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$10K Fine to CenterPoint Energy for Tower Lighting Violations

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Released: August 1, 2014
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Federal Communications Commission

DA 14-1113

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

CenterPoint Energy, Inc.

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File No.: EB-FIELDSCR-12-00003788

)

NAL/Acct. No.: 201332540001

Owner of Antenna Structure Number 1281666

)

FRN: 0001687920

Katy, Texas

)

)

FORFEITURE ORDER

Adopted: August 1, 2014

Released: August 1, 2014

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

I. INTRODUCTION

1.

We impose a penalty of $10,000 against CenterPoint Energy, Inc. (CenterPoint) for failing

to exhibit required antenna structure lighting and notify the Federal Aviation Administration (FAA) of a

light outage. CenterPoint does not dispute the violations, but requests a forfeiture reduction based on certain

staffing issues and a purported history of compliance with the Commission’s rules. We find these

arguments provide an insufficient basis to reduce the forfeiture and deny CenterPoint’s request.

2.

Specifically, we issue a monetary forfeiture to CenterPoint, owner of antenna structure

number 1281666, in Katy, Texas (Antenna Structure), for willfully and repeatedly violating Section 303(q)

of the Communications Act of 1934, as amended (Act), and Sections 17.48(a) and 17.51(a) of the

Commission’s rules (Rules).1

II.

BACKGROUND

3.

On May 6, 2013, the Enforcement Bureau’s Houston Office (Houston Office) issued a

Notice of Apparent Liability for Forfeiture (NAL)to CenterPoint proposing a $10,000 forfeiture against it

for antenna structure lighting violations.2 In its NAL Response, CenterPoint acknowledged that, due to a

malfunction in its remote alarm monitoring system, it did not become aware of the Antenna Structure light

outage until September 26, 2012.3 It also stated that because its “operations personnel who facilitate and

performed repairs to the [Antenna] Structure were not aware of the Commission’s rule requiring notice to

the FAA,” it did not notify the FAA of the outage until October 5, 2012, when its licensed consultant and

designated contact for the Antenna Structure returned to the office following medical leave.4 CenterPoint

further stated that the Antenna Structure lights and remote monitoring system were repaired on September

1 47 U.S.C. § 303(q); 47 C.F.R. §§ 17.48(a), 17.51(a).

2 CenterPoint Energy, Inc., Notice of Apparent Liability for Forfeiture, 28 FCC Rcd 6305 (Enf. Bur. 2013). A

comprehensive recitation of the facts and history of this case can be found in the NAL and is incorporated herein by

reference.

3 Letter from Brett Heather Freedson, Counsel for CenterPoint Energy, Inc., to Resident Agent, Houston Office,

South Central Region, Enforcement Bureau at 2 (May 24, 2013) (on file in EB-FIELDSCR-12-00003788) (NAL

Response).

4 Id. at 3. See also NAL, 28 FCC Rcd at 6305–06, para. 3 n. 8.

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Federal Communications Commission

DA 14-1113

28, 2012, and internal procedures were adopted to prevent recurrence of similar violations.5 CenterPoint

requested reduction or cancellation of the proposed forfeiture due to its “flawless record of compliance with

the Commission” and the extenuating circumstances which prevented the licensed consultant and designated

contact for the Antenna Structure from learning of the outage on the Antenna Structure.6

III.

DISCUSSION

4.

As CenterPoint does not deny any of the facts stated in the NAL, we affirm the NAL’s

findings and conclude that CenterPoint willfully and repeatedly violated Section 303(q) of the Act and

Sections 17.48(a) and 17.51(a) of the Rules by failing to exhibit required antenna structure lighting and

notify the FAA of a light outage.

5.

The proposed forfeiture amount in this case was assessed in accordance with Section

503(b) of the Act,7 Section 1.80 of the Rules,8 and the Forfeiture Policy Statement.9 In examining

CenterPoint’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.10 As discussed below, we have considered CenterPoint’s NAL Response in light of these

statutory factors and find that a reduction of the forfeiture is unwarranted.

6.

In its NAL Response, CenterPoint states that it repaired the Antenna Structure lights, fixed

its remote monitoring system, and adopted internal compliance procedures to avoid future violations.11

While such actions are commendable, we note that corrective action taken to come into compliance with the

Rules is expected, and such corrective action does not nullify or mitigate prior violations or associated

forfeiture liability.12 CenterPoint also states that its operations personnel were unaware of the Rule requiring

lighting outage reporting to the FAA.13 Even if CenterPoint’s technicians were unaware of the notification

requirement, however, the Commission has consistently held that lack of knowledge or erroneous belief

does not warrant a downward adjustment of the forfeiture.14

5 NAL Response at 2–4.

6 Id. at 2–3.

7 47 U.S.C. § 503(b).

8 47 C.F.R. § 1.80.

9 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).

10 47 U.S.C. § 503(b)(2)(E).

11 NAL Response at 2–4.

12 See, e.g., Mattoon Broad. Co., Forfeiture Order, 29 FCC Rcd 2925 (Enf. Bur. 2014); Catholic Radio Network of

Loveland, Inc., Forfeiture Order, 29 FCC Rcd 121 (Enf. Bur. 2014); Argos Net, Inc., Forfeiture Order, 28 FCC Rcd

1126 (Enf. Bur. 2013).

