Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

$15K NAL to Northeast Passage for Tower Lighting/Reporting Violations

Download Options

Released: June 10, 2014
image01-00.jpg612x792

Federal Communications Commission

DA 14-793

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Northeast Passage Corporation

)

File No.: EB-FIELDNER-13-00010092

)

NAL/Acct. No.: 201432400007

Owner of Antenna Structure 1063673

)

FRN: 0004942041

Hightstown, New Jersey

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

Adopted: June 10, 2014

Released: June 10, 2014

By the District Director, Philadelphia Office, Northeast Region, Enforcement Bureau:

I.

INTRODUCTION

1.

We propose a penalty of $15,000 against Northeast Passage Corporation (NE Passage),

the owner of an antenna structure in Hightstown, New Jersey, for several violations of the Commission’s

rules concerning antenna structure lighting. Agents from the Enforcement Bureau’s Philadelphia Office

found that NE Passage was neither properly monitoring nor maintaining the daytime lights on its antenna

structure. NE Passage also failed to notify the Commission of an increase in the antenna structure’s

height. NE Passage’s disregard for the Rules posed a potential safety hazard to air traffic and warrants an

increased penalty.

2.

In this Notice of Apparent Liability for Forfeiture and Order (NAL), we find that NE

Passage apparently willfully and repeatedly violated Section 303(q) of the Communications Act of 1934, as

amended (Act) 1 and Sections 17.23, 17.47(a), 17.48(a), 17.51(b), and 17.57 of the Commission’s rules

(Rules)2 in connection with its antenna structure (Antenna Structure) by failing to (1) exhibit medium

intensity obstruction lighting on the Antenna Structure during the daytime; (2) monitor the Antenna

Structure obstruction lighting; (3) notify the Federal Aviation Administration (FAA) of a known light

outage; and (4) immediately notify the Commission upon a change in the Antenna Structure’s height. We

conclude that NE Passage is apparently liable for a forfeiture in the amount of fifteen thousand dollars

($15,000). In addition, we direct NE Passage to submit, no later than thirty (30) calendar days from the date

of this NAL, a statement signed under penalty of perjury stating that that the Antenna Structure is now in

compliance with Part 17 of the Rules.

II.

BACKGROUND

3.

On July 19, 2013, an agent of the Enforcement Bureau’s Philadelphia Office (Philadelphia

Office) was returning from another investigation and passed the Antenna Structure in Hightstown, New

Jersey, which did not appear to be painted or lit as required. At the time, the agent was not able to

conduct an on-scene inspection, but returned with another agent on July 22, 2013. According to the

Commission’s Antenna Structure Registration (ASR) database, the Antenna Structure should stand 78.3

meters in height above ground level and should have paint for daytime visibility and red obstruction lighting

for nighttime visibility.3

1 47 U.S.C. § 303(q).

2 47 C.F.R. §§ 17.23, 17.47(a), 17.48(a), 17.51(b), 17.57.

3 See Antenna Structure Registration database for antenna structure number 1063673; see also 47 C.F.R. § 17.21

(requiring antenna structures more than 60.96 meters in height to be painted and lighted).

image02-00.jpg612x792

Federal Communications Commission

DA 14-793

4.

During the July 22 inspection, the agents observed that the Antenna Structure did not

conform to the painting and lighting requirements specified on the ASR. The Antenna Structure had the

required red obstruction lighting, but in lieu of the required paint, it had white medium intensity lighting.

The agents also observed that one of the two white medium intensity lights at the mid-level of the

Antenna Structure and all white medium intensity lights at the top-level of the Antenna Structure were

extinguished. The agents contacted the FAA and learned that no Notice to Airmen (NOTAM) had been

issued for the Antenna Structure, which would have warned pilots of the hazards posed by the lighting

outage. In addition, based on information from a contractor who was working on the Antenna Structure,

the agents determined that the Antenna Structure significantly exceeded the 78.3 meters specified on the

ASR.4

5.

