Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   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

                                       2

   Federal Communications Commission DA 13-1878