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Cox Communications, Inc.

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Released: September 27, 2012

Federal Communications Commission

DA 12-1538

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Cox Communications, Inc.
)
File No.: EB-11-NF-0100
)
NAL/Acct. No.: 201232640001
Owner of Antenna Structure No. 1047860
)
FRN No.: 0001834696
Atlanta, Georgia
)
)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: September 27, 2012 Released: September 27, 2012
By the Resident Agent, Norfolk Office, South Central Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture (NAL), we find that Cox
Communications, Inc. (Cox), owner of antenna structure number 1047860 (the Antenna Structure), in
Portsmouth, Virginia, apparently willfully and repeatedly violated Section 303(q) of the Communications
Act of 1934, as amended (Act)1 and Sections 17.47 and 17.51(b) of the Commission’s rules (Rules)2 by
failing to: (1) maintain a functioning automatic alarm system, and (2) exhibit required daytime medium
intensity obstruction lighting. We conclude that Cox is apparently liable for a forfeiture in the amount of
twenty thousand dollars ($20,000).

II.

BACKGROUND

2.
The Antenna Structure is 94.6 meters in overall height above ground level and is required
to be painted and lighted.3 Specifically, the Antenna Structure is required to have dual lighting, i.e., red
lights at nighttime and medium intensity flashing white lights during the daytime and at twilight.
3.
On October 24, 2011, an agent from the Enforcement Bureau’s Norfolk Office (Norfolk
Office) observed that the Antenna Structure was unpainted and unlit during daytime hours. The agent
contacted the Federal Aviation Administration (FAA) and learned that no Notice to Airmen (NOTAM) had
been issued for the Antenna Structure.4 On October 28, 2011, the agent contacted Cox’s local
representative, who stated to the agent that he was unaware of the outage. The Cox representative also
stated that he would investigate the situation.


1 47 U.S.C. § 303(q).
2 47 C.F.R. §§ 17.47, 17.51(b).
3 See Antenna Structure Registration database for antenna structure number 1047860. See also 47 C.F.R. § 17.21
(requiring antenna structures more than 60.96 meters in height above ground to be painted and lighted).
4 See 47 C.F.R. § 17.48 (requiring tower owners to notify the FAA immediately of any known outages of tower
lighting lasting more than 30 minutes). The agent informed the FAA of the lighting outage and the FAA issued a
NOTAM for the Antenna Structure on October 24, 2011.

Federal Communications Commission

DA 12-1538

4.
On October 30 and 31, 2011, and again on November 1, 2011, an agent from the Norfolk
Office observed that the Antenna Structure was still unpainted and unlit during daytime hours. On
November 1, 2011, Cox admitted that the Antenna Structure’s daytime lights were extinguished and stated
that it had notified the FAA of the outage that day.5
5.
On February 24, 2012, the Norfolk Office issued a letter of inquiry (LOI) to Cox regarding
the lighting outage on the Antenna Structure.6 Cox filed its response to the LOI on March 28, 2012.7 In its
LOI Response, Cox states that it first learned of the light outage on its Antenna Structure from the FCC
agent.8 Cox also states that the lights were repaired as of November 9, 2011.9 Cox further states that it
employs an automatic light monitoring system for the Antenna Structure, but due to a “previously unknown
anomaly,” the system failed to report the outage.10 In particular, Cox claims that “[i]n conducting its
investigation into the Bureau’s inquiries, however, Cox discovered that following the installation and initial
successful test of the [automatic light monitoring system for the Antenna Structure] on March 24, 2010,
several quarterly lighting inspections (QLI) were not performed pursuant to Cox’s standard policies and
procedures. Cox first became aware of a potential problem when it re-examined [its system] and observed
that the four lighting outage dates referenced in the Bureau’s February 24, 2012 inquiry had no
corresponding alarms or NOTAMs in the automatic Monitoring System.”11 Finally, Cox claims that it
“immediately corrected [the light outages], commenced QLI for the Tower, and confirmed correct lighting
and monitoring system configuration, notification, and operation.”12

III.

DISCUSSION

6.
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.13 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.14 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,15 and the Commission has so interpreted the term in the Section


5 Email from David Belcher, Cox Communications, to Luther Bolden, Resident Agent, Norfolk Office, South
Central Region, Enforcement Bureau (dated Nov. 1, 2011, 5:17 P.M. E.S.T.).
6 Letter from Luther Bolden, Resident Agent, Norfolk Office, South Central Region, Enforcement Bureau, to
Charles Henderson, Cox Communications, Inc. (dated Feb. 24, 2012) (on file in EB-11-0100).
7 Letter from Gary S. Lutzker, Counsel for Cox Communications, Inc., to Luther Bolden, Resident Agent, Norfolk
Office, South Central Region, Enforcement Bureau, at 2 (dated Mar. 28, 2012) (LOI Response) (on file in EB-11-
0100).
8 Id. at 2.
9 Id. at 7.
10 Id. at 1.
11 Id. at 6.
12 Id.
13 47 U.S.C. § 503(b).
14 47 U.S.C. § 312(f)(1).
15 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
(continued....)
2

Federal Communications Commission

DA 12-1538

503(b) context.16 The Commission may also assess a forfeiture for violations that are merely repeated,
and not willful.17 The term “repeated” means the commission or omission of such act more than once or for
more than one day.18

A.

