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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Emeraldbrooke II, LLC Owner of Antenna Structure Number
1045635 Novi, Michigan ) ) ) ) ) ) ) File No: EB-FIELDNER-12-00005644
NAL/Acct. No.: 201332360002 FRN: 0016916769
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: May 2, 2013 Released: May 3, 2013
By the District Director, Detroit Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Emeraldbrooke II, LLC (Emeraldbrooke), owner of antenna
structure number 1045635 (Antenna Structure), located in Novi,
Michigan, apparently willfully and repeatedly violated Section 303(q)
of the Communications Act of 1934, as amended (Act) ^ ^ and Sections
17.4(g), 17.50 and 17.57 of the Commission's rules (Rules) by failing
to (1) display the Antenna Structure Registration Number (ASRN) in a
conspicuous place so that it is readily visible near the base of the
Antenna Structure; (2) repaint the Antenna Structure as often as
necessary to maintain good visibility; and (3) immediately notify the
Commission upon a change in ownership information.^ We conclude that
Emeraldbrooke is apparently liable for a forfeiture in the amount of
twenty five thousand dollars ($25,000). In addition, we direct
Emeraldbrooke to submit, no later than thirty (30) calendar days from
the date of this NAL, a statement signed under penalty of perjury
stating that the Antenna Structure is now in compliance with Part 17
of the Rules.
II. BACKGROUND
2. On October 5, 2011, an agent from the Enforcement Bureau's Detroit
Office (Detroit Office) inspected the Antenna Structure. According to
its Antenna Structure Registration (ASR), the Antenna Structure stands
91.1 meters in height above ground level and is required to be painted
and lighted.^ The agent observed that the ASRN was not posted at the
base of the Antenna Structure and that the paint on the Antenna
Structure was so severely faded that it no longer provided good
visibility. The agent also found that, although Emeraldbrooke has
owned the Antenna Structure since 2002, the ASR database did not list
Emeraldbrooke as the owner of the Antenna Structure.
3. On November 4, 2011, the Detroit Office issued a Warning Letter to
Emeraldbrooke for failure to (1) post the ASRN near the base of the
Antenna Structure, (2) change the ownership information, and (3) clean
and repaint the Antenna Structure as often as necessary to maintain
good visibility.^ In response to the Warning Letter, Emeraldbrooke
stated that it believed it had updated the ownership information in
the ASR database.^ Emeraldbrooke also reported that it had contacted
a vendor to post the ASRN and to obtain an estimate for re-painting
the Antenna Structure.^
4. On December 30, 2011, and again on May 8, 2012, and March 14, 2013,
agents from the Detroit Office re-inspected the Antenna Structure and
found that the ASRN was not posted at the base of the Antenna
Structure and that the paint on the Antenna Structure was still
severely faded. In addition, on each of those dates, an agent checked
the ASR database and the prior owner was still listed as the owner of
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 Comply with Antenna Structure Painting Requirements
6. 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 17.50 of the Rules states that "[a]ntenna
structures requiring painting under this part shall be cleaned or
repainted as often as necessary to maintain good visibility."^ As
described above, agents observed on October 5, 2011, that the paint on
the Antenna Structure was severely faded. Notwithstanding the issuance
of the Warning Letter regarding the severely faded paint and
Emeraldbrooke's statement in the Warning Letter Response that it had
contacted a vendor to obtain a quote for repainting the Antenna
Structure, the condition of the Antenna Structure was unchanged when
agents re-inspected the Antenna Structure on December 30, 2011, and
again on May 8, 2012, and March 14, 2013. Based on the evidence before
us, we find that Emeraldbrooke apparently willfully and repeatedly
violated Section 17.50 of the Rules by failing to clean and repaint
the Antenna Structure to maintain good visibility.
A. Failure to Post the Antenna Structure Registration Number
7. Section 17.4(g) of the Rules requires that the ASRN be displayed in a
conspicuous place so that it is readily visible near the base of the
antenna structure.^ On October 5, 2011, December 30, 2011, May 8,
2012, and March 14, 2013, an agent from the Detroit Office observed
that the ASRN for the Antenna Structure was not posted in a
conspicuous place and was not visible from anywhere near the base of
the structure. Despite being warned in the Warning Letter, the ASRN
was still not posted as of March 14, 2013. Thus, based on the evidence
before us, we find that Emeraldbrooke apparently willfully and
repeatedly violated Section 17.4(g) of the Rules by failing to post
the ASRN for the Antenna Structure in a conspicuous and visible place
near the structure's base.
