Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Tidewater Communications LLC

Download Options

Released: February 5, 2010

Federal Communications Commission

FCC 10-28

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Tidewater Communications LLC
)
File Number: EB-05-NF-054
Owner of Antenna Structure # 1024387
)
NAL/Acct. No.: 200632640004
Grosse Point Farms, MI
)
FRN #: 0009269473
)
)
)

ORDER ON REVIEW

Adopted:

February 4, 2010

Released:

February 5, 2010
By the Commission:

I.

INTRODUCTION

1.
In this Order on Review (“Order on Review”), we deny the application for review filed
by Tidewater Communications LLC (“Tidewater”),1 seeking review of the Enforcement Bureau’s
(“Bureau”) Memorandum Opinion and Order,2 which granted in part and denied in part Tidewater’s
petition for reconsideration of a Forfeiture Order3 issued October 20, 2006. We find that Tidewater has
not provided grounds upon which to overturn the Bureau’s decision.

II.

BACKGROUND

2.
Section 17.51(a) states that all red obstruction lighting shall be exhibited from sunset to
sunrise unless otherwise specified.4 The Forfeiture Order imposed a monetary forfeiture in the amount of
$10,000 for failure to exhibit obstruction lighting on antenna structure # 1024387.5 In the Memorandum
Opinion and Order
, the Enforcement Bureau reduced the forfeiture to $8,000 based on Tidewater’s good
faith efforts to comply with the Rules.6
3.
In its Application for Review, Tidewater asserts that the Bureau applied a precedent or
policy that should be overturned. Specifically, Tidewater claims that the Bureau’s interpretation of what


1 See 47 C.F.R. § 1.115.
2 Tidewater Communications LLC, Memorandum Opinion and Order, 21 FCC Rcd 14589 (2006) (“Memorandum
Opinion and Order
”).
3 Tidewater Communications LLC, Forfeiture Order, 21 FCC Rcd. 11749 (Enf. Bur. South Central Region 2006)
(“Forfeiture Order”).
4 47 C.F.R. § 17.51.
5 Forfeiture Order at 11752.
6 Memorandum Opinion and Order at 14592.

Federal Communications Commission

FCC 10-28

constitutes a willful violation does not meet the legal standard and its policy of holding licensees
responsible for violations resulting from “mistakes” or inadvertence is unlawful.7

III.

DISCUSSION

4.
We disagree with Tidewater’s interpretation of the facts and law in this case. First,
Tidewater seeks to defend its failure to light its antenna structure by relying on its employee’s use of the
company’s light monitoring system.8 Specifically, the record shows that Tidewater consciously installed a
manual light monitoring system, which required staff to call the system to obtain a light reading. It is
undisputed that Tidewater’s employee called into the tower lighting system and recorded lighting levels in
the log, which indicated outages on June 3, 4, and 5, 2005.9 Similarly, it is undisputed that Tidewater’s
employee did not contact her supervisor regarding the low recorded lighting levels, which she had been
instructed and periodically reminded to do, because she thought the tower lights were functioning
properly. According to Tidewater, the employee believed that the lights were functioning because she
heard two messages from the manual light monitoring system: “Tower lights on” and “No alerts pending.”
Tidewater concludes that its failure to light its antenna structure was a result of a mistaken employee’s
actions and was not willful.
5.
Tidewater is incorrect that the action at issue does not fall within the definition of “willful.”
To be willful, the violator must consciously commit or omit certain actions and need not be aware that such
actions violate the Rules. 10 In this case, Tidewater’s employee called into the manual tower lighting system
and recorded the light level in the log. She then listened to the system’s recorded announcement. At that
point, she consciously and deliberately made a determination that the lights were functioning, despite the
low light level, and chose not to contact her supervisor. That she came to a faulty conclusion and acted
accordingly does not mean that she acted unintentionally or unaware; she consciously and deliberately failed
to act on the low lighting levels. Her failure to act led to the continued outage of the antenna structure in
violation of Section 17.51(a) of the Rules. Accordingly, we do not believe, as Tidewater asserts, that the
Bureau’s conclusion that Tidewater’s violation was willful “would not be tolerated by a court.”11 Moreover,
even if this were a “mistake,” it could still be found willful; we find no error in the Bureau’s citation of
Commission cases in support of its proposition that a violator can be held liable for violations resulting from
mistakes.12


