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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of GCI Communication Corp. Registrant of Antenna Structure
No. 1265246 Fairbanks, Alaska ) ) ) ) ) ) ) File No.:
EB-FIELDWR-12-00004576 NAL/Acct. No.: 201332780001 FRN: 0001568880
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 10, 2013 Released: September 11, 2013
By the Resident Agent, Anchorage Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that General Communication, Inc., d/b/a GCI Communication Corp. (GCI),
registrant of antenna structure number 1265246 (the Antenna
Structure), located near Fairbanks, Alaska, apparently willfully and
repeatedly violated Section 303(q) of the Communications Act of 1934,
as amended (Act),^ and Sections 17.47, 17.48, and 17.51(b) of the
Commission's rules (Rules),^ by failing to (1) monitor obstruction
lighting on a daily basis or maintain a functioning alarm system, (2)
exhibit required daytime medium intensity obstruction lighting, and
(3) notify the Federal Aviation Administration (FAA) of a known
lighting outage. We conclude that GCI is apparently liable for a
forfeiture in the amount of twenty thousand dollars ($20,000).
II. BACKground
2. The Antenna Structure is 55.8 meters in overall height above ground
level and is required to be 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 September 12 and September 13, 2012, an agent from the Enforcement
Bureau's Anchorage Office (Anchorage Office) observed that the Antenna
Structure was unlit during daytime hours. The agent contacted the FAA
and learned that no Notice to Airmen (NOTAM) had been issued for the
Antenna Structure.^ Later on September 13, 2012, the agent contacted
GCI personnel and advised them of the light outage and the issuance of
the NOTAM.^
4. On November 1, 2012, the Anchorage Office issued a Notice of Violation
(NOV) to GCI concerning the extinguished light and failure to notify
the FAA and initiate a NOTAM.^ In the NOV Response,^ GCI acknowledged
the violation and determined that the light outage was caused by a
failing capacitor on the control board which it replaced on October
30, 2012.^ GCI also stated that they installed and tested a remote
monitoring and alarm system for the Antenna Structure.^
III. DISCUSSION
5. 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, Failure to Monitor Antenna Structure Lighting, and Failure to
Notify the FAA
6. The evidence in this case is sufficient to establish that GCI violated
Section 303(q) of the Act and Sections 17.47, 17.48, and 17.51(b) of
the Rules. 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 17.48(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 . . . ."^ Section
17.51(b) of the Rules requires all high intensity and medium intensity
obstruction lighting to be exhibited continuously unless otherwise
specified.^
7. The Antenna Structure is 55.8 meters above ground in overall height
and is required to be lighted with medium intensity flashing white
lights during the daytime and at twilight, and with red lighting at
nighttime.^ On September 12 and September 13, 2012, an agent from the
Anchorage Office observed that the Antenna Structure was not lighted
during daylight hours, and determined that GCI had failed to notify
the FAA of the outage. As discussed above, GCI acknowledged that the
medium intensity flashing white lights were extinguished during the
day and that the lighting system was repaired on October 30, 2012. GCI
did not appear to have a functioning monitoring system in place at the
time of the agent's inspection, and subsequently installed and tested
a remote monitoring and alarm system for the Antenna Structure.
Therefore, based on the evidence before us, we find that GCI
apparently willfully and repeatedly violated Section 303(q) of the Act
and Sections 17.47, 17.48, and 17.51(b) of the Rules by failing to
monitor the lighting on the Antenna Structure or maintain a properly
functioning automatic alarm system, failing to exhibit required
daytime medium intensity obstruction lighting on the Antenna
Structure, and failing to notify the FAA of the outage.
B. Proposed Forfeiture Amount
8. 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 monitoring requirements, and notification
of extinguished lights 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.^
9. Given the totality of the circumstances, and consistent with the
Forfeiture Policy Statement, we conclude that an upward adjustment of
the base forfeiture is warranted. GCI, a Tier III carrier, is a
publicly-held corporation serving most of Alaska, with annual revenues
in the hundreds of millions of dollars.^ To ensure that forfeiture
liability is a deterrent and not simply a cost of doing business, the
Commission has determined that large companies such as GCI should
expect the assessment of higher forfeitures for violations.^ Applying
the Forfeiture Policy Statement, Section 1.80 of the Rules, and the
statutory factors to the instant case, we therefore conclude that GCI
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, GCI Communication
Corp. 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 Act and Sections 17.47, 17.48, and 17.51(b) of
the 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, GCI
Communication Corp. 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. GCI shall also send electronic notification
on the date said payment is made to WR-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 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.
