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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
File Number: EB-10-KC-0018
KFW Communications LLC )
NAL/Acct. No.: 201132560002
Owner of Antenna Structure # 1040289 )
FRN: 0018266676
Caldwell, Kansas )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: February 28, 2011 Released: February 28, 2011
By the District Director, Kansas City Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order
("NAL"), we find that KFW Communications LLC ("KFW"), owner of antenna
structure number 1040289 ("Tower"), located in Caldwell, Kansas ,
apparently willfully and repeatedly violated section 17.47 of the
Commission's rules ("Rules") by failing to observe the antenna
structure's lights at least once each 24 hours. We conclude that KFW
is apparently liable for a forfeiture in the amount of six thousand
dollars ($6,000). Furthermore, we direct KFW to submit a statement
certifying compliance with the Commission's tower lighting rules.
II. BACKGROUND
2. On March 20, 2010, in response to a complaint that the lights on the
Tower had been unlit for several months, an agent from the Enforcement
Bureau's Kansas City Office ("Kansas City Office") reported the light
outage to the Federal Aviation Administration ("FAA"). According to
the FAA, no Notice to Airmen ("NOTAM") had been issued on the Tower,
but one was issued following the agent's call.
3. On March 23, 2010, an agent from the Kansas City Office interviewed an
employee of KFW, who stated that there was no automatic monitoring
system on the Tower and that it had been visually inspected until the
responsible technician was laid off several months ago. On June 3,
2010, the Kansas City Office issued a letter of inquiry ("LOI") to KFW
asking for additional information regarding the monitoring of the
Tower lights. On June 18, 2010 and June 30, 2010, KFW filed responses
to the LOI. According to its responses to the LOI, a KFW employee
visually inspected the Tower until the cable system was shut down on
September 30, 2009. KFW also stated that "by October 1, 2009, we did
not have any maintenance or contact with the [Tower]." KFW also stated
that they were working to have the Tower lights repaired.
III. DISCUSSION
4. 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. The term
"willful" as used in section 503(b) of the Act has been interpreted to
mean simply that the acts or omissions are committed knowingly. The
term "repeated" means the commission or omission of such act more than
once or for more than one day.
5. 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 "(1) [s]hall 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,
(2) [s]hall 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." Antenna structure number
1040289 is 61.9 meters above ground and is required to be painted and
lit. KFW stated the lights were observed visually by a technician
until September 30, 2009, when KFW ceased maintaining their cable
system in Caldwell, Kansas. KFW made no observations of the Tower
lights from October 1, 2009 to March 23, 2010. Based on the evidence
before us, we find that KFW apparently willfully and repeatedly
violated section 17.47 of the Rules by failing to observe visually the
Tower lighting at least once each 24 hours between October 1, 2009 and
March 23, 2010.
6. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for failing to conduct
required monitoring is $2,000. 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. Because KFW previously failed to observe visually or monitor
with an automatic alarm system the lights on antenna structures in
Yorktown and Bloomington, Texas, we conclude an upward adjustment to
$4,000 would be appropriate. Because the duration of KFW's current
failure to observe visually the Tower lasted for at least six months
after it had been specifically informed of the requirement for its
towers in Texas, we conclude an additional upward adjustment to $6,000
would be appropriate. Applying the Forfeiture Policy Statement,
Section 1.80 of the Rules, and the statutory factors to the instant
case, we conclude that KFW is apparently liable for a $6,000
forfeiture.
7. We direct KFW to submit a statement signed under penalty of perjury by
an officer or director of KFW stating: (1) that it is observing
visually the Tower's lights on a daily basis or has installed an
automatic monitoring system for the Tower's lights in compliance with
section 17.47(a) of the Rules; and (2) that all of the lights on the
Tower are functioning. If the lights have not yet been repaired, we
direct KFW to provide a timetable for when the repairs will be
complete and a certification that KFW has continued to notify the FAA
of the lighting outage to ensure that a NOTAM for its tower remains
current. This statement must be provided to the Kansas City Office at
the address listed in paragraph 11 within fifteen days of the release
date of this NAL.
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, 0.311,
0.314 and 1.80 of the Rules, KFW Communications LLC is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
six thousand dollars ($6,000) for violations of section 17.47 of the
Rules.
9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture and Order, KFW Communications LLC SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. IT IS FURTHER ORDERED that KFW Communications LLC SHALL SUBMIT a
statement as described in paragraph 7 to the Kansas City Office within
fifteen days of the release date of this Notice of Apparent Liability
for Forfeiture and Order.
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. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. KFW Communications LLC shall also send electronic
notification on the date said payment is made to SCR-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. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Kansas City Office, 520 NE Colbern Road, 2nd
Floor, Lee's Summit, MO, 64081, and must include the NAL/Acct. No.
referenced in the caption. The statement should also be emailed to
SCR-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 and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to KFW Communications LLC at P.O.
Box 479, Bedford, TX 76021.
FEDERAL COMMUNICATIONS COMMISSION
Robert C McKinney
District Director
Kansas City Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 17.47.
See infra P: 7.
See 47 C.F.R. S: 17.48 (requiring notification to the FAA of any observed
or otherwise known extinguishment or improper functioning of tower
lighting).
See Letter from Robert C. McKinney, District Director, Kansas City Office,
to KFW Communications, dated June 3, 2010.
See Letter from Charles Wesley, Technical Support, KFW, to Robert C.
McKinney, District Director, Kansas City Office, dated June 18, 2010
("First LOI Response"); Letter from Charles Wesley, Technical Support,
KFW, to Robert C. McKinney, District Director, Kansas City Office, dated
June 30, 2010 ("Second LOI Response").
Second LOI Response at 1.
Second LOI Response at 1.
47 U.S.C. S: 503(b).
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, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
FCC Rcd 3454 (1992).
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."
47 C.F.R. S: 17.47(a).
See 47 C.F.R. S: 17.21 (stating that antenna structures are required to be
painted and lighted when they exceed 60.96 meters in height above ground).
Second LOI Response at 1.
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.
47 U.S.C. S: 503(b)(2)(E).
See KFW Communications LLC, Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 201032540003 (Houston Office, rel. February 4, 2010); KFW
Communications LLC, Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 201032540004 (Houston Office, rel. February 4, 2010). See also
Forfeiture Policy Statement, Memorandum Opinion and Order, 15 FCC Rcd 303,
304 (1999) ("[t]he statute says that the issuance of an NAL shall not be
used against a person unless the forfeiture has been paid or the person is
subject to a final court order to pay. It does not say that the facts
underlying prior NALs shall not be used against a person.").
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 17.47.
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11-394
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Federal Communications Commission DA 11-394