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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Telava Wireless, Inc. Owner of Antenna Structure No.:
1050174 Fordsville, Kentucky ) ) ) ) ) ) File Nos.: EB-09-CG-0236;
EB-FIELDNER-12-00004395 NAL/Acct. No.: 201232320003 FRN: 0015598162
FORFEITURE ORDER
Adopted: August 28, 2014 Released: August 28, 2014
By the Regional Director, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. We impose a penalty of $7,500 against Telava Wireless, Inc. (Telava)
for failing to monitor its antenna structure lighting as required and
repair unlit antenna structure lighting as soon as practicable. Telava
does not dispute the violations, but requests cancellation of the
forfeiture based on an alleged inability to pay. For the reasons
stated below, we find insufficient basis to cancel the forfeiture, but
reduce the forfeiture based on the financial documentation provided by
Telava. However, we caution Telava that future violations may result
in substantial forfeitures, regardless of its financial condition.
2. Specifically, we issue a monetary forfeiture to Telava, owner of
antenna structure number 1050174 in Fordsville, Kentucky (the Antenna
Structure), for willfully and repeatedly violating Section 303(q) of
the Communications Act of 1934, as amended (Act),^ and Sections 17.47
and 17.56(a) of the Commission's rules (Rules).^
II. BACKGROUND
3. On April 4, 2012, the Enforcement Bureau's Chicago Office issued a
Notice of Apparent Liability for Forfeiture and Order (NAL) to Telava
proposing a $17,000 forfeiture against it for apparently failing to
monitor the Antenna Structure's lighting as required and repair unlit
Antenna Structure lighting as soon as practicable.^ In its NAL
Response, Telava did not dispute the findings in the NAL, but
requested cancellation of the proposed forfeiture because "the
economic climate has left Telava in serious funding constraints
resulting to minimal allocated budgets."^ Telava also certified that
it hired a maintenance vendor to repair the antenna structure lighting
during the week of April 30, 2012.^
III. DISCUSSION
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
Forfeiture Policy Statement.^ In examining Telava's NAL Response,
Section 503(b)(2)(E) of the Act requires that the Commission take into
account the nature, circumstances, extent, and gravity of the
violation 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.^ As discussed below, we have
considered Telava's NAL Response in light of these statutory factors,
and we find that a reduction of the forfeiture is warranted.
5. As Telava does not deny any of the facts stated in the NAL, we affirm
the NAL's findings and conclude that Telava willfully and repeatedly
violated Section 303(q) of the Act and Sections 17.47 and 17.56(a) of
the Rules by failing to monitor the Antenna Structure's lighting as
required and repair unlit Antenna Structure lighting as soon as
practicable.^
6. Although Telava does not deny the violations, it requests cancellation
of the proposed forfeiture based on an inability to pay.^ With regard
to an individual or entity's inability to pay claim, the Commission
has determined that, in general, gross revenues are the best indicator
of an ability to pay a forfeiture.^ Based on a review of the financial
documentation provided by Telava, we do not find sufficient grounds to
cancel the proposed forfeiture, but we do find that a reduction of the
forfeiture amount to $7,500 is warranted.^ However, we caution Telava
that a party's inability to pay is only one factor in our forfeiture
calculation analysis, and is not dispositive.^ We have previously
rejected inability to pay claims in cases of repeated or otherwise
egregious violations.^ Therefore, future violations may result in
significantly higher forfeitures that may not be reduced due to
Telava's financial circumstances.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.204, 0.311, 0.314, and 1.80(f)(4) of the Rules,
Telava Wireless, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the
amount of seven thousand five hundred dollars ($7,500) for violations
of Section 303(q) of the Act and Sections 17.47 and 17.56(a) of the
Rules.^
8. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Telava Wireless, Inc. shall send
electronic notification of payment to NER-Response@fcc.gov on the date
said payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account Number and FRN referenced above. 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.
9. 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.
10. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Telava Wireless, Inc. at 353 Sacramento Street, Suite
1500, San Francisco, CA 94111.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director
Northeast Region
Enforcement Bureau
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. SS 17.47, 17.56(a).
^ Telava Wireless, Inc., Notice of Apparent Liability for Forfeiture and
Order, 27 FCC Rcd 3246 (Enf. Bur. 2012) (NAL). A comprehensive recitation
of the facts and history of this case can be found in the NAL and is
incorporated herein by reference.
^ Letter from Boaz Yung, Executive Vice President, Telava Wireless, Inc.,
to Chicago Office, Northeast Region, FCC Enforcement Bureau, at 1 (May 7,
2012) (on file in EB-FIELDNER-12-00004395) (NAL Response).
^ Id. at 2.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See NAL, supra note 3.
^ NAL Response at 1.
^ See, e.g., Local Long Distance, Inc., Order of Forfeiture, 15 FCC Rcd
24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues).
^ The forfeiture amount imposed falls within the percentage range that the
Commission has previously found acceptable. See supra note 12. If Telava
still believes paying this amount presents financial difficulties, it
should request an installment payment plan to lessen the immediate impact
of the forfeiture. See infra para. 9.
^ See 47 U.S.C. S 503(b)(2)(E); Mattoon Broad. Co., Forfeiture Order, 29
FCC Rcd 2925 (Enf. Bur. 2014); Juan R. Nieves, Jr., Forfeiture Order, 29
FCC Rcd 430 (Enf. Bur. 2014).
^ Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011)
(holding that violator's repeated acts of malicious and intentional
interference outweighed evidence concerning his ability to pay), aff'd,
Memorandum Opinion and Order, 28 FCC Rcd 1170 (Enf. Bur. 2013); Hodson
Broad. Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (holding
that permittee's continued operation at variance with its construction
permit constituted an intentional and continuous violation, which
outweighed permittee's evidence concerning its ability to pay the proposed
forfeitures).
^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80(f)(4), 17.47, 17.56(a).
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(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.
Federal Communications Commission DA 14-1232
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Federal Communications Commission DA 14-1232