Failure to Exhibit Required Obstruction Lighting and Failure to Properly Maintain
Automatic Alarm System

7.
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.19 Section 17.47(a) of the Rules
requires antenna structure owners to observe the lights on antenna structures visually once every 24 hours
or alternatively to install and properly maintain an automatic alarm system designed to detect any failure
of such lights and to provide indication of such failure to the owner.20 Section 17.47(b) of the Rules also
requires owners employing automatic alarm systems to “inspect at intervals not to exceed 3 months . . . all
. . . alarm systems associated with the antenna structure lighting to insure that such apparatus is
functioning properly.”21 Section 17.51(b) of the Rules requires all high intensity and medium intensity
obstruction lighting to be exhibited continuously unless otherwise specified.22
8.
The Antenna Structure is 94.6 meters above ground in overall height and is required to be
lighted continuously with medium intensity flashing white lights during the daytime and at twilight.23 On
October 24, October 30, October 31, and November 1, 2011, an agent from the Norfolk Office observed that
the Antenna Structure was not lighted during daylight hours. As discussed above, Cox admitted that the
medium intensity flashing white lights were extinguished during the day and that the lights were repaired on
November 9, 2011. Cox also acknowledged that its automatic alarm system failed to monitor the lighting
on the Antenna Structure, due in part to the system’s improper installation. In addition, Cox failed to
inspect its alarm system every three months as required. Therefore, based on the evidence before us, we
find that Cox apparently willfully and repeatedly violated Section 303(q) of the Act and Sections 17.47 and
17.51(b) of the Rules by failing to maintain a properly functioning automatic alarm system and failing to
exhibit required daytime medium intensity obstruction lighting on the Antenna Structure.


(...continued from previous page)
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 . . . .”).
16 See, e.g., Application for Review of Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
17 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).
18 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.
19 47 U.S.C. § 303(q).
20 47 C.F.R. § 17.47(a).
21 47 C.F.R. § 17.47(b).
22 47 C.F.R. § 17.51(b).
23 See Antenna Structure Registration database for antenna structure number 1047860.
3

Federal Communications Commission

DA 12-1538

B.

Proposed Forfeiture Amount

9.
Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for failing to comply with prescribed lighting and marking is $10,000.24 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 Because of Cox’s ability to pay,26and to serve as an
effective deterrent (not simply a cost of doing business), a forfeiture above the base forfeiture amount is
necessary and appropriate.27 Applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the
statutory factors to the instant case, we conclude that Cox is apparently liable for a total forfeiture in the
amount of $20,000.

IV.

ORDERING CLAUSES

10.
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 of the Commission’s rules, Cox
Communications, Inc., is hereby

NOTIFIED

of this

APPARENT LIABILITY FOR A FORFEITURE

in the amount of twenty thousand dollars ($20,000) for violations of Section 303(q) of the
Communications Act, and Sections 17.47 and 17.51(b) of the Commission’s rules.28
11.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Commission’s Rules
within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture, Cox
Communications, Inc.,

SHALL PAY

the full amount of the proposed forfeiture or

SHALL FILE

a written
statement seeking reduction or cancellation of the proposed forfeiture.
12.
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. Cox
Communications, Inc. shall also send electronic notification on the date said payment is made to SCR-
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:


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 In 2011, Cox Communications, Inc. reported $9.4 billion in annual revenues. Cox Communications, Inc.’s parent
company, Consolidated Cox Enterprises, Inc. reported $14,7 billion in revenues for 2011. See
http://www.coxenterprises.com/about-cox/annual-review/revenues.aspx#.UB_LTPZlTpc (last visited Aug. 6, 2012).
27 See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100, para. 24 (stating need to take into account a violator’s
ability to pay in determining the amount of a forfeiture to guarantee that forfeitures issued against large or highly
profitable entities are not considered merely an affordable cost of doing business). See also Tesla Exploration, Inc.,
Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 9808, 9811, para. 10 (2012) (finding that it was appropriate
to consider Tesla Exploration, Ltd.’s total annual revenues as a basis for upwardly adjusting the base forfeiture
amount). It is well-established Commission policy to consider the revenues of a violator’s parent company. See,
e.g.
, SM Radio, Inc., Order on Review, 23 FCC Rcd 2429, 2433, para. 12 (2008) (citations omitted).
28 47 U.S.C. §§ 303(q), 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80, 17.47, 17.51(b).
29 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
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Federal Communications Commission

DA 12-1538

Ÿ
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.
Ÿ
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.
Ÿ
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.
13.
Any request for full payment 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.
14.
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, South Central Region, Norfolk Office, 1457 Mount Pleasant Rd, Suite
113, Chesapeake, Virginia 23322 and include the NAL/Acct. No. referenced in the caption. Cox
Communications, Inc. also shall e-mail the written response to SCR-Response@fcc.gov.
15.
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 practices (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.


30 See 47 C.F.R. § 1.1914.
31 47 C.F.R. §§ 1.16, 1.80(f)(3).
5

Federal Communications Commission

DA 12-1538

16.

IT IS FURTHER ORDERED

that a copy of this Notice of Apparent Liability for
Forfeiture shall be sent by both Certified Mail, Return Receipt Requested, and First Class Mail, to Cox
Communications, Inc., at 1400 Lake Hearn Ave., Atlanta, Georgia 30319, and to its counsel, Gary Lutzker,
Dow Lohnes PLLC, 1200 New Hampshire Ave, NW, Suite 800, Washington, DC 20036-6802.
FEDERAL COMMUNICATIONS COMMISSION
Luther Bolden
Resident Agent
Norfolk Office
South Central Region
Enforcement Bureau
6

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