The agents checked FAA records and found that NE Passage filed an application

with the FAA in 2006 specifying that the new overall height of the Antenna Structure was 382

feet above ground level. The FAA issued a Determination of No Hazard on April 26, 2006,

specifying that the 382 foot structure required a medium intensity dual lighting system in

accordance with Chapters 4, 8 and 12 of FAA Advisory Circular 70/7460-1K.5 NE Passage,

however, did not notify the Commission of the new Antenna Structure height and the associated

change in the lighting specifications.

6.

The agent spoke by telephone with the President of NE Passage (President) on July 22

and 25, 2013, and August 5, 2013. During the course of those conversations, the President informed the

agent that he was aware of the light outage at the mid-level of the Antenna Structure, but he was not

aware of the light outage at the top-level. He claimed that the contractors who were working on the

Antenna Structure were going to fix the lights, a claim that the contractors later denied. The President

also claimed that the Antenna Structure lights were being monitored by US Tower Services, which in turn

contracted with Nextel to monitor the lights. The agent spoke to representatives from US Tower Services

and Nextel, both of whom indicated that there was no contract in place with NE Passage to monitor the

Antenna Structure lights.

7.

On August 7, 2013, the Philadelphia Office issued a Notice of Violation to NE Passage

regarding the violations observed on July 19 and 22, 2013, and confirmed during subsequent

conversations with the President.6

By letter dated August 28, 2013, NE Passage submitted a response to

the Notice of Violation, stating that the lights would be repaired on or about September 6, 2013.7 NE

Passage also claimed that visual monitoring of the lights had been conducted periodically by a local

electrical contractor and by tenants on the Antenna Structure.8

Further, NE Passage reported that it

ordered an automatic monitoring system that would be installed to monitor the obstruction lights and that

the ASR database would be updated.9

4 The contractor performed a tape drop measurement which showed that a cellular antenna mounted just below the

mid-level of the Antenna Structure was 146 feet (44.5 meters) above ground level. Based on the tape-drop

measurement information, the agent concluded that the Antenna Structure exceeded 292 feet (89 meters).

5 See Aeronautical Study No. 2006-AEA-1463-OE.

6 See NE Passage, Inc., Notice of Violation,V201332400039 (rel. August 7, 2013).

7 See Letter from Walter Holm, President, Northeast Passage Corporation to David Dombrowski, District Director,

Philadelphia Office, Northeast Region, Enforcement Bureau, dated August 28, 2013.

8 Id.

9 Id.

2

image03-00.jpg612x792

Federal Communications Commission

DA 14-793

III.

DISCUSSION

8.

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.10 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.11 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,12 and the Commission has so interpreted the term in the Section

503(b) context.13 The Commission may also assess a forfeiture for violations that are merely repeated,

and not willful.14 The term “repeated” means the commission or omission of such act more than once or for

more than one day.15

A.

Failure to Monitor

and Exhibit Required Obstruction Lighting on the Antenna

Structure and Notify the FAA of the Lighting Outage

9.

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.16 Section 17.23 of the Rules

provides that “each new or altered antenna structure . . . must conform to the FAA’s painting and lighting

recommendations set forth on the structure’s FAA determination of ‘no hazard.’”17 Section 17.51(b) of

the Rules states that “[a]ll high intensity and medium intensity obstruction lighting shall be exhibited

continuously unless otherwise specified.”18 Section 17.47(a) of the Rules states that owners of antenna

structures “(1) [s]hall make an observation of the antenna structure’s lights at least once each 24 hours . . .

to insure that all such lights are functioning properly as required; or alternatively (2) [s]hall provide and

properly maintain an automatic alarm system designed to detect any failure of such lights and to provide

10 47 U.S.C. § 503(b).

11 47 U.S.C. § 312(f)(1).

12 H.R. Rep. No. 97-765, 97th 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 . . . .”).

13 See, e.g., Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para.

5 (1991), recons. denied, 7 FCC Rcd 3454 (1992).

14 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).

15 Section 312(f)(2) of the Act, 47 U.S.C. § 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,

para. 9.

16 47 U.S.C. § 303(q).

17 47 C.F.R. § 17.23.

