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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Cox Communications, Inc. ) File No.: EB-11-NF-0100
Owner of Antenna Structure No. ) NAL/Acct. No.: 201232640001
1047860
) FRN No.: 0001834696
Atlanta, Georgia
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 27, 2012 Released: September 27, 2012
By the Resident Agent, Norfolk Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Cox Communications, Inc. (Cox), owner of antenna structure number
1047860 (the Antenna Structure), in Portsmouth, Virginia, apparently
willfully and repeatedly violated Section 303(q) of the Communications
Act of 1934, as amended (Act) and Sections 17.47 and 17.51(b) of the
Commission's rules (Rules) by failing to: (1) maintain a functioning
automatic alarm system, and (2) exhibit required daytime medium
intensity obstruction lighting. We conclude that Cox is apparently
liable for a forfeiture in the amount of twenty thousand dollars
($20,000).
II. BACKGROUND
2. The Antenna Structure is 94.6 meters in overall height above ground
level and is required to be painted and lighted. Specifically, the
Antenna Structure is required to have dual lighting, i.e., red lights
at nighttime and medium intensity flashing white lights during the
daytime and at twilight.
3. On October 24, 2011, an agent from the Enforcement Bureau's Norfolk
Office (Norfolk Office) observed that the Antenna Structure was
unpainted and unlit during daytime hours. The agent contacted the
Federal Aviation Administration (FAA) and learned that no Notice to
Airmen (NOTAM) had been issued for the Antenna Structure. On October
28, 2011, the agent contacted Cox's local representative, who stated
to the agent that he was unaware of the outage. The Cox representative
also stated that he would investigate the situation.
4. On October 30 and 31, 2011, and again on November 1, 2011, an agent
from the Norfolk Office observed that the Antenna Structure was still
unpainted and unlit during daytime hours. On November 1, 2011, Cox
admitted that the Antenna Structure's daytime lights were extinguished
and stated that it had notified the FAA of the outage that day.
5. On February 24, 2012, the Norfolk Office issued a letter of inquiry
(LOI) to Cox regarding the lighting outage on the Antenna Structure.
Cox filed its response to the LOI on March 28, 2012. In its LOI
Response, Cox states that it first learned of the light outage on its
Antenna Structure from the FCC agent. Cox also states that the lights
were repaired as of November 9, 2011. Cox further states that it
employs an automatic light monitoring system for the Antenna
Structure, but due to a "previously unknown anomaly," the system
failed to report the outage. In particular, Cox claims that "[i]n
conducting its investigation into the Bureau's inquiries, however, Cox
discovered that following the installation and initial successful test
of the [automatic light monitoring system for the Antenna Structure]
on March 24, 2010, several quarterly lighting inspections (QLI) were
not performed pursuant to Cox's standard policies and procedures. Cox
first became aware of a potential problem when it re-examined [its
system] and observed that the four lighting outage dates referenced in
the Bureau's February 24, 2012 inquiry had no corresponding alarms or
NOTAMs in the automatic Monitoring System." Finally, Cox claims that
it "immediately corrected [the light outages], commenced QLI for the
Tower, and confirmed correct lighting and monitoring system
configuration, notification, and operation."
III. DISCUSSION
6. 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. 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. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Failure to Exhibit Required Obstruction Lighting and Failure to
Properly Maintain Automatic Alarm System
7. 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 17.47(a) of the Rules requires antenna
structure owners to observe the lights on antenna structures visually
once every 24 hours or alternatively to install 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. Section
17.47(b) of the Rules also requires owners employing automatic alarm
systems to "inspect at intervals not to exceed 3 months . . . all . .
. alarm systems associated with the antenna structure lighting to
insure that such apparatus is functioning properly." Section 17.51(b)
of the Rules requires all high intensity and medium intensity
obstruction lighting to be exhibited continuously unless otherwise
specified.
8. The Antenna Structure is 94.6 meters above ground in overall height
and is required to be lighted continuously with medium intensity
flashing white lights during the daytime and at twilight. On October
24, October 30, October 31, and November 1, 2011, an agent from the
Norfolk Office observed that the Antenna Structure was not lighted
during daylight hours. As discussed above, Cox admitted that the
medium intensity flashing white lights were extinguished during the
day and that the lights were repaired on November 9, 2011. Cox also
acknowledged that its automatic alarm system failed to monitor the
lighting on the Antenna Structure, due in part to the system's
improper installation. In addition, Cox failed to inspect its alarm
system every three months as required. Therefore, based on the
evidence before us, we find that Cox apparently willfully and
repeatedly violated Section 303(q) of the Act and Sections 17.47 and
17.51(b) of the Rules by failing to maintain a properly functioning
automatic alarm system and failing to exhibit required daytime medium
intensity obstruction lighting on the Antenna Structure.
