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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Telava Wireless, Inc. ) File No: EB-09-CG-0236
Owner of Antenna Structure No.: ) NAL/Acct. No.: 201232320003
1050174
) FRN: 0015598162
Fordsville, Kentucky
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: April 4, 2012 Released: April 4, 2012
By the District Director, Chicago Office, Northeast 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 1050174 (the Antenna Structure) located in
Fordsville, Kentucky, apparently willfully and repeatedly violated
Section 303(q) of the Communications Act of 1934, as amended (Act)
and Sections 17.47 and 17.56(a) of the Commission's rules (Rules) by
failing to make observations of the antenna structure lights at least
once every 24 hours and to repair the unlit antenna structure lights
as soon as practicable. We conclude that Telava is apparently liable
for a forfeiture in the amount of seventeen thousand dollars
($17,000). In addition, we direct Telava to submit, no later than
thirty (30) calendar days, a statement signed under penalty of perjury
stating that the Antenna Structure is now in compliance with Part 17
of the Rules.
II. BACKGROUND
2. The Antenna Structure is located in Fordsville, Kentucky, is 70.1
meters in height above ground level, and is required to exhibit
marking and medium intensity obstruction lighting in accordance with
FAA Circular Number 70/7460-1K, Chapters 4, 6 and 12.
3. On November 2, 2009, the Enforcement Bureau's Chicago Office (Chicago
Office) received a complaint from the owner of the property on which
the Antenna Structure is located. The property owner reported that the
lights on the Antenna Structure had been out for several months and
his attempts to reach Telava had been unsuccessful. An agent from the
Chicago Office immediately contacted Telava by telephone and left
voicemail messages with several different individuals at Telava. When
Telava did not return the agent's calls, the agent notified the
Federal Aviation Administration (FAA) of the light outage and the FAA
issued a notice to airmen (NOTAM) that day.
4. On November 3, 2009, the agent received a phone call from a Telava
representative, who confirmed that Telava owns the Antenna Structure
and stated that Telava would repair the light outage. The Telava
representative also stated that they did not know the lights were out
until they received the agent's message and that they would ensure
that a NOTAM remained in place until the lights were fixed.
5. On December 4, 2009, the property owner again contacted the Chicago
Office and reported that the lights on the Antenna Structure remained
unlit. The agent contacted the same Telava representative, who stated
that the NOTAM had been extended and that the parts needed to fix the
lights were on back-order. The Telava representative reported during a
follow-up telephone call on January 7, 2010, that the lights would be
fixed the following week.
6. Over the course of the next year, the agent contacted the Telava
representative on a regular basis to determine whether the Antenna
Structure's lights had been repaired. Each time, the Telava
representative reported that they were still working on the repair.
During a telephone conversation on December 6, 2010, the Telava
representative reported that they were having trouble with their
maintenance team and that the snow on the ground would prevent them
from repairing the lights until the spring.
7. On January 4, 2011, the Chicago Office issued a letter of inquiry
(LOI) to Telava in order to obtain additional information regarding
the status of the Antenna Structure's lighting as well as to determine
Telava's procedures for complying with Part 17 of the Rules. In
response to the LOI, Telava confirmed that it did not know about the
Antenna Structure's light outage until notified by the FCC agent on
November 3, 2009. Telava also reported that its procedure for
complying with the Commission's antenna structure monitoring
requirements is to inspect the Antenna Structure on a quarterly basis.
Telava further reported that it planned to repair the light outage the
following month, i.e., February 2011.
8. On April 20, 2011, an agent in the Chicago Office conducted an
on-scene inspection of the Antenna Structure and found that the light
outage had not been repaired. According to the property owner, the
tower lights still have not been repaired as of the release date of
this NAL.
III. DISCUSSION
9. 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 Monitor Antenna Structure Lighting
10. 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 states that the
owner of any antenna structure that 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." Telava's Antenna
Structure is 70.1 meters in height above ground level and must be
painted and lit. In response to the LOI, Telava reported that it
inspected the Antenna Structure on a quarterly basis, a protocol which
does not comply with any of the monitoring options set out in Section
17.47(a) of the Rules. Accordingly, we conclude that Telava apparently
willfully and repeatedly violated Section 17.47(a) of the Rules by
failing to implement an adequate light monitoring procedure.
A. Failure to Repair Antenna Structure Lighting As Soon As Practicable
11. Section 17.56(a) of the Rules states that "[r]eplacing or repairing of
lights, automatic indicators or automatic indicators or automatic
control or alarm systems shall be accomplished as soon as
practicable." It is undisputed that the Antenna Structure's lights
have been unlit since at least November 3, 2009, when the Telava
representative spoke to the FCC agent and reported that Telava would
repair the light outage and update the NOTAMs with the FAA. Although
Telava has provided several explanations over the past two years for
its inability to repair the light outage, we do not believe that any
of those explanations, either taken individually or together, would
reasonably prevent Telava from repairing the light outage for more
than two years. By any reasonable interpretation of the requirement
that repairs be made "as soon as practicable," Telava has failed to
comply with that requirement. Accordingly, we find that Telava
willfully and repeatedly failed to comply with Section 17.56(a) of the
Rules by failing to repair the Antenna Structure's light outage as
soon as practicable.