13 NAL Response at 3.

14 See REMEL, Inc., Notice of Apparent Liability for Forfeiture, 28 FCC Rcd 8778, 8782, para. 9 (2013) (declining

to downwardly adjust a forfeiture when company did not know that operation of radio transmitting equipment

required a license); Profit Enters., Inc., Forfeiture Order, 8 FCC Rcd 2846, 2846, para. 5 (1993) (denying the

mitigation claim of a manufacturer/distributor who thought that the equipment certification and marketing

requirements were inapplicable, stating that “prior knowledge or understanding of the law is unnecessary to a

determination of whether a violation existed”); S. Cal. Broad. Co., Memorandum Opinion and Order, 6 FCC Rcd

4387, 4387, para. 3 (1991) (“‘[I]nadvertence’ . . . is at best, ignorance of the law, which the Commission does not

consider a mitigating circumstance”); see also Emigrant Storage, Notice of Apparent Liability for Forfeiture, 27

(continued….)

2

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Federal Communications Commission

DA 14-1113

7.

CenterPoint requests cancellation or reduction of the forfeiture reduction due to the

extenuating circumstances involving the health issues of its designated contact.15 We find this argument

unpersuasive. Section 17.48(a) of the Rules states that owners of antenna structures “shall report

immediately . . . any observed or otherwise known extinguishment or improper functioning of any top

steady burning light or any flashing obstruction light, regardless of its position on the antenna structure,

not corrected within 30 minutes.”16 The Houston Office mailed CenterPoint written notice of the light

outage on September 10, 2012, which was received a few days later.17 However, CenterPoint contends that

it did not become aware of the lighting outage until September 26, 2012, after it discovered a malfunction

in its remote alarm system.18 We note that CenterPoint last inspected its remote alarm system on June 21,

2012, and could have discovered the malfunction earlier if it inspected its system as regularly as required

by the Rules.19 Even if CenterPoint did not become aware of the outage until September 26, 2012, it did

not report the outage until nine days later, when its designated contact returned from leave.20 The absence

of CenterPoint’s designated contact did not absolve it of its obligation to immediately report a known

lighting outage at the Antenna Structure to the FAA, and we decline to reduce the forfeiture on this basis.

8.

CenterPoint also requests cancellation or reduction forfeiture based on its history of

compliance with the Rules.21 We have reviewed our records and found that CenterPoint was issued a Notice

of Violation on December 16, 2011, for failure to post an Antenna Structure Registration number on another

of its antenna structures.22 Accordingly, we conclude reduction on the basis of history of compliance is not

warranted.23

IV.

ORDERING CLAUSES

9.

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, CenterPoint Energy, Inc. IS LIABLE FOR A

MONETARY FORFEITURE in the amount of ten thousand dollars ($10,000) for violations of Section

303(q) of the Act and Sections 17.48(a) and 17.51(a) of the Rules.24

10.

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.25

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.26

CenterPoint Energy, Inc. shall send

(Continued from previous page)

FCC Rcd 8917, 8920, para. 9 (Enf. Bur. 2012) (declining to downwardly adjust a forfeiture where the violation

resulted from oversight and a change in personnel).

15 NAL Response at 2–3.

16 47 C.F.R. § 17.48(a) (emphasis added).

17 See NAL, 28 FCC Rcd at 6305–06, para. 3; see also NAL Response at 3.

18 NAL Response at 2.

19 See 47 C.F.R. § 17.47(b) (requiring inspection of automatic alarm systems at intervals not to exceed 3 months to

insure that such apparatus is functioning properly).

20 NAL Response at 3.

21 Id. at 2.

22

See CenterPoint Energy, Inc., Notice of Violation, NOV No. V201232540008 (Enf. Bur. Dec. 16, 2011).

23 If CenterPoint believes that paying the forfeiture presents financial difficulties, we note that it could always

request an installment payment plan to lessen the immediate impact of the forfeiture. See infra para. 11.

24 47 U.S.C. §§ 303(q), 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4), 17.48(a), 17.51(a).

25 47 C.F.R. § 1.80.

26 47 U.S.C. § 504(a).

3

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Federal Communications Commission

DA 14-1113

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.27 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.

11.

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.

20554.28 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.

12.

IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be sent by both

First Class and Certified Mail, Return Receipt Requested, to CenterPoint Energy, Inc. at 1111 Louisiana

Street, Suite 1673B, Houston, Texas 77002, and to its counsel, Brett Heather Freedson, Eckert Seamans

Cherin & Mellott LLC, at 1717 Pennsylvania Avenue NW, 12th Floor, Washington, DC 20006.

FEDERAL COMMUNICATIONS COMMISSION

Dennis P. Carlton

Regional Director, South Central Region

Enforcement Bureau

27 An FCC Form 159 and detailed instructions for completing the form may be obtained at

http://www.fcc.gov/Forms/Form159/159.pdf.

28 See 47 C.F.R. § 1.1914.

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