A. Proposed Forfeiture Amount
9. 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 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. Because of Cox's ability to
pay,and to serve as an effective deterrent (not simply a cost of doing
business), a forfeiture above the base forfeiture amount is necessary
and appropriate. Applying the Forfeiture Policy Statement, Section
1.80 of the Rules, and the statutory factors to the instant case, we
conclude that Cox is apparently liable for a total forfeiture in the
amount of $20,000.
IV. ORDERING CLAUSES
10. 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, Cox Communications,
Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of twenty thousand dollars ($20,000) for violations of
Section 303(q) of the Communications Act, and Sections 17.47 and
17.51(b) of the Commission's rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Cox
Communications, Inc., SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
12. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Cox Communications, Inc. shall also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
13. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 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 by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
14. 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Norfolk Office, 1457 Mount Pleasant Rd, Suite 113,
Chesapeake, Virginia 23322 and include the NAL/Acct. No. referenced in
the caption. Cox Communications, Inc. also shall e-mail the written
response to SCR-Response@fcc.gov.
15. 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.
16. 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 First Class Mail, to Cox Communications, Inc., at 1400
Lake Hearn Ave., Atlanta, Georgia 30319, and to its counsel, Gary
Lutzker, Dow Lohnes PLLC, 1200 New Hampshire Ave, NW, Suite 800,
Washington, DC 20036-6802.
FEDERAL COMMUNICATIONS COMMISSION
Luther Bolden
Resident Agent
Norfolk Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 303(q).
47 C.F.R. S:S: 17.47, 17.51(b).
See Antenna Structure Registration database for antenna structure number
1047860. See also 47 C.F.R. S: 17.21 (requiring antenna structures more
than 60.96 meters in height above ground to be painted and lighted).
See 47 C.F.R. S: 17.48 (requiring tower owners to notify the FAA
immediately of any known outages of tower lighting lasting more than 30
minutes). The agent informed the FAA of the lighting outage and the FAA
issued a NOTAM for the Antenna Structure on October 24, 2011.
Email from David Belcher, Cox Communications, to Luther Bolden, Resident
Agent, Norfolk Office, South Central Region, Enforcement Bureau (dated
Nov. 1, 2011, 5:17 P.M. E.S.T.).
Letter from Luther Bolden, Resident Agent, Norfolk Office, South Central
Region, Enforcement Bureau, to Charles Henderson, Cox Communications, Inc.
(dated Feb. 24, 2012) (on file in EB-11-0100).
Letter from Gary S. Lutzker, Counsel for Cox Communications, Inc., to
Luther Bolden, Resident Agent, Norfolk Office, South Central Region,
Enforcement Bureau, at 2 (dated Mar. 28, 2012) (LOI Response) (on file in
EB-11-0100).
Id. at 2.
Id. at 7.
Id. at 1.
Id. at 6.
Id.
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), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 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 Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.47(b).
47 C.F.R. S: 17.51(b).
See Antenna Structure Registration database for antenna structure number
1047860.
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
In 2011, Cox Communications, Inc. reported $9.4 billion in annual
revenues. Cox Communications, Inc.'s parent company, Consolidated Cox
Enterprises, Inc. reported $14,7 billion in revenues for 2011. See
http://www.coxenterprises.com/about-cox/annual-review/revenues.aspx#.UB_LTPZlTpc
(last visited Aug. 6, 2012).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100, para. 24
(stating need to take into account a violator's ability to pay in
determining the amount of a forfeiture to guarantee that forfeitures
issued against large or highly profitable entities are not considered
merely an affordable cost of doing business). See also Tesla Exploration,
Inc., Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 9808, 9811,
para. 10 (2012) (finding that it was appropriate to consider Tesla
Exploration, Ltd.'s total annual revenues as a basis for upwardly
adjusting the base forfeiture amount). It is well-established Commission
policy to consider the revenues of a violator's parent company. See, e.g.,
SM Radio, Inc., Order on Review, 23 FCC Rcd 2429, 2433, para. 12 (2008)
(citations omitted).
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, 17.51(b).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1538
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Federal Communications Commission DA 12-1538