 24 FCC Rcd 1246 (Enf.
Bur. South Central Region, 2009) ("Forfeiture Order").
47 C.F.R. S: 17.4(a).
Millworks corrected the lighting outage on the antenna structure on July
6, 2006.
This complaint involved a lighting outage and unregistered tower; once
contacted, Millworks addressed this issue, notifying the Federal Aviation
Administration of the lighting outage on the antenna structure on June 5,
2008.
Southern Classic Millworks, LLC, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200932620001 (Enf. Bur., New Orleans Office,
November 20, 2008) ("NAL").
Although Millworks' letter was not captioned as a "Petition for
Reconsideration," we have interpreted it as such. The letter was
originally sent to the New Orleans Office, but it was stamped received by
the Secretary's Office on March 4, 2009.
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 C.F.R. S: 1.106(c).
See e.g., Roamer One, Inc. and Certain 220 MHz Non-Nationwide Licensees,
Order, 17 FCC Rcd 3287, n.26 (2002), citing Applications of Hinton
Telephone Company, Memorandum Opinion and Order on Reconsideration, 10 FCC
Rcd 11625, 11637 (1995) and AAT Electronics Corp., 53 RR 2d 1241, 1225-26
(1983), aff'd sub nom., P&R Temmer v, FCC, 743 F.2d 918, 931 (D.C. Cir.
1984).
Millworks notes that the recently hired engineer stated he has been
registering towers for years and had always believed that "one
registration was sufficient for two identical towers." The fact that
Millworks and its engineer held the same mistaken belief regarding the
registration requirements does not negate the fact that the Rules require
separate registration of towers.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994), Rama
Communications, Inc., Memorandum Opinion and Order, 24 FCC Rcd 4981 (Enf.
Bur. 2009), Bethune-Cookman College, Inc.. Forfeiture Order, 24 FCC Rcd
4513 (South Central Region 2009).
Millworks petition for reconsideration at 2.
47 C.F.R. S: 17.4(a). Section 17.7(a) of the Rules requires notification
to the FAA for any construction or alteration of more than 200 feet in
height above ground level. 47 C.F.R. S: 17.7(a). Millworks' Tower required
notification to the FAA because the structure exceeded 200 feet in height.
Millworks incorrectly referred to the NAL as a Notice of Violation. No
Notice of Violation was issued to Millworks by the New Orleans Office.
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 11.35(a), 73.3526.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-2101
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Federal Communications Commission DA 09-2101