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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No.: EB-11-AT-0055
Telava Wireless, Inc.
) NAL/Acct. No.:
Owner of Antenna Structure No: 201232480004
1050186 )
FRN: 0015598162
Hulett, GA )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: April 4, 2012 Released: April 4, 2012
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Telava Wireless, Inc. (Telava), owner of antenna
structure number 1050186 located in Hulett, Georgia (the Antenna
Structure), 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 on the Antenna Structure from sunset to
sunrise. We conclude that Telava is apparently liable for a forfeiture
in the amount of fifteen thousand dollars ($15,000). In addition, we
direct Telava to submit, no later than thirty (30) calendar days from
the date of this NAL, a statement signed under penalty of perjury
stating that the lights on the Antenna Structure have been restored.
II. BACKGROUND
2. In response to a complaint regarding a light outage on the Antenna
Structure, on the evening of May 31, 2011, an agent from the
Enforcement Bureau's Atlanta Office (Atlanta Office) observed that
none of the lighting on the Antenna Structure was lit. The agent also
observed that there was no movement or activity on the electric meter
for the Antenna Structure, which indicated that there was no
electricity being used at the Antenna Structure. The agent notified
Telava of the outage on June 1, 2011.
3. On June 7, 2011, the Atlanta Office issued a letter of inquiry (LOI)
to Telava. In the response to the LOI, Telava acknowledged that it
owns the Antenna Structure and stated that it first became aware of
the lighting extinguishment on the Antenna Structure on June 1, 2011,
when the Commission agent contacted Telava. Telava also provided
copies of electric bills for the Antenna Structure for March 2011
through May 2011 showing that there was no electricity being consumed
at the Antenna Structure site to illuminate the lights during those
months. Furthermore, a graph of the twelve-month electricity
consumption history for the Antenna Structure on the bills showed that
there had been no power consumption at the Antenna Structure since at
least April 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. 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 on the Antenna
Structure
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 Antenna Structure is 100 meters above ground
in overall height and, thus, is required to be painted and lit. An
agent from the Atlanta Office observed the Antenna Structure lighting
outage on May 31, 2011. According to electricity usage information
contained in Telava's electric bills, the Antenna Structure's lights
were not lit since at least April 2010. Thus, based on the evidence
before us, we find that Telava 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 Antenna
Structure after sunset.
A. Proposed Forfeiture Amount and Reporting Requirement
6. 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. Although Telava claims it became
aware of the outage on June 1, 2011, Telava knew or should have known
that the Antenna Structure lights were not lit because no electricity
was consumed at the site for more than a year. Its failure to take any
action to correct the Antenna Structure lighting outage or notify the
FAA until being notified by the agents from the Atlanta Office renders
its actions egregious and deserving of an upward adjustment of $5,000.
Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that Telava
is apparently liable for a total forfeiture in the amount of $15,000.
7. We direct Telava to submit a written statement, pursuant to Section
1.16 of the Rules, in addition to any statement it might submit
pursuant to paragraph 12, signed under penalty of perjury by an
officer or director of Telava stating that it is currently monitoring
the Antenna Structure's lights on a daily basis and that the lights on
the Antenna Structure have been restored. If the lights on the Antenna
Structure have not been restored, Telava's statement shall provide a
timeframe for lighting restoration. Today, we issued an enforcement
action involving another antenna structure owned by Telava for
lighting and monitoring violations. These two proceedings raise
concerns that Telava may have a systemic compliance issue with the
Commission's antenna structure lighting and monitoring rules.
Accordingly, Telava's statement shall also include: (1) a list of all
antenna structures owned by Telava (other than the structures which
are the subject of enforcement proceedings); (2) the date of the last
observation of the structures' lights; (3) how often the structures'
lights are observed visually; (4) whether an automatic light
monitoring system is in place; and (5) the current status of the
structures' lights. Further, for each of Telava's antenna structures
where the lights are not operational, please state: (1) when the
lights went dark or malfunctioned; (2) when the FAA was notified; (3)
whether an active NOTAM is in place, along with the corresponding
NOTAM number; and (4) a timeframe for repair. This statement must be
provided to the Atlanta Office at the address listed in paragraph 10
within thirty (30) calendar 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, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, Telava Wireless, Inc.
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of Section
303(q) of the Act and Section 17.51(a) of the Commission's rules.
9. 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 and Order,
Telava Wireless, Inc. 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 Telava Wireless, Inc. SHALL SUBMIT a
statement as described supra in paragraph 7 to the Atlanta Office
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order. The statement must be
mailed to Federal Communications Commission, Enforcement Bureau, South
Central Region, Atlanta Office, 3575 Koger Blvd., Suite 320, Duluth,
GA 30096. Telava Wireless, Inc. shall also email the written statement
to SCR-Response@fcc.gov.
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. Telava will 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. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Atlanta Office, 3575 Koger Blvd., Suite 320, Duluth,
GA 30096 and include the NAL/Acct. No. referenced in the caption.
Telava also shall email the written response 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 Telava Wireless, Inc., 353
Sacramento Street, Suite 1500, San Francisco, CA 94111.
FEDERAL COMMUNICATIONS COMMISSION
Douglas G. Miller
District Director
Atlanta Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
On May 31, 2011, the agent also contacted the Federal Aviation
Administration (FAA) and learned no one had contacted the FAA about a
light outage on the Antenna Structure and that a Notice to Airmen (NOTAM)
had not been issued for the Antenna Structure. 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). A NOTAM for the Antenna Structure was issued
June 1, 2011 after Telava contacted the FAA.
Letter from Douglas G. Miller, District Director, Atlanta Office, to
Telava Wireless, Inc., dated June 7, 2011.
Letter from Boaz Yung, Executive Vice President, Telava Wireless, Inc., to
Douglas G. Miller, District Director, Atlanta Office, dated June 20, 2011.
Telava also admitted that it did not notify the FAA of the outage until
June 1, 2011.
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 [A]ct
(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 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 Callais Cablevision, Inc., 16 FCC Rcd at 1362.
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
See Antenna Structure Registration database for antenna structure number
1050186. See also 47 C.F.R. S: 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted).
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).
See infra note 19.
47 C.F.R. S: 1.16.
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. 47 C.F.R. S: 17.47(a). Although Telava stated
that the Antenna Structure's landowner was responsible for making daily
observations of the Antenna Structure lighting, Telava claims it was
unaware of the lighting outage until June 1, 2011. The landowner's
caretaker, however, stated on June 1, 2011 that she notified Telava of the
Antenna Structure outage several times prior to June 1, 2011. Accordingly,
there appears to have been a breakdown in Telava's Antenna Structure
monitoring procedures. Telava is hereby warned that failure to monitor its
antenna structures consistent with section 17.47 of the Rules may subject
it to additional enforcement action.
Telava Wireless, Inc., Notice of Apparent Liability for Forfeiture and
Order, DA 12-535 (Enf. Bur. rel. Apr. 4, 2012).
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, 17.51(a).
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 12-533
2
Federal Communications Commission DA 12-533