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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of CenterPoint Energy, Inc. Owner of Antenna Structure
Number 1281666 Katy, Texas ) ) ) ) ) ) ) File No.: EB-FIELDSCR-12-00003788
NAL/Acct. No.: 201332540001 FRN: 0001687920
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 6, 2013 Released: May 6, 2013
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that CenterPoint Energy, Inc. (CenterPoint), owner of antenna
structure number 1281666, in Katy, Texas (Antenna Structure),
apparently willfully and repeatedly violated Section 303(q) of the
Communications Act of 1934, as amended (Act), and Sections 17.48(a)
and 17.51(a) of the Commission's rules (Rules),^ by failing to
exhibit required red obstruction lighting on the Antenna Structure and
notify immediately the Federal Aviation Administration (FAA) of the
light outage. We conclude that CenterPoint is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. The Antenna Structure is 105.2 meters in height above ground and is
required to have a dual lighting system displaying red obstruction
lighting at night and medium intensity white obstruction lighting
during the day.^ On August 20 and 22, 2012, in response to a complaint
of a light outage, an agent from the Enforcement Bureau's Houston
Office (Houston Office) observed that the Antenna Structure was unlit
after sunset.^ Later in the evening of August 20, 2012, the agent from
the Houston Office contacted the FAA and learned that no Notice to
Airmen (NOTAM) had been issued for the Antenna Structure.^
3. On September 10, 2012, the Houston Office issued CenterPoint a Notice
of Violation (NOV) for failing to exhibit red obstruction lighting
from sunset to sunrise and notify the FAA of the light outage.^ On
November 8, 2012, CenterPoint submitted a response to the NOV^ stating
that it completed the repairs to the lights on the Antenna Structure
and the structure's remote alarm monitoring system on September 28,
2012.^ However, CenterPoint also stated that it did not notify the FAA
of the light outage until October 5, 2012.^
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 Red Obstruction Lighting on the Antenna
Structure and Notify the FAA of the Light Outage
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 states that "[a]ll
red obstruction lighting shall be exhibited from sunset until sunrise
unless otherwise specified."^ Section 17.48(a) of the Rules states
that owners of antenna structures "shall report immediately by
telephone or telegraph to the nearest Flight Service Station or office
of the Federal Aviation Administration any observed or otherwise known
extinguishment or improper functioning of any top steady burning light
or any flashing obstruction light, regardless of its position on the
antenna structure, not corrected within 30 minutes . . . ."^
6. The evidence in this case is sufficient to establish that CenterPoint
violated Section 303(q) of the Act and Sections 17.48(a) and 17.51(a)
of the Rules. The Antenna Structure is required to display red
obstruction lighting at night.^ On August 20 and 22, 2012, an agent
from the Houston Office inspected the Antenna Structure and observed
that the red obstruction lighting was extinguished after sunset.
CenterPoint became aware of the light outage on or before September
28, 2012, the date the lighting was repaired, but did not notify the
FAA of the outage until October 5, 2012. Based on the evidence before
us, we find that CenterPoint apparently willfully and repeatedly
violated Section 303(q) of the Act and Sections 17.48(a) and 17.51(a)
of the Rules by failing to exhibit required red obstruction lighting
after sunset and notify the FAA immediately of a known light outage.
B. Proposed Forfeiture
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 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 CenterPoint is apparently liable for a total forfeiture
in the amount of $10,000.
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, CenterPoint Energy,
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 Sections 17.48(a) and 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, CenterPoint
Energy, 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. 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. CenterPoint Energy, Inc. shall also send
electronic notification on the date said payment is made to
[1]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.
11. Any request for making full payment over time 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.
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 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Houston Office, 9597 Jones Road #362, Houston, Texas
77065 and include the NAL/Acct. No. referenced in the caption.
CenterPoint Energy, Inc. also shall e-mail the written response to
[2]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 principles (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 shall be sent by both Certified Mail, Return Receipt
Requested, and First Class Mail to CenterPoint Energy, Inc. at 1111
Louisiana Street, Suite 1673B, Houston, Texas 77002.
FEDERAL COMMUNICATIONS COMMISSION
Lee R. Browning
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
^ 47 U.S.C. S 303(q); 47 C.F.R. SS 17.48(a), 17.51(a).
^ See Antenna Structure Registration database for antenna structure number
1281666. See also 47 C.F.R. S 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted).
^ Local sunset on August 20 and 22, 2012 was approximately 8:00 P.M. local
time.
^ 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 light outage and the FAA
issued a NOTAM for the Antenna Structure on August 20, 2012.
^ CenterPoint Energy, Inc., Notice of Violation, V201232540017 (Sept. 10,
2012) (on file in EB-FIELDSCR-12-00003788).
^ On October 5, 2012, CenterPoint received a verbal extension in which to
file a response to the NOV, however, by that time the response was already
past due. We remind CenterPoint of the importance of submitting responses
to Commission communications in a timely fashion and note that any future
failure to do so could result in a separate enforcement action, including
monetary forfeitures.
^ See Letter from Theoplis A. Woodard, Manager, Telecom Planning &
Engineering Design, CenterPoint Energy, Inc., to Lee Browning, Resident
Agent, Houston Office (Nov. 8, 2012) (on file in EB-FIELDSCR-12-00003788)
(NOV Response). CenterPoint stated that it last inspected its remote alarm
monitoring system on June 15, 2012. See Email from Ghengis C. Mitchell,
Telecommunications Planning & Engineering Design, CenterPoint Energy,
Inc., to Lee Browning, Resident Agent, Houston Office (Jan. 21, 2013, 6:29
P.M. C.S.T.) (on file in EB-FIELDSCR-12-00003788). We remind CenterPoint
that it is required to inspect its remote alarm monitoring system every
three months to ensure the system's proper functioning. See 47 C.F.R. S
17.47(b).
^ See Email from Ghengis C. Mitchell, Telecommunications Planning &
Engineering Design, CenterPoint Energy, Inc., to Lee Browning, Resident
Agent, Houston Office (Nov. 15, 2012, 1:18 P.M. C.S.T.) (on file in
EB-FIELDSCR-12-00003788). CenterPoint explained that it submitted its NOV
Response in November, because its FCC license specialist was out of the
office due to injury from September 14 until October 4, 2012.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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., 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 17.51(a).
^ 47 C.F.R. S 17.48(a).
^ See supra note 2.
^ 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).
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.48(a), 17.51(a).
^ 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. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 13-1005
3
Federal Communications Commission DA 13-1005
References
Visible links
1. mailto:SCR-Response@fcc.gov
2. mailto:SCR-Response@fcc.gov