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, Western
Region, Anchorage Resident Agent Office, P.O. Box 231949, Anchorage,
Alaska 99523-1949, and include the NAL/Account number referenced in
the caption. GCI Communications Corp. also shall e-mail the written
response to WR-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 GCI Communication Corp., at 2550
Denali Street, Suite 1000, Anchorage, Alaska 99503-2751.
FEDERAL COMMUNICATIONS COMMISSION
Marlene Windel
Resident Agent
Anchorage Resident Agent Office
Western Region
Enforcement Bureau
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. S 17.47, 17.48, 17.51(b).
^ See Antenna Structure Registration database for antenna structure
number 1265246. See also 47 C.F.R. S 17.23 (antenna structures requiring
notice to the FAA must comply with the FAA's painting and lighting
recommendations). The relevant FAA recommendations for the Antenna
Structure include Chapters 4, 8, and 12 of FAA Circular Number 70/7460-1K.
Chapter 8 requires a dual lighting system, red lighting for nighttime, and
flashing white lights for daytime operations. Chapter 8 also allows the
omission of other types of marking when medium intensity white lights are
operated on structures 153 meters above ground level or less during
daytime or twilight.
^ See 47 C.F.R. S 17.48 (requiring antenna structure 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 September 13, 2012.
^ The agent also monitored the structure at nighttime and observed that
the red obstruction lighting was functioning properly.
^ See GCI Communications Corp., Notice of Violation, V201332780001 (Nov.
1, 2012) (NOV).
^ See Response to Notice of Violation of GCI Communications Corp. (Nov.
27, 2012) (on file in EB-FIELDWR-12-00004576) (NOV Response).
^ See id. at 1.
^ Id.
^ 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, para. 5 (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, para. 9.
^ 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 17.48(a).
^ 47 C.F.R. S 17.51(b).
^ See Antenna Structure Registration database for antenna structure
number 1265246.
^ 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).
^ General Communication, Inc., d/b/a Alaska DigiTel, Alaska Wireless, and
GCI (GCI), a Tier III carrier, is a publicly-held corporation serving most
of Alaska. Based on its 10-K SEC filing (Mar. 8, 2013), GCI had annual
revenues of $710,181,000 in 2012. Based on the most recent quarterly
report filed Aug. 2, 2013, GCI's revenues for the six months ending July
30, 2013, were $375,877,000. See
http://yahoo.brand.edgar-online.com/default.aspx? companyid=7302.
^ See, e.g., Forfeiture Policy Statement, 12 FCC Rcd at 17099-100, paras.
23-24 (cautioning all entities and individuals that, independent from the
uniform base forfeiture amounts, the Commission will take into account the
subject 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, and noting that such large or highly profitable entities should
expect that the forfeiture amount set out in a Notice of Apparent
Liability against them may in many cases be above, or even well above, the
relevant base amount); Google Inc., Notice of Apparent Liability for
Forfeiture, 27 FCC Rcd 4012 (Enf. Bur. 2012) (upwardly adjusting the base
forfeiture due to the deliberate nature of the violation and the company's
gross revenues); America Movil, S.A.B. de C.V., Parent of Puerto Rico
Telephone Company, Inc., Notice of Apparent Liability for Forfeiture, 26
FCC Rcd 8672 (Enf. Bur. 2011) (doubling the base forfeiture due to the
company's size and gross revenues); Fox Television Stations Inc., Notice
of Apparent Liability for Forfeiture, 25 FCC Rcd 7074 (Enf. Bur. 2010)
(upwardly adjusting the base forfeiture based on the egregiousness of the
violation and the company's substantial revenues).
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.47, 17.48, 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. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 13-1878
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Federal Communications Commission DA 13-1878