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Before the
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 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: April 7, 2011 Released: April 7, 2011
By the District Director, Dallas Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Andrews Tower Rental, Inc. ("Andrews Tower"), owner of antenna
structure number 1058250, in Oplin, Texas, apparently willfully and
repeatedly violated section 303(q) of the Communications Act of 1934,
as amended ("Act"), and section 17.51(a) of the Commission's rules
("Rules") by failing to exhibit all red obstruction lighting from
sunset to sunrise. We conclude that Andrews Tower is apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. Antenna structure number 1058250 ("Tower"), which is owned by Andrews
Tower, is 134.1 meters above ground in height and is required to be
painted and lit.
3. On July 8, 2010, in response to a complaint of a tower light outage in
Oplin, Texas, an agent from the Enforcement Bureau's Dallas Office
("Dallas Office") contacted the Federal Aviation Administration
("FAA") and learned that no one had contacted the FAA about a light
outage on the Tower, and that a Notice to Airmen ("NOTAM") had not
been issued for the Tower. On July 8, 2010, an agent left a voice
message at the contact number for Andrews Tower listed in the ASR
database about the Tower light outage. On July 12, 2010, an agent from
the Dallas Office confirmed by direct observation that the Tower's red
obstruction lighting was not lit after sunset. On July 15, 2010,
Andrews Tower's owner telephoned the agent to state that the Tower
lights had not yet been repaired and to request the FAA's telephone
number so that it could notify them of the outage.
4. On July 28, 2010, in response to a new complaint about a light outage
on the Tower, an agent from the Dallas Office emailed Andrews Tower,
but did not receive a response. On August 17, 2010 and October 14,
2010, the Dallas Office issued letters of inquiry to Andrews Tower
about ownership of the Tower, the status of the Tower's lights, and
Andrews Tower's monitoring practices. In response to the second letter
of inquiry, Andrews Tower admitted that the Tower's lights were out as
of July 8, 2010 and that it did not become aware of the light outage
on the Tower until contacted by the agent on July 8, 2010. Andrews
Tower stated that the owner of the land on which the Tower is located
failed to notify it of the outage.
III. DISCUSSION
5. Section 503(b) of the 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.
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 requires all red
obstruction lighting to be exhibited from sunset to sunrise unless
otherwise specified. The Tower is over 200 feet in height and is
required to be painted and lit. Andrews Tower admitted that the
Tower's red obstruction lighting was not lit after sunset as of July
8, 2010, and an agent from the Dallas Office confirmed the Tower light
outage on July 12, 2010. Andrews Tower did not notify the FAA of the
lighting outage prior to July 15, 2010, even though it was notified of
the outage on July 8, 2010. Thus, based on the evidence before us, we
find that Andrews Tower apparently 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.
7. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for failing to comply
with prescribed lighting and/or marking is $10,000. 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 Andrews Tower is apparently liable for
a forfeiture of $10,000 for failing to comply with lighting
requirements.
8. We direct Andrews Tower to submit a statement signed under penalty of
perjury by an officer or director of Andrews Tower stating: (1) the
current status of the Tower's lights, and (2) the method used to make
daily determinations that the obstruction lighting on the Tower is
functioning properly and any related documentation (logs, monitoring
schedule, name of the responsible employees, etc.) that verify the
method of daily tower light observation. If the Tower's lights have
not yet been repaired, please describe the steps taken to repair the
lights and a timetable for completion. This statement must be provided
to the Dallas Office at the address listed in paragraph 13 within
fifteen days of the release date of this NAL.
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 Rules, Andrews Tower Rental, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of section
303(q) of the Act and section 17.51(a) of the Rules.
10. 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, Andrews Tower Rental, Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
11. IT IS FURTHER ORDERED that Andrews Tower Rental Inc. SHALL SUBMIT a
statement as described in paragraph 8 to the Dallas Office within
fifteen days of the release date of this Notice of Apparent Liability
for Forfeiture.
12. 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. Andrews Tower Rental, Inc. shall also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
13. 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, Dallas Office, 9330 LBJ Freeway, Suite 1170,
Dallas, Texas, 75243 and must include the NAL/Acct. No. referenced in
the caption. The statement should also be emailed to
SCR-Response@fcc.gov.
14. 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Andrews Tower Rental, Inc. at 2221 Oak
Knoll, Colleyville, TX 75034.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director
Dallas Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
Andrews Tower is listed as the owner of the structure in the Antenna
Structure Registration ("ASR") database. See also Letter from Karen
McMillan, owner of Andrews Tower Rental, Inc., to Jim Wells, District
Director, Dallas Office, dated October 15, 2010. Ms. McMillan admitted
that Andrews Tower Rental Inc. appeared to still own the tower.
4 See Antenna Structure Registration Database, Registration Number
1058250.
See 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).
The FAA issued a NOTAM on July 8, 2010, at the agent's request.
On July 8, 2010, Andrews Tower's owner responded to the voice message
stating that Andrews Tower did not own the Tower. Andrews Tower
subsequently admitted ownership of the Tower. See supra note 2.
See email from Dallas Office to Karen McMillan, owner of Andrews Tower
Rental, Inc., dated July 28, 2010.
See Letter from James D. Wells, District Director, Dallas Office, to
Andrews Tower Rental, Inc. dated August 18, 2010; Letter from James D.
Wells, District Director, Dallas Office, to Andrews Tower Rental, Inc.
dated October 6, 2010. The second letter of inquiry was sent because the
Dallas Office did not receive a response to the first letter of inquiry.
Letter from Karen McMillan, owner of Andrews Tower Rental, Inc., to Jim
Wells, District Director, Dallas Office, dated October 15, 2010.
Id.
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 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
See 47 C.F.R. S: 17.21 (requiring antenna structures more than 200 feet in
height to be painted and lighted).
Andrews Tower requested the FAA contact number on July 15, 2010. See para.
3 supra.
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).
47 U.S.C. S:S: 303(q), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, and 17.51(a).
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-629
4
Federal Communications Commission DA 11-629