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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Electronic Corporate Pages, Inc. File No. EB-09-HU-0060
)
Owner of Antenna Structure NAL/Acct. No. 201032540001
)
ASR # 1048971 FRN 0014645576
)
Florence, Texas
)
)
FORFEITURE ORDER
Adopted: January 15, 2010 Released: January 20, 2010
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 four thousand dollars ($4,000) to Electronic Corporate
Pages, Inc. ("ECPI"), owner of antenna structure number 1048971, in
Florence, Texas for willful and repeated violation of Sections
17.51(b) and 17.57 of the Commission's Rules ("Rules"). The noted
violations involve ECPI's failure to exhibit all medium intensity
obstruction lighting as specified and failure to notify immediately
the Commission upon change in ownership information.
II. BACKGROUND
2. On August 11, 2009, the Commission's Houston Office of the Enforcement
Bureau ("Houston Office") received a complaint stating that antenna
structure number 1048971 was unlit and the owner listed in the
registration could not be reached. On that date, an agent from the
Houston Office consulted the Commission's Antenna Structure
Registration ("ASR") database and noted that Clifford Langford was
listed as the owner of antenna structure number 1048971.
3. On September 2, 2009, agents from the Houston Office inspected antenna
structure number 1048971. According to the registration for ASR number
1048971, the antenna structure is to display medium intensity
obstruction lighting during both daytime and nighttime operation.
During the daytime, the agents observed that the structure's medium
intensity obstruction lights were not operational. The agents asked a
person conducting work on the tower the name of the current tower
owner. The worker stated that antenna structure number 1048971 was
owned by ECPI. Agents contacted the owner of ECPI, who stated he
purchased the antenna structure in January 2009 and had not updated
the registration to reflect the new ownership. The owner, who was
unaware of the outage, also stated the obstruction lighting for
antenna structure number 1048971 was not currently being monitored by
daily visual observations or by an automatic alarm system. Later that
day, after inspecting the tower, the owner informed the agent that the
electricity to the structure had been turned off. The owner added that
the power had been restored and that the lights were now functioning
properly.
4. On September 4, 2009, ECPI's owner informed an agent from the Houston
Office that the individual who was visually monitoring the obstruction
lighting recently moved away. The owner did not know when the
individual moved away and admitted that no other person had been hired
to resume the daily observations.
5. On September 8, 2009, ECPI's owner informed an agent from the Houston
office that a person had been hired to monitor visually the lights on
antenna structure number 1048971 on a daily basis until an automatic
monitoring system is functional.
6. On October 8, 2009, the Houston Office issued a Notice of Apparent
Liability for Forfeiture to ECPI 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. ECPI submitted a response to
the NAL requesting reduction or cancellation of the proposed
forfeiture.
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, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement"). In examining ECPI's 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 requires that all medium intensity
obstruction lighting be exhibited as specified. Section 17.47 of the
Rules requires owners of antenna structures to observe structure
lights visually once every 24 hours to ensure that all lights are
functioning properly as required or employ an automatic alarm system
designed to detect any failure in the lights. Antenna structure number
1048971 is required to display medium intensity obstruction lighting
during both daytime and nighttime operation. On September 2, 2009,
agents from the Houston Office observed that the medium intensity
obstruction lighting on antenna structure number 1048971 was not
functioning. ECPI's owner admitted that ECPI was not monitoring the
antenna structure lights once daily and did not have a functioning
automatic alarm system. Accordingly, ECPI was unaware of the lighting
outage prior to the inspection. ECPI also discovered that the
electricity to the antenna structure had been disconnected for an
undisclosed period of time. ECPI was aware that the lights on its
antenna structure were not being monitored for multiple days.
9. In response to the NAL, ECPI states that it corrected the lighting
outage within three hours of the agent's notification. ECPI states
that the outage was caused by an older fuse box being improperly
closed by a maintenance worker, which resulted in the power to the
light being accidentally shut off. ECPI also claims that there is no
evidence to prove that the outage was anything other than short,
because the agent only observed the outage on one occasion.
