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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ACS Wireless, Inc. Registrant of Antenna Structure No.
1204036 Eagle River, Alaska ) ) ) ) ) ) File No.: EB-FIELDWR-12-00005502
NAL/Acct. No.: 201432780002 FRN: 0001567940
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: November 4, 2013 Released: November 5, 2013
By the Resident Agent, Anchorage Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that ACS Wireless, Inc. (ACS), registrant of antenna structure
number 1204036 (the Antenna Structure), in Eagle River, 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(a) of the Commission's rules (Rules),^ by failing to:
(1) monitor obstruction lighting on a daily basis or maintain an alarm
system; (2) notify the Federal Aviation Administration (FAA) of a
known lighting outage, and (3) exhibit required red obstruction
lighting from sunset until sunrise. We conclude that ACS is apparently
liable for a forfeiture in the amount of ten thousand dollars
($10,000). We direct ACS to submit, no later than thirty (30) calendar
days from the date of this NAL, a statement, signed under penalty of
perjury, confirming compliance of Section 17.47 of the Rules
concerning the monitoring of lighting on the Antenna Structure.^
II. BACKGROUND
2. The Antenna Structure is 61.0 meters in overall height above ground
level and is required to be lighted.^ Specifically, the Antenna
Structure is required to have red lighting, i.e., a red flashing
beacon mounted at the top level and steady-burning red lights at the
intermediate level to increase conspicuity during nighttime.
3. On November 29 and November 30, 2012, an agent of the Enforcement
Bureau's Anchorage Resident Agent Office (Anchorage Office) observed
that the Antenna Structure's lights were not operating and the
structure was completely dark during nighttime hours. On November 30,
2012, the agent contacted the Federal Aviation Administration (FAA)
and learned that no Notice to Airmen (NOTAM) was currently issued for
the Antenna Structure.^ Later on in the day, the agent contacted ACS
personnel and advised them of the light outage and the issuance of the
NOTAM.
4. On December 19, 2012, the Anchorage Resident Agent Office issued a
Notice of Violation (NOV) to ACS concerning the extinguished lights.^
In the NOV Response,^ ACS acknowledged becoming aware of the outage on
November 30, 2012, apparently after being contacted by the Anchorage
agent, and "without delay" took steps to purchase and install
replacement lighting for the Antenna Structure.^ ACS stated that the
new lighting was installed on December 7, 2012.^
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 ACS violated
Section 303(q) of the Act and Sections 17.47, 17.48, and 17.51(a) 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(a)
of the Rules requires the exhibition of all red obstruction lighting
from sunset to sunrise unless otherwise specified.^
7. The Antenna Structure is 61 meters above ground in overall height and
is required to be lighted, at nighttime, with a red flashing lighting
beacon at the top of the structure and steady burning red lights at
the intermediate level.^ On November 29, and November 30, 2012, an
agent from the Anchorage Office observed that the Antenna Structure
was not lighted during nighttime hours, and determined that ACS had
failed to notify the FAA of the outage. As discussed above, ACS
acknowledged that the red lighting on the Antenna Structure was not
functioning when contacted on November 30, 2012, by the Anchorage
agent, and installed new lighting on December 7, 2012. ACS did not
appear to have a functioning monitoring system in place at the time of
the agent's inspection, and was unaware of the light outage until
contacted by the agent. Therefore, based on the evidence before us, we
find that ACS apparently willfully and repeatedly violated Section
303(q) of the Act and Sections 17.47, 17.48, and 17.51(a) 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 red obstruction lighting on the Antenna Structure,
and failing to notify the FAA of the outage.
B. Proposed Forfeiture
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, 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.^ Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that ACS is apparently liable for a total forfeiture in the amount of
$10,000.
9. We further order ACS to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of ACS stating that it is now in compliance with
the requirements of Section 17.47 of the Rules concerning the
monitoring of lighting on the Antenna Structure.^ This statement must
be provided to the Anchorage Office at the address listed in paragraph
12 within thirty (30) calendar days of the release date of this NAL.
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, ACS Wireless, 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 17.51(a), 17.48, and 17.47 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, ACS
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.
12. IT IS FURTHER ORDERED that ACS Wireless, Inc., SHALL SUBMIT a written
statement, as described in paragraph 9, above, 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, Western Region,
Anchorage Resident Agent Office, P.O. Box 231949, Anchorage, Alaska
99523-1949. ACS shall also e-mail the written statement to
WR-Response@fcc.gov.
13. 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. ACS Wireless, Inc., 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.
14. 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.
15. 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/Acct. No. referenced in the
caption. ACS Wireless, Inc., also shall e-mail the written response to
WR-Response@fcc.gov.
16. 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.
17. 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 First Class Mail to ACS Wireless, Inc., at 600
Telephone Ave, Anchorage, AK 99503.
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. SS 17.47, 17.48, 17.51(a).
^ 47 C.F.R. S 17.47.
^ See Antenna Structure Registration database for antenna structure
number 1204036. See also 47 C.F.R. S 17.23 (antenna structures requiring
notice to the Federal Aviation Administration (FAA) must comply with the
FAA's painting and lighting recommendations). The relevant FAA
recommendations for the Antenna Structure include Chapters 4 and 5 of FAA
Circular Number 70/7460-1J. Chapter 5 requires at least one red flashing
(L-864) beacon mounted at the top level and steady-on red lights at the
intermediate level. Chapter 5 also requires daytime and twilight marking
for the Antenna Structure.
^ 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 November 30, 2012.
^ See ACS Wireless, Inc. Notice of Violation, V201332780004 (Dec 19,
2012) (NOV).
^ See Response to Notice of Violation from ACS Wireless, Inc., (Feb 26,
2013) (on file in EB-FIELDWR-12-00005502) (NOV Response).
^ See NOV Response 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 (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 17.47(a).
^ 47 C.F.R. S 17.47(b).
^ 47 C.F.R. S 17.48(a).
^ 47 C.F.R. S 17.51(a).
^ See Antenna Structure Registration database for antenna structure
number 1204036.
^ 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 C.F.R. S 1.16.
^ 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(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 13-2128
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Federal Communications Commission DA 13-2128