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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