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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Cornerstone TeleVision, Inc. Owner of Antenna Structure
No. 1053126 Brookville, Pennsylvania ) ) ) ) ) ) ) File No.:
EB-FIELDNER-12-00002081 NAL/Acct. No.: 201332400001 FRN: 0003739364
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 18, 2013 Released: March 19, 2013
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Cornerstone TeleVision, Inc. (Cornerstone), owner of antenna
structure number 1053126 (Antenna Structure) in Brookville,
Pennsylvania,^ apparently willfully and repeatedly violated Section
303(q) of the Communications Act of 1934, as amended (Act), and
Sections 17.51(a) and 17.47(a) of the Commission's rules (Rules)^ by
failing to (1) exhibit red obstruction lighting from sunset until
sunrise, and (2) monitor obstruction lighting on a daily basis. We
conclude that Cornerstone is apparently liable for a forfeiture in the
amount of fifteen thousand dollars ($15,000).
II. BACKGROUND
2. The Antenna Structure has an overall height above ground level of 85.4
meters and was required to conform to the painting and lighting
requirements of FCC Paragraphs 1, 3, 11 and 21.^ These requirements
specify that the Antenna Structure must be painted and must display
two steady burning red obstruction lights at the mid level and a red
beacon at the top level.^
3. On March 13, 2012, the Commission received a complaint that the
top-level obstruction light on the Antenna Structure was
extinguished.^ An agent from the Enforcement Bureau's Philadelphia
Office (Philadelphia Office) contacted the Federal Aviation
Administration (FAA) and found that a Notice to Airmen (NOTAM) had not
been issued for the Antenna Structure's light outage. At the agent's
request, a NOTAM was issued that same day.
4. On March 20, 2012, at 11:07 p.m., agents from the Philadelphia Office
inspected the Antenna Structure and confirmed that the red obstruction
lighting was extinguished. The inspection was conducted with the
owners of the property where the Antenna Structure is located.
According to the property owners, the top light had been out since
January 18, 2011. The property owners also stated that they had
notified Cornerstone of the light outage several times.
5. On March 21, 2012, an agent spoke with Cornerstone's Chief Engineer,
who reported that he believed the top light on the Antenna Structure
had been out for several months, but not since January 18, 2011, as
claimed by the property owners. He further stated that he had notified
the FAA the month before.^ The Chief Engineer also reported that the
Antenna Structure lights were monitored by a local resident with whom
Cornerstone had a verbal agreement to monitor the lights and perform
routine maintenance at the Antenna Structure site.
6. After speaking with the Chief Engineer on March 21, 2012, the agent
also spoke with the local resident Cornerstone claimed was responsible
for monitoring the Antenna Structure lights. The local resident
reported to the agent that he did not make daily observations of the
Antenna Structure lights and he did not keep records of any known
light outages. He further reported that he was last at the site on
March 1, 2012, but could not provide any information regarding the
status of the Antenna Structure lights on that day. He stated that his
visit prior to that date was in November 2011, at which time he did
observe an Antenna Structure light outage, which he then reported to
Cornerstone. He also told the agent that he is now retired and resides
in the State of Georgia but that his son has taken over his
responsibilities for the Antenna Structure. The agent followed up with
the son, who reported that, although Cornerstone requested that he
notify them of any light outage, he was not asked to make daily
observations.
7. On March 28, 2012, Cornerstone's Chief Engineer reported to the agent
during a telephone conversation that the lights were repaired on March
23, 2012. He also confirmed that Cornerstone had never formally
instructed the local residents (father or son) to monitor the lights
or maintain logs of observed light outages. The Chief Engineer further
reported that the son has now been instructed to monitor the lights on
a daily basis and to report any outages to Cornerstone.
8. As a follow-up to the inspection, the Philadelphia Office issued a
letter of inquiry (LOI) to Cornerstone on May 8, 2012.^ On May 29,
2012, Cornerstone filed a response to the LOI.^ Cornerstone reported
that it first became aware of the light outage on August 1, 2011, and
that, although it had ordered replacement bulbs on August 5, 2011, the
lights were not fixed until March 23, 2012.^ Cornerstone also
submitted documentation showing that it had notified the FAA on August
1, 2011.^ Cornerstone stated that it believed it had subsequently
notified the FAA at least two other times, but was unable to provide
supporting documentation for these other times. Cornerstone also
stated that it believed the local residents with whom it had a verbal
agreement were conducting daily observations of the Antenna Structure
lighting. Cornerstone further stated that it did not learn that the
local resident's son had taken over responsibility of the Antenna
Structure until late 2011.
