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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
KONA KOAST LEASING LLC )
THOMAS M. JONES ) File No. EB-00-HL-
001
Owner of Antenna Structure )
Registration # 1063428 )
Kealakekua, Hawaii ) NAL/Acct. No.
X3286001
FORFEITURE ORDER
Adopted: September 7, 2000 Released: September
8, 2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) against Kona Koast Leasing LLC (``Kona Koast'') for
willful violation of Section 73.1213(b) of the Commission's Rules
(``Rules'').1 The noted violation involves an antenna tower with
defective paint.
2. On May 10, 2000, the Commission's Honolulu, Hawaii,
Resident Agent Office (``Honolulu Office''), issued the
referenced Notice of Apparent Liability (``NAL'') for a
monetary forfeiture in the amount of ten thousand
dollars ($10,000) to Kona Koast for the noted
violation.2 Kona Koast filed a response to the NAL on
June 7, 2000, and supplementary responses on June 30
and July 20, 2000.
II. BACKGROUND
3. Kona Koast owns an antenna tower (``tower'') in
Kealakekua, Hawaii, with the registration number 1063428. On
July 13, 1999, agents from the Honolulu Office conducted an
inspection of the tower and determined that it exceeds 200 feet
in height and must, therefore, be painted in accordance with
Section 17.21 of the Rules.3 During the inspection, the agents
observed that the tower's paint was severely faded, chipped and
flaking.
4. On July 15, 1999, the Honolulu Office issued an Official
Notice of Violation ("NOV") to Kona Koast for failure to maintain
the tower's paint. In its reply to the NOV, received August 9,
1999, Kona Koast stated that the tower users were seeking bids
for the repainting of the tower. On April 19, 2000, an FCC agent
again inspected the tower and observed that the tower had not
been repainted.
5. On May 10, 2000, the Honolulu Office issued the subject
NAL to Kona Koast for inadequate painting of the tower, in
apparent willful violation of Section 73.1213(b) of the Rules.
6. The Commission received Kona Koast's response to the
NAL on June 7, 2000, and supplementary responses on June 30 and
July 20, 2000. Kona Koast asserted that, after its receipt of
the NOV, it took steps to bring the tower into compliance. In
that regard, one of the licensees using the tower accepted a bid
on August 31, 1999, to have the tower repainted. However, the
company originally engaged to paint the tower was unable to
schedule the work for ``several months'' and then could not
perform the work by the anticipated date because of the departure
of a key employee. According to Kona Koast, other companies
contacted about doing the work had large backlogs of work because
of ``the huge explosion in the wireless industry.'' Kona Koast
stated that the tower user who made arrangements to paint the
tower eventually engaged a second company. By letter dated July
19, 2000, Kona Koast notified the Commission that the tower had
been painted and was in compliance with the Commission's Rules.
III. DISCUSSION
7. As the NAL explicitly states, the forfeiture amount in
this case was assessed in accordance with Section 503 of the
Act,4 Section 1.80 of the Rules,5 and The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997),
recon. denied, 15 FCC Rcd 303 (1999) (``Policy Statement'').
Section 503(b) of the Communications Act of 1934, as amended
(``Act''), requires that, in examining Kona Koast's response, 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. 47 U.S.C.
§ 503(b)(2)(D).
8. Section 73.1213(b) of the Rules requires owners of
antenna towers to paint and illuminate those towers as specified
in Part 17 of the Commission's Rules.6 In the instant case, Kona
Koast contends its violations do not warrant a forfeiture because
circumstances beyond its control prevented the repainting of the
tower. Kona Koast knew by July 30, 1999, that its tower did not
comply with the painting requirements of Part 17 of the Rules.
However, Kona Koast did not correct the tower's painting
deficiency until July 2000. Remedial action to correct a
violation, although commendable, will not nullify a forfeiture
penalty. See Station KGVL, Inc., 42 FCC 2d 258, 259 (1993).
Kona Koast has provided a number of explanations as to why the
tower painting deficiency required additional time to correct.
Notwithstanding these explanations, there can be no satisfactory
explanation for a such a long delay in correcting a violation -
particularly where the violation creates a safety hazard. We,
therefore, find that Kona Koast's violations were willful.7
9. We have examined Kona Koast's response to the NAL
pursuant to the statutory factors above, and in conjunction with
the Policy Statement as well. As a result of our review, we
conclude that Kona Koast has failed to provide a sufficient
justification for canceling or mitigating the proposed forfeiture
amount.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, Sections 0.111, 0.311 and 1.80(f)(4)
of the Rules,8 Kona Koast Communications, Inc., IS LIABLE FOR A
MONETARY FORFEITURE in the amount of $10 ,000 for the willful
violation of Section 73.1213(b) of the Rules setting forth the
painting and lighting requirements for radio towers.
11. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within thirty (30) days
of the release of this Order. If the forfeiture is not paid
within the specified period, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.9 Payment may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995
or by mailing a check or similar instrument, payable to the order
of the Federal Communications Commission, to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. X3286001.
Requests for full payment under an installment plan should be
sent to: Chief, Credit and Debt Management Center, 445 12th
Street, S.W., Washington, D.C. 20554. 10
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail, return receipt requested to Kona Koast
Leasing LLC, 488 Channelview Drive, Moneta, Virginia 24121.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 73.1213(b).
2 Notice of Apparent Liability, NAL Acct. No. 915OR0003 (Enf.
Bur., Honolulu Residednt Agent Office, Released July 8, 1999).
3 47 C.F.R. § 17.21.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 C.F.R. § 17.1 et seq.
78 The word ``willfully'' as employed in Section 503 of the Act
does not require that the violation in question be
intentional. It is necessary only that a licensee knew it was
doing the act in question. See Southern California Broadcasting
Co., 6 FCC Rcd 4387 (1991).
8 47 C.F.R. §§ 0.111, 0.311 and 1.80(f)(4).
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.