18 47 C.F.R. § 17.51(b).

3

image04-00.jpg612x792

Federal Communications Commission

DA 14-793

indication of such failure to the owner.”19 Section 17.48(a) provides that “[t]he owner of any antenna

structure which is registered with the Commission and has been assigned lighting specifications

referenced in this part: (a) [s]hall report immediately by telephone or telegraph to the nearest Flight

Service Station or office of the Federal Aviation Administration 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.”20

10.

The evidence in this case is sufficient to establish that NE Passage violated Section 303(q)

of the Act and Sections 17.23, 17.47(a), 17.48(a), and 17.51(b) of the Rules.21 According to the FAA

Determination of No Hazard issued on April 26, 2006, the Antenna Structure is required to display a dual

lighting system, which consists of medium intensity white obstruction lighting during the daytime and red

obstruction lighting at night. On July 19, 2013, an agent from the Philadelphia Office observed during

daytime hours that the required top-level white medium intensity obstruction lighting was extinguished on

the Antenna Structure. On July 22, 2013, agents from the Philadelphia Office conducted an inspection and

confirmed that the top-level white obstruction lighting was extinguished and also found that one of the two

white medium intensity obstruction lights at the mid-level of the Antenna Structure was also extinguished.

During telephone conversations, the President of NE Passage admitted that he was aware of the mid-level

obstruction lighting outage. The agents also determined that NE Passage had not notified the FAA of the

known mid-level light outage. Although NE Passage claimed at various times during the course of the

investigation that the lights were being monitored by US Tower Services, Nextel, a local electrical

contractor, and/or tenants on the Antenna Structure, the agents determined that no one was conducting daily

monitoring. NE Passage is responsible for monitoring the Antenna Structure lights and is liable for any

violations resulting from the failures or omissions of its employees.22 Therefore, based on the evidence

before us, we find that NE Passage apparently willfully and repeatedly violated Section 303(q) of the Act

and Sections 17.23, 17.47(a), 17.48(a), and 17.51(b) of the Rules by failing to (1) exhibit all required

obstruction lighting from sunrise to sunset on the Antenna Structure, (2) monitor the Antenna Structure’s

lights on a daily basis, and (3) notify the FAA of a known tower light outage.

B.

Failure to Notify the Commission of a Change in Structure Height

11.

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.”23 On July 22, 2013, an agent inspected the Antenna Structure and

19 47 C.F.R. § 17.47(a).

20 47 C.F.R. § 17.48(a).

21 At the time of the inspection on July 22, 2013, NE Passage had not yet updated the ASR database to reflect the

new FAA “no hazard” determination authorizing NE Passage to install medium intensity white obstruction lighting

for daytime visibility in lieu of paint. Therefore, in determining whether the Antenna Structure complied with Part

17 of the Rules, we could have chosen to consider the condition of the Antenna Structure’s paint instead of the

lighting. The paint on the Antenna Structure was so severely faded that a proposed $10,000 forfeiture for failure to

repaint as often as necessary to maintain good visibility, as required by Section 17.50 of the Rules, would have been

warranted under that analysis along with a $2,000 upward adjustment for the duration of the violation.

22 See, e.g., Tidewater Communications, LLC, Order on Review, 25 FCC Rcd 1675, 1676, para. 5 (2010) (finding

that a violator can be held liable for violations resulting from mistakes of its employees) (citing North Country

Repeaters, Forfeiture Order, 19 FCC Rcd 22139 (Enf. Bur. 2004); PBJ Communications of Virginia, Inc.,

Memorandum Opinion and Order, 7 FCC Rcd 2088 (1988); Standard Communications Corp., Memorandum

Opinion and Order, 1 FCC Rcd 358 (1986); Triad Broadcasting Co., Inc., 96 FCC 2d 1235 (1984).

23 47 C.F.R. § 17.57.

4

image05-00.jpg612x792

Federal Communications Commission

DA 14-793

found that it had an overall height that far exceeded the 78.3 meter height specified on the ASR. Based

on the evidence before us, we find that NE Passage apparently willfully and repeatedly violated Section

17.57 of the Rules by failing to immediately notify the Commission of a change in antenna height for the

Antenna Structure.