7 Tidewater’s Application for Review at 8-9, citing Liability of Mid-West Radio-Television, Inc., FCC 63-1024 (1963).
Midwest Radio-Television was cited in Hubbard Broadcasting, Inc., a copy of which was attached to Primetime 24
Joint Venture v. Telcable Nacional
, 1990 U.S. Dist. Lexis 20034 (1990).
8 Although no separate forfeiture was assessed, we note that Tidewater’s use of a manual light monitoring system does
not comply with Section 17.47(a) of the Rules, which requires either daily visual observation of the antenna structure’s
lights or an automatic indicator designed to register light failure or installation of an automatic alarm system designed
to detect light failure. See 47 C.F.R. § 17.47(a). Instead, Tidewater consciously chose to use a noncompliant
monitoring system that apparently contributed to the outage on subsequent days in June 2005.
9 These lighting levels were 0.47%, 0.67%, and 0.037% for June 3, 4, and 5, 2005 respectively.
10 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies to violations for which forfeitures are assessed
under Section 503(b) of the Act, provides that “[t]he term 'willful', when used with reference to the commission or
omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent
to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act….” See
Southern California Broadcasting Co.
, 6 FCC Rcd 4387 (1991).
11 Tidewater’s Application for Review at 9.
12 Memorandum Opinion and Order, 21 FCC Rcd at 14590-14591 at para. 6, citing North Country Repeaters, 19 FCC
Rcd 22139 (Enf. Bur. 2004); PBJ Communications of Virginia, Inc., 7 FCC Rcd 2088 (1988); Standard
Communications Corp.
, 1 FCC Rcd 358 (1986); and Triad Broadcasting Co., Inc. 96 FCC 2d (1984).
2

Federal Communications Commission

FCC 10-28

6.
As to the law, Tidewater claims that the Bureau improperly relied on Eure Family
Limited Partnership to support the well-established principle that “licensees and other Commission
regulatees are responsible for the acts and omissions of their employees and independent contractors.”13
All licensees and regulatees that are not sole proprietors rely upon employees and contractors to operate
their businesses and remain ultimately responsible for the actions of the employees or contractors. To
hold otherwise would allow licensees and regulatees to delegate or contract away their responsibilities to
comply with the Rules. Tidewater states that Eure Family Limited Partnership should not be cited as
precedent, because the forfeiture in that case was not paid or adjudicated against Eure Family Limited
Partnership, but was the subject of a voluntary settlement.14 Although Eure Family Limited Partnership
may not have paid the forfeiture,15 the Commission did not reverse its decision. Thus, while Eure Family
Limited Partnership may not have admitted wrongdoing in the settlement, we may rely upon the
Commission’s interpretations in the forfeiture order and memorandum opinion and order when
considering other cases.16
7.
Tidewater again requests that the forfeiture be reduced or canceled, consistent with
Vernon Broadcasting, Inc.17 The Bureau previously distinguished the instant case from Vernon
Broadcasting
, Inc., on the grounds that Tidewater did not instruct its employees on its lighting procedures
right before the June 2005 violation and did not regularly inspect the tower lights.18 Tidewater asserts in
its Application for Review that although its last formal instruction on the lighting procedures occurred in
2004, the chief engineer reviewed the operator logs on a weekly basis and discussed issues with the
operators directly. According to the chief engineer, operators were aware of this review process and were


