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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.:
   1050186 Hulett, GA ) ) ) ) ) ) ) ) File No.: EB-11-AT-0055 NAL/Acct. No.:
   201232480004 FRN: 0015598162




                                FORFEITURE ORDER

   Adopted: January 17, 2014 Released: January 17, 2014

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of seven thousand five hundred dollars ($7,500) to Telava
       Wireless, Inc. (Telava), owner of antenna structure number 1050186,
       located in Hulett, Georgia (the Antenna Structure), for its willful
       and repeated violation of Section 303(q) of the Communications Act of
       1934, as amended (Act)^ and Section 17.51(a) of the Commission's rules
       (Rules).^ The noted violations involved Telava's failure to exhibit
       all red obstruction lighting on the Antenna Structure from sunset to
       sunrise.

   II. BACKGROUND

    2. On April 4, 2012, the Enforcement Bureau's Atlanta Office (Atlanta
       Office) issued a Notice of Apparent Liability for Forfeiture and Order
       (NAL) ^ ^ to Telava for violations of Section 303(q) of the Act and
       Section 17.51(a) of the Rules. Telava submitted a response to the NAL
       requesting 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 had secured a maintenance vendor to repair the antenna structure
       lighting during the week of April 30, 2012.^ Telava subsequently
       stated that the lights on the Antenna Structure have been repaired.^

   III. DISCUSSION

    3. 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 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 response
       in light of these statutory factors, and find that a reduction of the
       forfeiture to $7,500 based on inability to pay is warranted.

    4. First, we affirm the NAL's finding that Telava violated Section 303(q)
       of the Act and Section 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 17.51(a) of the Rules requires all red obstruction lighting to
       be exhibited from sunset to sunrise unless otherwise specified.^ As
       discussed in the NAL, an agent from the Atlanta Office observed a
       light outage on the Antenna Structure on May 31, 2011, and later
       discovered from electricity usage information contained in Telava's
       electric bills that the outage had been ongoing since at least April
       2010^ until it was repaired on or around August 30, 2012.^  Thus,
       based on the undisputed evidence before us, we find that Telava
       willfully and repeatedly failed to exhibit required red obstruction
       lighting on the Antenna Structure in violation of Section 303(q) of
       the Act and Section 17.51(a) of the Rules.^

    5. Although Telava does not deny the violations, it nevertheless requests
       cancellation of the proposed forfeiture based on its 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 reduce it
       to $7,500. 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 of this kind may result in significantly higher
       forfeitures that may not be reduced due to Telava's financial
       circumstances.

   IV. ORDERING CLAUSES

    6. 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(f)(4) of the Commission's 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 Section 17.51(a) of the Commission's rules.^

    7. 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 SCR-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.

    8. 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.

    9. 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

   Dennis P. Carlton

   Regional Director

   South Central Region

   Enforcement Bureau

   ^ 47 U.S.C. S 303(q).

   ^ 47 C.F.R. S 17.51(a).

   ^ Telava Wireless, Inc., Notice of Apparent Liability for Forfeiture and
   Order, 27 FCC Rcd 3239 (Enf. Bur. 2012). 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 Douglas Miller, District Director, Atlanta Office, South Central
   Region, Enforcement Bureau, at 1 (May 3, 2012) (on file in EB-11-AT-0055)
   (NAL Response).

   ^ NAL Response at 2.

   ^ Letter from Boaz Yung, Executive Vice President, Telava Wireless, Inc.,
   to Douglas Miller, District Director, Atlanta Office, South Central
   Region, Enforcement Bureau, at 1 (Aug. 30, 2012) (on file in
   EB-11-AT-0055).

   ^ 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).

   ^ 47 U.S.C. S 303(q).

   ^ 47 C.F.R. S 17.51(a).

   ^ NAL, 27 FCC Rcd at 3241.

   ^ See supra note 6.

   ^ 47 U.S.C. S 303(q); 47 C.F.R. S 17.51(a).

   ^ See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
   2088, 2089 (1992) (forfeiture not deemed excessive where it represented
   approximately 2.02 percent of the violator's gross revenues); Local Long
   Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
   deemed excessive where it represented approximately 7.9 percent of the
   violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
   Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
   represented approximately 7.6 percent of the violator's gross revenues).

   ^ See 47 U.S.C. S 503(b)(2)(E) (requiring Commission to 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 such other matters as justice may require).

   ^ Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western
   Region 2011) (holding that violator's repeated acts of malicious and
   intentional interference outweigh evidence concerning his ability to pay)
   (petition for reconsideration pending); Hodson Broadcasting 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), 17.51(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 14-58

   4

   Federal Communications Commission DA 14-58