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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Timothy J. Mullen ) File No.: EB-10-LA-0268
Antenna Structure Registrant ) NAL/Acct. No.: 201232900003
Cawelo, California ) FRN: 0020481289
ASR #1016437 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 17, 2011 Released: November 18, 2011
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Timothy J. Mullen ("Mullen"), registrant of antenna structure
#1016437 in Cawelo, California, apparently willfully and repeatedly
violated section 303(q) of the Communications Act of 1934, as amended,
("Act") and sections 17.51(a), 17.48, and 17.57 of the Commission's
rules ("Rules") by failing to: (1) exhibit the antenna structure's red
obstruction lighting from sunset to sunrise; (2) immediately notify
the Federal Aviation Administration (FAA) of a known extinguishment of
any flashing obstruction light; and (3) notify the Commission of the
structure's ownership change. We conclude that Mullen is apparently
liable for a forfeiture in the amount of thirteen thousand dollars
($13,000).
II. BACKGROUND
2. The antenna structure registration ("ASR") for antenna structure
#1016437 (the "Antenna Structure") requires the structure to have
obstruction marking and lighting. Specifically, the structure is
required to be painted with aviation orange and white paint and have
red obstruction lighting consisting of at least one flashing red
beacon on top and steady-burning sidelights at the approximate
midpoint of the tower.
3. On December 15, 2010, in response to information that the lights on
the Antenna Structure had completely failed, an agent from the
Enforcement Bureau's Los Angeles Office contacted the registrant of
record for the structure and was informed that ownership of the
structure had transferred to Mullen in 2008. The agent then contacted
the FAA Flight Service Station ("FSS") and requested that the FSS
issue a Notice to Airmen ("NOTAM") for the Antenna Structure because a
NOTAM had not been requested by the Antenna Structure's owner.
4. The next day, on December 16, 2010, a Los Angeles agent inspected the
Antenna Structure after sunset and observed that none of the
lights-including the red obstruction lights-on the structure were
exhibited. On December 22, 2010, the agent telephoned Mullen who
confirmed that he owned the Antenna Structure. On April 5, 2011, in
response to a letter of inquiry issued by the Los Angeles Office,
Mullen stated that, based on his power bill, the lights on the
structure had failed in late October of 2010, and that that the lights
were non-operational from October 22, 2010, until December 28, 2010,
when they were repaired. Mullen could not confirm that he notified the
FAA of the outage. Mullen also stated that he obtained ownership of
the structure on April 18, 2008. A review of the Commission's ASR
database reveals that Mullen updated the ownership information for the
Antenna Structure on January 11, 2011.
III. discussion
5. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. 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 section
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.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
A. Antenna Structure Lighting and Notification Violations
6. 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(a) of the Rules states that all red
obstruction lighting shall be exhibited from sunset to sunrise unless
otherwise specified. Section 17.48 of the Rules requires that owners
of registered antenna structures that have been assigned lighting
specifications report immediately by telephone or telegraph to the FAA
any observed or otherwise known extinguishment of any flashing
obstruction light not corrected within 30 minutes. Section 17.57 of
the Rules states that the owner of any antenna structure with a
registration number must notify the Commission immediately upon any
change in ownership.
7. As discussed above, on December 15, and 16, 2010, the lighting on the
Antenna Structure, including the red obstruction lighting, was not
exhibited. Further investigation by the Los Angeles Office revealed
that the lighting on the structure failed on October 22, 2010, and was
not operational again until December 28, 2010. Additionally, although
Mullen became the owner of the structure on April 18, 2008, he did not
update the ownership information for the Antenna Structure until
January 11, 2011, after he was contacted by a Los Angeles agent. Based
on the evidence before us, we find that Mullen apparently willfully
and repeatedly violated section 303(q) of the Act and sections
17.51(a) and 17.57 of the Rules, by failing to maintain the required
red obstruction lighting on the Antenna Structure for over two months,
and by failing to update the ownership information for the Antenna
Structure for over two years.
B. Proposed Forfeiture
8. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for failing to comply
with the prescribed lighting and/or marking for an antenna structure
is $10,000. The base forfeiture for failure to make required
notifications, including ownership notifications, is $3,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in section 503(b)(2)(E) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, 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. Applying the Forfeiture Policy
Statement, section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Mullen is apparently liable for a
total forfeiture in the amount of $13,000.
IV. ORDERING CLAUSES
9. 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 of the Commission's rules, Timothy J. Mullen is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of thirteen thousand dollars ($13,000) for violations of
section 303(q) of the Act, and sections 17.51(a), 17.48, and 17.57 of
the Rules.
10. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Timothy J. Mullen SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
11. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Timothy J. Mullen will
send electronic notification on the date said payment is made to
WR-Response@fcc.gov.
12. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Los Angeles Office, 18000 Studebaker Rd., #660, Cerritos, CA
90703 and include the NAL/Acct. No. referenced in the caption. Timothy
J. Mullen shall also email the written response to
WR-Response@fcc.gov.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Timothy J. Mullen at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director
Los Angeles Office
Western Region
Enforcement Bureau
While the coordinates listed for antenna structure #1016437 in the antenna
structure registration (35DEG31'20" north latitude and 119DEG06'22" west
longitude) correspond to 17282 Industrial Farm Road in Bakersfield,
California, the antenna structure registration lists the location of the
antenna structure as Cawelo, California.
47 U.S.C. S: 303(q).
47 C.F.R. S:S: 17.51(a), 17.48, 17.57
See Chapters 3, 4, 5, and 9 of FAA Circular number 70/7460-1G. The "[r]ed
obstruction lights should be operated by a satisfactory control device
(e.g. photo cell, timer, etc.) adjusted so the lights will be turned on
when the northern sky illuminance reaching a vertical surface falls below
a level of approximately 35 footcandles (376.7 lux). They should also be
tuned on when flight visibility is restricted during daylight hours when
less than 35 footcandles of illuminance can be maintained." Chapter 5,
Paragraph 18(d) of FAA Circular 70/7460-1G.
Id.
The Los Angeles Office also contacted the Bakersfield Police Department
and the Bakersfield Police Department confirmed that the lights on the
Antenna Structure were not functioning after sunset on December 15, 2010.
According to the National Oceanic and Atmospheric Administration, the
local sunset on December 16, 2010, in Bakersfield, California, occurred at
4:45 p.m. See http://www.srrb.noaa.gov/highlights/sunrise/sunrise.html,
visited June 30, 2011.
See Letter of Inquiry from Nader Haghighat, District Director, Los
Angeles Office, Western Region, Enforcement Bureau, to Timothy J. Mullen,
dated March 16, 2011 ("LOI"); Letter from Timothy J. Mullen to Nader
Haghighat, District Director, Los Angeles Office, Western Region,
Enforcement Bureau, dated April 5, 2011 ("LOI Response").
LOI Response at 1.
LOI Response at 1 - 2.
LOI Response at 1.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 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 Act
(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., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See, e.g., Southern California Broadcasting Co., 6
FCC Rcd 4387; Callais Cablevision, Inc. 16 FCC Rcd 1359.
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
47 C.F.R. S: 17.48.
47 C.F.R. S: 17.57.
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) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S:1.80.
Id.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 503(b), 303(q); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 17.51(a), 17.48, 17.57.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
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Federal Communications Commission DA 11-1914
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Federal Communications Commission DA 11-1914