A. Failure to Notify the Commission of a Change in Ownership
8. Section 17.57 of the Rules states that the "owner [of a registered
antenna structure] must also immediately notify the Commission, using
FCC Form 854, upon any change in structure height or change in
ownership information."^ Emeraldbrooke confirmed ownership of the
Antenna Structure since 2002.^ As of March 14, 2013, the ASR database
still did not list Emeraldbrooke as the owner of the Antenna
Structure. Based on the evidence before us, we find that Emeraldbrooke
apparently willfully and repeatedly violated Section 17.57 of the
Rules by failing to immediately notify the Commission of a change in
ownership information for the Antenna Structure.
A. Proposed Forfeiture and Reporting Requirement
9. Pursuant to the Forfeiture Policy Statement, and Section 1.80 of the
Rules, the base forfeiture amount for failure to comply with
prescribed marking (painting) is $10,000, and the base forfeiture
amount for failure to file required forms or information is $3,000.^
Although Section 1.80 of the Rules does not establish a base
forfeiture amount for failure to post the ASR number, the Commission
has determined, however, that an appropriate base forfeiture amount
for failure to post the ASR number is $2,000 per violation.^ 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, any 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.^ We find that Emeraldbrooke's
failure for over two years to repaint the Antenna Structure and post
the ASRN, and its failure for more than ten years to update the
Antenna Structure's ownership information, despite being warned to do
so, demonstrates a deliberate disregard for the Commission's rules and
warrants an upward adjustment of $10,000. Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that Emeraldbrooke is apparently liable for
a total forfeiture in the amount of $25,000.
10. We also direct Emeraldbrooke to submit a written statement, pursuant
to Section 1.16 of the Rules,^ signed under penalty of perjury by a
principal or officer of Emeraldbrooke, stating the steps taken to
correct the violations, including the dates on which the Antenna
Structure was repainted, the ASR number was posted, and the FCC Form
854 was submitted to the Commission to update the ownership
information for the Antenna Structure. Emeraldbrooke shall also
certify that it will otherwise comply with the Commission's antenna
structure requirements.^ This statement must be provided to the
Detroit Office at the address listed in paragraph 13 within thirty
(30) calendar days of the release date of this NAL.
IV. ORDERING CLAUSES
11. 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, Emeraldbrooke II,
LLC, is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of twenty-five thousand dollars ($25,000) for violations of
Section 303(q) of the Act and Sections 17.4(g), 17.50 and 17.57 of the
Rules.^
12. 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 and Order,
Emeraldbrooke II, LLC, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
13. IT IS FURTHER ORDERED that Emeraldbrooke II, LLC SHALL SUBMIT a
statement as described supra in paragraph 10 to the Detroit Office
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,
Northeast Region, Detroit Office, 24897 Hathaway Street, Farmington
Hills, Michigan 48335. Emeraldbrooke II, LLC shall also email the
written statement to [1]NER-Response@fcc.gov.
14. 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. Emeraldbrooke II, LLC shall also send
electronic notification on the date said payment is made to
[2]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.
15. 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.
16. 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 1.80(f)(3) and 1.16 of the Rules.^ The written statement, if
any, must be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, Detroit Office, 24897 Hathaway Street,
Farmington Hills, Michigan 48335, and must include the NAL/Account
number referenced in the caption. The statement should also be emailed
to NER-Response@fcc.gov.
17. 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.
18. 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 Emeraldbrooke II, LLC at
38701 Seven Mile Road, Suite 245, Livonia, Michigan 48152.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. SS 17.4(g), 17.50 and 17.57.
^ See Antenna Structure Registration database for antenna structure number
1045635; see also 47 C.F.R. S 17.21 (requiring antenna structures more
than 60.96 meters in height to be painted and lighted).
^ Emeraldbrooke II, LLC, Warning Letter (November 4, 2011) (on file in
EB-11-DT-0256) (Warning Letter).
^ Letter from Edmond A. Swad, Member/Manager, Emeraldbrooke II, LLC, to
James A. Bridgewater, District Director, Detroit Office, Enforcement
Bureau (November 11, 2011) (on file in EB-11-DT-0256) (Warning Letter
Response).
^ Id. at 1.
^ 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 17.50.
^ 47 C.F.R. S 17.4(g).
^ 47 C.F.R. S 17.57.
^ Warning Letter Response at 1.
^ 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.
^ See American Towers Corporation, Notice of Apparent Liability for
Forfeiture, 16 FCC Rcd 1282 (2001) (finding that the appropriate
forfeiture amount for the failure to post an ASR number to be $2,000).
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 C.F.R. S 1.16.
^ See 47 U.S.C. S 303(q); 47 C.F.R. SS 17.1 - 17.57.
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80, 17.4(g), 17.50 and 17.57.
^ 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.
^ See 47 C.F.R. SS 1.80(f)(3), 1.16.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 13-984
6
Federal Communications Commission DA 13-984
References
Visible links
1. mailto:NER-Response@fcc.gov
2. mailto:NER-Response@fcc.gov