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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Andrews Tower Rental, Inc. ) File No.: EB-10-DL-0056
Owner of Antenna Structure ) NAL/Acct. No: 201132500001
ASR#: 1058250 ) FRN: 0006139463
Oplin, Texas )
Adopted: October 31, 2011 Released: November 1, 2011
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of three thousand seven hundred fifty dollars ($3,750) to
Andrews Tower Rental, Inc. ("Andrews Tower"), owner of antenna
structure number 1058250, in Oplin, Texas ("Tower"), for willful and
repeated violation of section 303(q) of the Communications Act of
1934, as amended ("Act"), and section 17.51(a) of the Commission's
rules ("Rules"). The noted violations involve Andrews Tower's failure
to exhibit the required lighting on its antenna structure after
2. On April 7, 2011, the Enforcement Bureau's Dallas Office ("Dallas
Office") issued a Notice of Apparent Liability and Order ("NAL") to
Andrews Tower for its failure to exhibit required antenna structure
lighting. As discussed in detail in the NAL, on July 12, 2010, an
agent from the Dallas Office observed a tower light outage, which
Andrews Tower later confirmed began July 8, 2010 and was not repaired
as of July 15, 2010. Andrews Tower also failed to notify the Federal
Aviation Administration ("FAA") of the tower light outage prior to
July 15, 2010. Andrews Tower responded to the NAL stating that it
would demolish the Tower as soon as possible and requested reduction
or cancellation of the proposed forfeiture based on its inability to
pay the forfeiture. On July 7, 2011, Andrews Tower stated that the
Tower was "in all respects lit in accordance with Commission
requirements" and that it had obtained estimates for the demolition of
3. 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
Forfeiture Policy Statement. In examining Andrews Tower's response,
section 503(b)(2)(E) 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. As discussed below, we have
considered Andrews Tower's response in light of these statutory
factors and find a reduction based solely on its documented inability
to pay is warranted.
4. Section 312(f)(1) of the Act defines willful as "the conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to section
312(f)(1) of the Act clarifies that this definition of willful applies
to both sections 312 and 503(b) of the Act and the Commission has so
interpreted the term in the section 503(b) context. The Commission may
also assess a forfeiture for violations that are merely repeated, and
not willful. "Repeated" means that the act was committed or omitted
more than once, or lasts more than one day.
5. As set forth in the NAL, an agent from the Dallas Office observed that
the Tower was not lit after sunset on July 12, 2010. Andrews Tower
admitted that the lighting outage on the Tower began July 8, 2010 and
was not repaired as of July 15, 2010, the date of a telephone
conversation between Andrews Tower and an agent from the Dallas
Office. Andrews Tower also admitted that it did not contact the FAA
about the outage prior to July 15, 2010. Moreover, Andrews Tower does
not deny any of these facts in its response to the NAL. Thus, we find
that Andrews Tower willfully and repeatedly violated section 303(q) of
the Act and section 17.51(a) of the Rules by failing to exhibit
required red obstruction lighting on the Tower after sunset.
6. In its response to the NAL, Andrews Tower asserts that the forfeiture
would pose a financial hardship and requests reduction or cancellation
of the forfeiture on those grounds. With regard to a downward
adjustment based on inability to pay, the Commission has determined
that, in general, gross revenues are the best indicator of an ability
to pay a forfeiture. We have reviewed our records and Andrews Tower's
submitted documentation and conclude that the forfeiture should be
reduced to $3,750, an amount within the range determined by the Bureau
to be affordable.
7. We remind Andrews Tower that it is responsible for observing the
lights on all of its antenna structures at least once every 24 hours
and notifying the FAA immediately of any light outages lasting more
than 30 minutes. Andrews Tower must maintain the lights on its antenna
structures, even if those structures are no longer occupied by any
radio licensees, until the structures are dismantled. Failure to
comply with these requirements may result in additional enforcement
action. Finally, we direct Andrews Tower to notify the Dallas Office
when the Tower is dismantled at Federal Communications Commission,
Enforcement Bureau, South Central Region, Dallas Office, 9330 LBJ
Freeway, Suite 1170, Dallas, Texas, 75243.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Andrews Tower
Rental, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
three thousand seven hundred fifty dollars ($3,750) for violations of
sections 303(q) of the Act and section 17.51(a) of the Rules.
9. IT IS FURTHER ORDERED that Andrews Tower Rental, Inc. SHALL SUBMIT a
statement as described in paragraph 7 to the Dallas Office within thirty
(30) calendar days of the release date of this Forfeiture Order.
10. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Rules within thirty (30) calendar 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 enforcement
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 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 with any questions regarding
payment procedures at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov.
Andrews Tower will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Andrews Tower
Rental, Inc. at 2221 Oak Knoll, Colleyville, TX 75034 and to its counsel,
Lewis H. Goldman, P.C., at 45 Dudley Court, Bethesda, MD 20814.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
Andrews Tower Rental, Inc., Notice of Apparent Liability for Forfeiture
and Order, 26 FCC Rcd 5144 (South Central Region Enf. Bur. 2011). A
comprehensive recitation of the facts and history of this case can be
found in the NAL and is incorporated herein by reference.
The Tower is 134.1 meters above ground in height and is required to be
painted and lit. See Antenna Structure Registration Database, Registration
NAL at 5144-5145.
Id. See also 47 C.F.R. S: 17.48 (requiring owners of registered antenna
structures that have been assigned lighting specifications to report
immediately to the FAA any observed or otherwise known extinguishment of
any flashing obstruction light not corrected within 30 minutes).
Letter from Lewis H. Goldman, Attorney for Andrews Tower Rental, Inc., to
James D. Wells, District Director, Dallas Office, dated June 3, 2011 ("NAL
Response"). Karen McMillan is the only person who responded to agents from
the Dallas Office on behalf of Andrews Tower Rental, which prompted the
agents to conclude that she was the owner of Andrews Tower Rental, Inc. In
the NAL Response, Andrews Tower clarified that Andrews Tower is owned by
Ms. McMillan's "elderly and physically infirm" parents, and that Ms.
McMillan was only "voluntarily seeking to assist her elderly and infirm
parents with their personal business affairs." Also, Andrews Tower
admitted that it owns the Tower. NAL Response at 1.
Letter from Lewis H. Goldman, Attorney for Andrews Tower Rental, Inc., to
Diane Law-Hsu, Regional Counsel, South Central Region, Enforcement Bureau,
dated July 7, 2011.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 312(f)(1).
H.R. Conf. Rep. No. 97-765, at 51 (1982) ("This provision [inserted in
section 312] defines the terms `willful' and `repeated' for purposes of
section 312, and for any other relevant section of the [A]ct (e.g.,
section 503) . . . . As defined[,] . . . `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recon. denied, 7 FCC Rcd 3454 (1992)
("Southern California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
See PJB Communications of Virginia, Inc., Forfeiture Order, 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., Forfeiture Order, 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, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
See 47 C.F.R. S: 17.47.
See 47 C.F.R. S: 17.48.
See 47 U.S.C. S: 303(q) (requiring the owner of a tower that ceases to be
licensed by the Commission for the transmission of radio energy to
maintain the prescribed painting and/or illumination of such tower until
it is dismantled).
47 U.S.C. S:S: 303(q), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
47 U.S.C. S: 504(a).
Federal Communications Commission DA 11-1825
Federal Communications Commission DA 11-1825