A. Proposed Forfeiture and Reporting Requirement
12. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
(Forfeiture Policy Statement), and Section 1.80 of the Rules, the base
forfeiture amount for failing to comply with prescribed lighting is
$10,000 and 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, any 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. We believe that Telava's
continued failure to correct the light outage for more than two years
demonstrates a deliberate disregard for the Commission's rules and
warrants an upward adjustment of $5,000. Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that Telava is apparently liable for a
total forfeiture in the amount of $17,000.
13. We also 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 18, 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. This statement must be provided to
the Chicago Office at the address listed in paragraph 16 within thirty
(30) calendar days of the release date of this NAL.
IV. ORDERING CLAUSES
14. 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 seventeen thousand dollars ($17,000) for violations
of Section 303(q) of the Act and Sections 17.47 and 17.56(a) of the
Rules.
15. 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.
16. IT IS FURTHER ORDERED that Telava Wireless, Inc. SHALL SUBMIT a
statement as described supra in paragraph 13 to the Chicago 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,
Northeast Region, Chicago Office, 1550 North Northwest Highway, Room
306, Park Ridge, IL 60068. Telava Wireless, Inc. shall also email the
written statement to NER-Response@fcc.gov.
17. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/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 Wireless, Inc.
shall also send electronic notification on the date said payment is
made to NER-Response@fcc.gov.
18. 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, if
any, must be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, Chicago Office, 1550 North Northwest
Highway, Room 306, Park Ridge, IL 60068, and must include the
NAL/Account number referenced in the caption. The statement should
also be emailed to NER-Response@fcc.gov.
19. 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.
20. 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. at 353
Sacramento Street, Suite 1500, San Francisco, California 94111.
FEDERAL COMMUNICATIONS COMMISSION
James M. Roop
District Director
Chicago District Office
Northeast Region
Enforcement Bureau
47 U.S.C. S: 303(q).
47 C.F.R. S:S: 17.47 and 17.56(a).
See Antenna Structure Registration Database for antenna structure number
1050174. See also 47 C.F.R. S: 17.21 (generally requiring towers exceeding
200 feet (60.96 meters) in height to be painted and lit).
Letter from James M. Roop, District Director, Chicago Office, to Telava
Wireless, Inc., dated January 4, 2011.
Letter from Boaz Yung, Executive Vice President, Telava Wireless, Inc., to
James M. Roop, District Director, Chicago Office, dated January 21, 2011,
at 1.
Id.
Id. at 2. Telava also reported in its response to the LOI that it received
notification in September 2010 from the owner of the property where the
tower is located that its lease for the land had been cancelled and that
access to the property would be considered trespassing. Id. In a telephone
conversation with the District Director of the Chicago Office, the
property owner stated that Telava has never contacted him in order to gain
access to the tower and that all Telava needs to do is call him so that he
can unlock the gate.
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: 17.47(a).
Antenna structures must be painted and lighted when they exceed 60.96
meters in height above ground. See 47 C.F.R. S: 17.21.
47 C.F.R. S: 17.56(a)(emphasis added).
See SpectraSite Communications, Inc., Notice of Apparent Liability for
Forfeiture, 17 FCC Rcd 7884 (2002)(finding, inter alia, that failure to
repair antenna structure lights for three months did not meet the
requirement in 47 C.F.R. S: 17.56(a) to correct light outages "as soon as
practicable.")
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), recons. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80. See SpectraSite Communications, Inc., Notice of Apparent Liability
for Forfeiture, 17 FCC Rcd 7884 (2002)(assessing, inter alia, forfeitures
in the amount of $10,000 for failure to replace or repair lights).
47 U.S.C. S: 503(b)(2)(E).
Today, we issued another enforcement action involving another antenna
structure owned by Telava with 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. Telava Wireless, Inc., Notice of Apparent Liability for Forfeiture
and Order, DA 12-533 (Enf. Bur. rel. Apr. 4, 2012).
47 C.F.R. S: 1.16.
We note that, in the Notice of Apparent Liability for Forfeiture and Order
issued to Telava today by the Enforcement Bureau's Atlanta Office, Telava
is directed to submit: (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, Telava is
directed to 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. See
supra note 21.
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 and 17.56(a).
See 47 C.F.R. S: 1.1914.
See 47 C.F.R. S:S: 1.80(f)(3), 1.16.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-535
4
Federal Communications Commission DA 12-535