C.

Proposed Forfeiture and Reporting Requirement

12.

Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the Rules,

the base forfeiture amount for failure to comply with prescribed lighting and or marking (painting) is

$10,000 and the base forfeiture amount for failing to file required forms or information is $3,000.24 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, and 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.25 We find that the failure of NE Passage to notify the

FAA of a known light outage combined with its lack of diligence with regard to the monitoring of the

Antenna Structure lights represent a deliberate disregard for Commission rules that are critical to ensuring

the safety of air navigation. Accordingly, we conclude that an upward adjustment of $2,000 is warranted.

Applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors to the instant

case, we conclude that NE Passage is apparently liable for a total forfeiture in the amount of $15,000.

13.

We also direct NE Passage to submit a written statement, pursuant to Section 1.16 of the

Rules,26 signed under penalty of perjury by a principal or officer of NE Passage, stating the steps taken to

correct the violations, including the dates on which: (1) all obstruction light outages were corrected; (2)

the obstruction lighting began being monitored on a daily basis; and (3) the FCC Form 854 was submitted

to the Commission regarding the change in the Antenna Structure’s overall height; and (4) the ASR

database was updated. NE Passage shall also certify that it will otherwise comply with the Commission’s

antenna structure requirements.27 This statement must be provided to the Philadelphia Office at the

address listed in paragraph 16 within thirty (30) calendar days of the release date of this NAL.

IV.

ORDERING CLAUSES

14.

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 of the Rules, Northeast Passage Corporation is hereby NOTIFIED of

this APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen thousand dollars

($15,000) for violations of Section 303(q) of the Act and Sections 17.23, 17.47(a), 17.48(a), 17.51(b), and

17.57 of the Rules.28

15.

IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules, within thirty

(30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture and Order,

Northeast Passage Corporation SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a

written statement seeking reduction or cancellation of the proposed forfeiture.

24 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. § 1.80.

25 47 U.S.C. § 503(b)(2)(E).

26 47 C.F.R. § 1.16.

27 See 47 U.S.C. § 303(q); 47 C.F.R. §§ 17.1–17.57.

28 47 U.S.C. §§ 303(q), 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80, 17.23, 17.47(a), 17.48(a), 17.51(b),

17.57.

5

image06-00.jpg612x792

Federal Communications Commission

DA 14-793

16.

IT IS FURTHER ORDERED that Northeast Passage Corporation SHALL SUBMIT a

written statement, as described in paragraph 13, 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, Philadelphia Office, One Oxford

Valley Building, Suite 404, 2300 East Lincoln Highway, Langhorne, Pennsylvania 19047. Northeast

Passage Corporation shall also e-mail the written statement to NER-Response@fcc.gov.

17.

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. Northeast Passage

Corporation shall also send electronic notification on the date said payment is made to NER-

Response@fcc.gov. Regardless of the form of payment, a completed FCC Form 159 (Remittance

Advice) must be submitted.29 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.

18.

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.

20554.30 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.

19.

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 1.16 and 1.80(f)(3) of the Rules.31 Mail the written statement to Federal Communications

Commission, Enforcement Bureau, Northeast Region, Philadelphia Office, One Oxford Valley Building,

Suite 404, 2300 East Lincoln Highway, Langhorne, Pennsylvania 19047, and include the NAL/Acct. No.

referenced in the caption. Northeast Passage Corporation also shall e-mail the written response to NER-

Response@fcc.gov.

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

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

30 See 47 C.F.R. § 1.1914.

31 47 C.F.R. §§ 1.16, 1.80(f)(3).

6

image07-00.jpg612x792

Federal Communications Commission

DA 14-793

20.

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.

21.

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

Northeast Passage Corporation, PO Box 390, Bayville, New Jersey 08721.

FEDERAL COMMUNICATIONS COMMISSION

David C. Dombrowski

District Director

Philadelphia Office

Northeast Region

Enforcement Bureau

7

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.