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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Miller Communications, LLC File No.: EB-10-AT-0140
)
Owner of Antenna Structure NAL/Acct. No.: 201132480001
)
ASR # 1018669 FRN: 0006147490
)
Red Hill, GA
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: April 12, 2011 Released: April 12, 2011
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Miller Communications, LLC ("Miller"), owner of antenna structure
number 1018669 located in Red Hill, Georgia ("Tower"), apparently
willfully and repeatedly violated section 303(q) of the Communications
Act of 1934, as amended ("Act") and sections 17.47(a) and 17.51(a) of
the Commission's rules ("Rules") by failing to monitor antenna
structure lighting and failing to exhibit all red obstruction lighting
from sunset to sunrise. We conclude that Miller is apparently liable
for a forfeiture in the amount of twelve thousand dollars ($12,000).
II. BACKGROUND
2. On December 9, 2010, in response to a complaint that the lights on the
Tower had been non-functional since October 2010, an agent from the
Enforcement Bureau's Atlanta Office ("Atlanta 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 December 10,
2010, the agent telephoned Miller's owner, who stated he lives in New
Jersey, had no means to monitor the Tower's lights, and was unaware of
the NOTAM process or that he was required to notify the FAA in the
event of a lighting malfunction. Later on December 10, 2010, Miller's
owner confirmed that the Tower's lights had been restored. On January
19, 2011, Miller's owner confirmed that he was previously not
monitoring the Tower's lights and stated that the Tower's lights are
now being monitored.
3. On February 25, 2011, an agent from the Atlanta Office inspected the
Tower, observed the red obstruction lights were functioning properly,
and obtained the power meter number for the Tower. On March 3, 2011,
the agent received power meter daily energy usage for the Tower from
Hart Electric Membership Corporation, which showed that the Tower's
power consumption was nearly zero from October 1, 2010 through
December 9, 2010. The Tower's energy usage increased significantly
after the lighting was restored on December 10, 2010. The energy usage
for the Tower, therefore, confirms that the Tower's lights were not
lit from October 1, 2010 through December 9, 2010.
III. DISCUSSION
4. 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.
5. 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 69.4 meters above ground in overall
height and is required to be painted and lit. According to electricity
usage information, the Tower's lights were not lit from October 1,
2010 until December 9, 2010. During this period, Miller did not
contact the FAA about the Tower light outage. Moreover, Miller's owner
admitted that he was not monitoring the Tower's lights prior to
December 10, 2010, the day the Tower's lights were restored. Thus,
based on the evidence before us, we find that Miller 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 from October 1, 2010
until December 9, 2010.
6. Section 17.47(a) of the Rules requires owners of antenna structures
that are required to be lighted to 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. This requirement ensures that an
antenna structure owner will be notified promptly of any failure in a
structure's lights. Miller's owner admitted that prior to December 10,
2010, Miller had not conducted any monitoring of the Tower's lights.
Also, Miller did not maintain an automatic light monitoring system.
Thus, based on the evidence before us, we find that Miller apparently
willfully and repeatedly violated section 17.47(a) of the Rules by
failing to make observations of the Tower's lights at least once each
24 hours.
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 and the base
forfeiture amount for failure 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, and 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 Miller is apparently liable for
a total forfeiture of $12,000, consisting of a $10,000 forfeiture for
violation of section 303(q) of the Act and section 17.51(a) of the
Rules and a $2,000 forfeiture for violation of section 17.47(a) of the
Rules.
8. We direct Miller to submit a statement signed under penalty of perjury
by an officer or director of Miller stating that it is currently
monitoring the Tower's lights as required pursuant to section 17.47 of
the Rules. This statement must be provided to the Atlanta Office at
the address listed in paragraph 13 within fifteen days of the release
date of this Notice of Apparent Liability for Forfeiture.
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, Miller Communications, LLC is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twelve thousand dollars ($12,000) for violation of section
303(q) of the Act and sections 17.47(a) and 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, Miller 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.
11. IT IS FURTHER ORDERED that, within fifteen days of the release date of
this Notice of Apparent Liability for Forfeiture, Miller
Communications, LLC SHALL SUBMIT a sworn statement as described in
paragraph 8 to the Atlanta Office listed below.
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. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, Miller will 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,
Atlanta Office, 3575 Koger Blvd; Ste 320, Duluth, GA 30096, along with
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 Miller Communications, LLC, ATTN: Jim
Miller, 14 Polkville Rd, Columbia, NJ 07832.
FEDERAL COMMUNICATIONS COMMISSION
Douglas Miller
District Director,
Atlanta Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 303(q).
47 C.F.R. S:S: 17.47(a), 17.51(a).
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 December 9, 2010, at the agent's request.
Miller was first contacted on December 9, 2010 about the Tower, but denied
owning the Tower during the telephone conversation. Miller subsequently
determined that it did in fact own the Tower.
See 47 C.F.R. S: 17.47(a) (requiring owners of antenna structures to 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; or
alternatively, to maintain an automatic alarm system designed to detect
any failure of such lights).
See email from Jim Miller, Owner, Miller Communications, LLC, to the
Atlanta Office (dated January 19, 2011).
See para. 2 supra.
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 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 Antenna Structure Registration database for antenna structure number
1018669. See also 47 C.F.R. S: 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted).
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.47(b) (allowing antenna structure owners to employ an
automatic light monitoring system in lieu of daily observations).
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, 17.47(a), 17.51(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-630
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Federal Communications Commission DA 11- 630