10. It is undisputed that ECPI failed to observe visually or monitor via
an automatic alarm system the lights on antenna structure number
1048971 for more than one day prior to September 2, 2009 in violation
of Section 17.47 of the Rules. It is also undisputed that ECPI was
unaware of the lighting outage prior to the agent notification on
September 2, 2009 and did not notify the FAA of the outage. Finally,
it is undisputed that no lights on antenna structure number 1048971
were displayed on September 2, 2009, until approximately 1:30 P.M.,
three hours after the agent notification of the outage. Therefore,
ECPI's failure to monitor the lights resulted in its failure to detect
the lighting outage. Thus, based on the evidence before us, we find
that we find that ECPI willfully violated Section 17.51(b) of the
Rules by failing to exhibit all medium intensity obstruction lighting
as specified on September 2, 2009. Based on ECPI's statement that the
power to the antenna structure was accidentally turned off, we agree
that we do not have sufficient evidence to find that the outage lasted
for more than a few hours. Therefore, we reduce the forfeiture for
this violation to $2,000.
11. Section 17.57 of the 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
ownership information. ECPI purchased antenna structure number 1048971
in January 2009. As of September 2, 2009, the previous owner was still
listed on the antenna structure registration as the current owner. On
September 2, 2009, ECPI's owner admitted that he had not updated the
structure's ownership information. Thus, based on the evidence before
us, we find that ECPI willfully and repeatedly violated Section 17.57
of the Rules by failing to immediately notify the Commission upon
change in ownership information in the antenna structure.
12. In response to the NAL, ECPI does not deny that it failed to update
the structure's ownership information for over nine months. ECPI
states that Mr. Langford, who was listed as the owner as of August 11,
2009, sold the antenna structure to another individual, who sold it to
ECPI. The individual who sold the tower to ECPI told ECPI's owner that
he could not register the antenna structure until the intermediary
transaction was reflected in the ASR database. ECPI states its owner
did not discover that this information was false until after he was
contacted by the agent. However, ECPI did not attempt to update the
ownership information, and, instead chose to rely on the statements of
a third party, to its detriment. Thus, we find no reason to reduce or
cancel this forfeiture.
13. ECPI also requests a reduction of the forfeiture, because it
cooperated with the Commission's agents and has a history of
compliance with the rules. Cooperation with Commission agents is
expected, and corrective action taken after an inspection or
notification does not nullify or mitigate any prior forfeitures or
violations. However, we have reviewed ECPI's record and agree that it
has not received any previous written violations. Accordingly, we
reduce the total forfeiture to $4,000 based on its history of
compliance with the rules.
14. Finally, ECPI states that the $13,000 forfeiture would reduce its
limited operating capital and hinder its ability to purchase an
automatic monitoring system. With regard to an individual's or
entity's inability to pay, the Commission has determined that, in
general, gross revenues are the best indicator of an ability to pay a
forfeiture. ECPI failed to provide any documentation of its gross
revenues, so we are unable to determine whether a reduction based on
its inability to pay the forfeiture is warranted.
15. We have examined ECPI's 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 forfeiture
associated with the tower lighting violation to $2,000 and reduce the
total forfeiture to $4,000 based on ECPI's history of compliance with
the rules.
IV. ORDERING CLAUSES
16. 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, Electronic Corporate Pages, Inc.
IS LIABLE FOR A MONETARY FORFEITURE in the amount of four thousand
dollars ($4,000) for violations of Sections 17.51 and 17.57 of the
Rules.
17. 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.
ECPI will also send electronic notification on the date said payment
is made to SCR-Response@fcc.gov.
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Electronic
Corporate Pages, Inc. at its address of record and to its counsel,
Kristopher E. Twomey, 1725 I Street, NW, Suite 300, Washington, DC
20006.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 17.51(b), 17.57.
In response to a complaint they received about the tower, the Federal
Aviation Administration ("FAA") issued a Notice to Airmen regarding
antenna structure number 1048971.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032540001
(Enf. Bur., Houston Office, October 8, 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).
47 C.F.R. S: 17.47.
ECPI did not notify the FAA of the lighting outage. See 47 C.F.R. S: 17.48
(requiring immediate notification to the FAA of any top steady or flashing
obstruction lighting outage not repairable within 30 minutes).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), 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...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
ECPI willfully and repeatedly failed to observe visually or monitor via an
alarm monitoring system the lights on its antenna structure in violation
of Section 17.47 of the Rules. The base forfeiture amount for failing to
conduct required monitoring is $2,000, so we conclude $2,000 is an
appropriate amount for ECPI's violation. See 47 C.F.R. S: 1.80.
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
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).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
gross revenues).
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4), 17.51,
17.57.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-90
2
Federal Communications Commission DA 10-90