13 Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd 21861, 21863,-64, para. 7 (2002);
see also MTD, Inc., Memorandum Opinion and Order, 6 FCC Rcd 34 (1991) (holding that a company's reliance on an
independent contractor to construct a tower in compliance of FCC rules does not excuse that company from a
forfeiture); Wagenvoord Broadcasting Co., Memorandum Opinion and Order, 35 FCC 2d 361 (1972) (holding a
licensee responsible for violations of FCC rules despite its reliance on a consulting engineer); Petracom of Joplin,
L.L.C.
, 19 FCC Rcd 6248 (Enf. Bur. 2004) (holding a licensee liable for its employee's failure to conduct weekly EAS
tests and to maintain the “issues/programs” list).
14 The voluntary settlement occurred in a federal court and pertained solely to the collection of the forfeiture. This
settlement occurred in lieu of a trial de novo and did not overturn the Commission’s final order. As part of the
settlement, Eure Family Limited Partnership did not admit or deny any violation set forth in the Forfeiture Order or
Notice of Apparent Liability. Tidewater’s counsel also served as counsel to Eure Family Limited Partnership. See
Tidewater Application for Review, page 8.
15 Eure Family Limited Partnership, however, made a voluntary contribution to the United States Treasury.
16 Cf. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 29 (1994) (“[M]ootness by reason of
settlement does not justify vacatur of a judgment under review. This is not to say that vacatur can never be granted
when mootness is produced in that fashion. As we have described, the determination is an equitable one, and
exceptional circumstances may conceivably counsel in favor of such a course”). The Memorandum Opinion and Order
in Eure Family Partnership is a final order of the Commission. Despite the voluntary settlement, no exceptional
circumstances exist that would prompt the Commission to vacate or overturn that decision.
17 Vernon Broadcasting, Inc., Memorandum Opinion and Order, 60 RR 2d 1275, 1277 (1986) (fencing forfeiture
cancelled because licensee regularly inspected fence and inspected it shortly before inspection, fence was vandalized
between the time of its inspection and agent inspection, and there was no evidence that the licensee was aware of the
broken fence or that it had failed to monitor the condition of the site).
18 See Memorandum, Opinion and Order, para. 6.
3

Federal Communications Commission

FCC 10-28

free to discuss questions with him at any time.19 In addition, Tidewater states its chief engineer observed
the antenna structure on a regular basis.20
8.
We conclude that the instant case can be distinguished from Vernon Broadcasting, Inc.
Vernon Broadcasting violated Section 73.49 of the Rules, which does not impose a daily observation
requirement. Additionally, the former Field Operations Bureau found that vandals damaged the fence and
that Vernon Broadcasting’s actions did not contribute to the violation, i.e., Vernon Broadcasting had not
failed to monitor the condition of the fence. Here, no intervening act outside of the owner’s control, like
vandalism, led to the violation. Thus, although Tidewater’s chief engineer was unaware of the lighting
outage when the agent observed the outage, 21 the violation at issue stems from Tidewater’s own
employee’s failure to act.
9.
In further support of its request to reduce the forfeiture, Tidewater cites for the first time
U.S. v. Daniels. 22 We find Daniels inapposite. That case involved the repeated violation of a rule that
had been recently amended. Although irrelevant to whether a repeated violation occurred, the Court
found that the Defendant was not aware of this new rule, had been complying in good faith with the
broadcasting hours permitted under the previous rule, and ceased broadcasting immediately upon
notification of the violation.23 Accordingly, the Court found a reduction in the forfeiture appropriate due
to the “nature of the violations involved here, the lack of complaints and the Defendant's good faith
inadvertent mistakes.”24 In this case, however, Tidewater willfully violated a well-established rule.
Moreover, the Bureau already reduced the forfeiture due to Tidewater’s good faith efforts to comply with
Rules, i.e., notifying the Federal Aviation Administration (“FAA”) after it became aware of the outage.25
10.
Finally, Tidewater again asserts that the Bureau erred in not granting a reduction of its
forfeiture based on its history of compliance. Tidewater argues, pursuant to Section 504(c) of the Act, that
the facts underlying a notice of violation or unpaid forfeitures cannot be used against it until they have been
adjudicated or paid.26 We disagree.
11.
The Commission interpreted Section 504(c) of the Act and found that:
The statute says that the issuance of an NAL shall not be used against a person unless the forfeiture
has been paid or the person is subject to a final court order to pay. It does not say that the facts
underlying prior NALs shall not be used against a person. … It seems readily apparent that the
Commission has authority to take into account, in assessing a forfeiture, a history of violations by a
party that had not been the basis for prior NALs. That is, for example, if a licensee committed a
minor violation of a rule, were admonished for it and then committed the same violation again, the