III. DISCUSSION
9. Section 503(b) of 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 and Exhibit Required Obstruction Lighting on the
Antenna Structure
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 17.51(a) of the Rules states that "[a]ll
red obstruction lighting shall be exhibited from sunset until sunrise
unless otherwise specified."^ Section 17.47(a) of the Rules states
that owners of antenna structures "(1) shall make an observation of
the antenna structure's lights at least once each 24 hours either
visually . . . to insure that all such lights are functioning properly
as required; or alternatively (2) shall 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."^
11. The evidence in this case is sufficient to establish that Cornerstone
violated Section 303(q) of the Act and Sections 17.51(a) and 17.47(a)
of the Rules. On March 20, 2012, agents from the Philadelphia Office
observed that the required red obstruction lighting on the Antenna
Structure was extinguished after sunset and that a current NOTAM was
not in place. In its LOI Response, Cornerstone admitted that the light
outage had existed from August 1, 2011, when it claims it first became
aware of the light outage, until March 23, 2012, when the lights were
repaired after the agents' inspection on March 20, 2012. Although
Cornerstone believed a local resident was conducting daily
observations of the Antenna Structure lights, the agents'
investigation revealed that the local residents were not conducting
daily monitoring. Cornerstone is responsible for monitoring the
Antenna Structure lights and is liable for any violations resulting
from the failures or omissions of its employees.^ Therefore, based on
the evidence before us, we find that Cornerstone apparently willfully
and repeatedly violated Section 303(q) of the Act and Sections
17.51(a) and 17.47(a) of the Rules by failing to (1) exhibit all
required red obstruction lighting from sunset to sunrise on the
Antenna Structure, and (2) monitor the Antenna Structure's lights on a
daily basis.
A. Proposed Forfeiture Amount
12. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failure to comply
with prescribed antenna structure lighting and marking 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.^ Given the duration of the
extinguishment and the potential public safety hazard caused by such
an outage, we find that an upward adjustment to the base forfeiture in
the amount of $5,000 is warranted. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Cornerstone is apparently liable for a
total forfeiture in the amount of $15,000.^
IV. ORDERING CLAUSES
13. 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, Cornerstone
TeleVision, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of fifteen thousand dollars ($15,000) for
violations of Section 303(q) of the Act and Sections 17.51(a) and
17.47(a) of the Rules.^
14. 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, Cornerstone
TeleVision, Inc. SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
15. 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. Cornerstone TeleVision, Inc. shall also send
electronic notification on the date said payment is made to
[1]NER-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.
16. Any request for full payment 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.
17. 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, Northeast
Region, Philadelphia Office, One Oxford Valley Building, Suite 404,
2300 East Lincoln Highway, Langhorne, Pennsylvania 19047, and include
the NAL/Acct. No. referenced in the caption. Cornerstone TeleVision,
Inc. also shall e-mail the written response to
[2]NER-Response@fcc.gov.
18. 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.
19. 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 Cornerstone TeleVision, Inc., One
Signal Hill Drive, Wall, Pennsylvania 15148.
FEDERAL COMMUNICATIONS COMMISSION
David C. Dombrowski
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
^ We note that, although Cornerstone still owns the antenna structure in
Brookville, Pennsylvania, it notified the FCC that, on August 29, 2012, it
had reduced the height above ground of the Antenna Structure to below
60.96 meters. An antenna structure requires notification to the Federal
Aviation Administration, and registration with the FCC, when its height
above ground exceeds 60.96 meters. See 47 C.F.R. SS 17.4, 17.7; see also
47 C.F.R. S 17.21(a) (requiring antenna structures more than 60.96 meters
in height above the ground to be painted and lighted).
^ 47 U.S.C. S 303(q); 47 C.F.R. S 17.47(a) and 17.51(a).
^ See 47 C.F.R. S 17.21(a) (requiring antenna structures more than 60.96
meters in height above the ground to be painted and lighted). See also
Antenna Structure Registration database for antenna structure number
1053126.
^ Id.
^ See Complaint (March 13, 2012) (on file in EB-FIELDNER-12-00002081).
^ The agent confirmed with the FAA that a NOTAM had been issued with
regard to the Antenna Structure on January 31, 2012. That NOTAM expired on
February 15, 2012.
^ Letter from Kevin Doyle, Acting District Director, Philadelphia Office,
Northeast Region, FCC Enforcement Bureau, to Cornerstone TeleVision, Inc.
(May 8, 2012) (on file in EB-FIELDNER-12-00002081).
^ Response from Thomas A. Scott, Chief Financial Officer, Cornerstone
TeleVision, Inc., to Philadelphia Office, FCC Enforcement Bureau (May 25,
2012) (on file in EB-FIELDNER-12-00002081) (LOI Response).
^ Cornerstone reported that it had tried in August 2011 to engage a
volunteer iron worker it had previously used to complete the lighting
repairs, but the iron worker was not available. LOI Response at 2.
^ See LOI Response at 4.
^ 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., 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, 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 17.47(a).
^ See, e.g., Tidewater Communications, LLC, Order on Review, 25 FCC Rcd
1675 (2010) (finding that a violator can be held liable for violations
resulting from mistakes of its employees), citing North Country Repeaters,
Forfeiture Order, 19 FCC Rcd 22139 (Enf. Bur. 2004); PBJ Communications of
Virginia, Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088 (1988); and
Standard Communications Corp., Memorandum Opinion and Order, 1 FCC Rcd 358
(1986).
^ 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).
^ See, e.g., Ramco Broadband Services, Notice of Apparent Liability for
Forfeiture and Order, 26 FCC Rcd 255 (proposing $15,000 forfeiture for
antenna structure light outage that was not timely repaired).
^ 47 U.S.C. SS 303(q) and 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.51(a) and 17.47(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 13-452
6
Federal Communications Commission DA 13-452
References
Visible links
1. mailto:NER-Response@fcc.gov
2. mailto:NER-Response@fcc.gov