19 See Declaration of Donald Crowder, page 1, attached to Tidewater Application for Review.
20 See id.
21 Tidewater’s employee logged a light outage on June 3, 2005, but failed to contact the chief engineer. The
Commission agent observed the light outage on June 4, 2005.
22 U.S. v. Daniels, 418 F. Supp. 1074 (D.S.D. 1976).
23 See Daniels at 1080.
24 Daniels at 1080.
25 See Memorandum, Opinion and Order, para. 7.
26 47 U.S.C. § 504(c).
4

Federal Communications Commission

FCC 10-28

Commission could take the first violation into account in setting a forfeiture amount for the second
violation. But, under petitioners' interpretation, if the first violation had been a more serious one
that led to a forfeiture, the Commission could not take into account the first violation in setting the
forfeiture amount for the second violation. This would be illogical, to say the least.27
The facts establish a prior violation cognizable under our precedent. In 2001, there was a light outage on
Tidewater’s antenna structure lasting more than 30 minutes that was not immediately reported to the FAA.
Accordingly, a Notice of Violation was issued to Tidewater on November 16, 2001. Tidewater’s response to
the Notice of Violation did not deny that the light outage had occurred or that it had not immediately
contacted the FAA. Rather, Tidewater admitted that its automatic light system malfunctioned and did not
alert it to the light outage. After the release of the Notice of Violation, the Bureau issued a notice of
apparent liability for forfeiture to Tidewater based on the 2001 outage. The Bureau subsequently cancelled
the monetary forfeiture in light of downward adjustments for Tidewater’s history of compliance and good
faith efforts to comply with the Rules. 28 The Notice of Violation was not cancelled, and the underlying facts
were properly considered by the Bureau in denying Tidewater’s request in this case to reduce its forfeiture
based on a history of compliance with the Rules.

12.
Upon review of the Application for Review and the entire record herein, we conclude that
Tidewater has failed to demonstrate that the Bureau erred in imposing a forfeiture for violation of Section
17.51(a) of the Rules. The Bureau properly decided the matters before it, and we uphold its decision to
impose a $8,000 forfeiture in its Forfeiture Order and Memorandum Opinion and Order.

IV.

ORDERING CLAUSES

13.
Accordingly,

IT IS ORDERED

, pursuant to Section 1.115(g) of the Commission's
Rules,29 that the Application for Review filed by Tidewater Communications LLC

IS DENIED

and the
Memorandum Opinion and Order

IS AFFIRMED

.
14.
Payment of the $8,000 shall be made in the manner provided for in Section 1.80 of the
Rules30 within 30 days of the release of this Order on Review. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of Justice for collection pursuant to Section
504(a) of the Act.31 Payment of the forfeiture must be made by check or similar instrument, payable to
the order of the Federal Communications Commission. The payment must include the NAL/Account
Number and FRN Number referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For payment by credit card,
an FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter
the NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in
block number 24A (payment type code). Requests for full payment under an installment plan should be


27 Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines
, Memorandum Opinion and Order, 15 FCC Rcd 303 (1999).
28 See Tidewater Communications LLC, Memorandum Opinion and Order, 18 FCC Rcd 5524 (Enf. Bur. 2003)
(“Memorandum Opinion and Order”).
29 47 C.F.R. § 1.115(g).
30 47 C.F.R. § 1.80.
31 47 U.S.C. § 504(a).
5

Federal Communications Commission

FCC 10-28

sent to: Chief Financial Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations Group Help Desk at 1-877-480-3201
or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Tidewater will
also send electronic notification on the date said payment is made to SCR-Response@fcc.gov.
15.

IT IS FURTHER ORDERED

that this Order shall be sent by regular mail and by
certified mail, return receipt requested, to Tidewater Communications LLC at its address of record and to
its attorney, Gary S. Smithwick, Smithwick & Belendiuk, P.C., 5028 Wisconsin Avenue, NW, Suite 301,
Washington, DC 20016.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch
Secretary
6

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.