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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB-02-PO-136
)
Sutro Corporation ) NAL/Acct. No. 200232920001
Payette, Idaho )
) FRN 0007562150
MEMORANDUM OPINION AND ORDER
Adopted: August 2, 2004 Released: August 5,
2004
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
deny the November 12, 2003 Application for Review filed by Sutro
Corporation c/o John H. Runkle (``Sutro''), of the October 14,
2003 Forfeiture Order1 issued by the Enforcement Bureau
(``Bureau''). In that Forfeiture Order, the Bureau found Sutro
liable for a monetary forfeiture in the amount of two thousand
four hundred dollars ($2,400) for repeated violation of Section
17.4(a) of the Commission's Rules (``Rules'')2 for failing to
register its antenna structure located in Payette, Idaho.
II. BACKGROUND
2. On July 31, 2002, the Commission's Portland, Oregon,
Resident Agent Office (``Portland Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') in the amount of
three thousand dollars ($3,000) to Sutro for the above-referenced
violation.3 Specifically, the Portland Office found that
contrary to rules adopted by the Commission in 1995 regarding
tower registration,4 and a subsequent Public Notice regarding the
same,5 on May 23, 2002 and July 30, 2002, the 405 foot tower
owned by Sutro and located at 44º 03' 44'' North Latitude and
116º 54' 22'' West Longitude in Payette, Idaho was not registered
with the Commission in apparent willful and repeated violation of
Section 17.4(a).6
3. In its response to the NAL, Sutro admitted that the
Payette tower was unregistered until August 27, 2002.7 By way of
explanation, Sutro averred that it made several attempts to
register the Payette tower by filing a ``FCC Application for
Antenna Structure Registration'' (``ASR application'') 8 for the
Payette tower on June 26, 1998, January 28, 2000, August 8, 2002,
and August 20, 2002.9 Sutro sought mitigation of the forfeiture
based on its good faith efforts to register the structure and its
claim of a history of overall compliance. Finally, in its
Response, Sutro, citing to C.W.H. Broadcasting 10 requested a
forfeiture reduction from $2,400 to $500.11
4. On October 14, 2003, the Bureau released a Forfeiture
Order finding Sutro liable for a monetary forfeiture in the
amount of $2,400 for its failure to register its antenna
structure in repeated violation of the Section 17.4(a) of the
Rules.12 In the Forfeiture Order, the Bureau noted that Sutro's
first ASR application, was untimely filed because the filing
window for ASR applications for existing antenna structures in
Idaho closed on February 28, 1998.13 The Bureau noted that on
August 3, 1998, the Commission staff dismissed Sutro's first ASR
application without prejudice, because Sutro provided coordinates
that did not match those submitted by a Federal Aviation
Administration (``FAA'') clearance study for the Payette tower.14
In the Dismissal Letter, Sutro was instructed to check the
accuracy of its tower coordinates and submit to the FAA a new
Form 7460-1 in order to obtain a new clearance with the correct
coordinates, and to file with the Commission a new ASR
application within 90 days (by November 1, 1998).15 Sutro filed
a revised FAA form almost three months after the 90 day period,16
and its second ASR application nearly fifteen months after the 90
day period.
5. The Bureau Forfeiture Order states that Sutro's second
ASR application was returned without prejudice by the Commission
staff on February 8, 2000, because it was submitted on an
outdated form.17 The Bureau noted that the FAA issued a new
clearance concerning the Payette tower on February 28, 2000.18
The Bureau also noted that Sutro filed its third ASR application
two and a half years after the dismissal of its second ASR
application, and almost two months after Sutro was advised of the
violation by the Portland Office.19
6. In examining Sutro's request for mitigation, the Bureau
found Sutro's explanation to be ``completely inadequate because
of the extreme length of the delay in registering the tower, and
because, as explained in the August 3, 1998 Dismissal Letter,
Sutro did not need to wait for a new FAA clearance before filing
its registration application.''20 The Bureau found that the
lengthy filing delays concerning Sutro's second and third ASR
applications evidenced a lack of diligence and that its attempts
to register its tower did not mitigate the violation.21 In
addition, the Bureau determined that Sutro's subsequent
correction of the tower violation after being notified by
Commission staff did not warrant mitigation, citing Seawest Yacht
Brokers for the proposition that ``corrective action taken to
come in compliance with Commission rules or policy is expected,
and does not nullify or mitigate any prior forfeitures or
violations.''22
7. The Bureau distinguished C.W.H. Broadcasting, finding
it to be inapposite as the reduction of the forfeiture to $500 in
that case ``was primarily based on financial hardship, which is
not present in this case.''23 Finally, the Bureau did reduce the
forfeiture amount from $3,000 to $2,400 based on Sutro's history
of overall compliance.24
8. In its Application for Review, Sutro reiterates the
arguments previously rejected by the Bureau's Forfeiture Order.
Sutro also again argues for a forfeiture amount of no more than
$500 (reduced from $2,400), reiterating an alleged good faith
effort to register the subject tower, and again citing to C.W.H.
Broadcasting, where a forfeiture amount was reduced to $500.
Sutro maintains that although the Bureau's C.W.H. Broadcasting
Forfeiture Order reduced the $20,000 proposed forfeiture to
$3,500 based on an inability to pay,25 there was no indication in
C.W.H. Broadcasting, in which the Bureau granted in part C.W.H.
Broadcasting's Petition for Reconsideration26 of the C.W.H.
Broadcasting Forfeiture Order, that the forfeiture was further
reduced from $3,500 to $500 based on an inability to pay.27
III. DISCUSSION
9. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934
as amended (``Act''), 28 Section 1.80 of the Rules,29 and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines.30 In
examining Sutro's Application for Review, Section 503(b) of the
Act requires that we 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 any such other matters as justice
may require.31
10. Sutro argues, as it did in response to the NAL, that
its unsuccessful attempts to register the antenna tower should be
viewed as good faith efforts, and seeks cancellation or a further
reduction of the forfeiture assessed by the Bureau on that basis.
In forfeiture proceedings, we have generally provided reductions
based on the good faith corrective efforts of a violator when
those corrective efforts were taken prior to Commission
notification of the violation.32 However, in view of the facts
before us, we agree with the Bureau's ruling that the periodic
unsuccessful attempts to register the Payette tower do not
mitigate the assessed forfeiture for its violation of Section
17.4(a) of the Rules. Consistent with the Bureau's finding, we
find that the lengthy delays in Sutro's filing of its second and
third ASR applications evince a lack of diligence such that the
periodic unsuccessful attempts to register the tower do not rise
to the level of good faith efforts to comply that would entitle
Sutro to further mitigation of the assessed forfeiture amount.
11. Further, we reiterate that the C.W.H. Broadcasting and
Sutro cases may be distinguished on the basis that each entity
seeks a downward adjustment based on different criteria: C.W.H.
Broadcasting successfully based its claim on an inability to pay,
while Sutro unsuccessfully bases its claim on an entirely
different issue¾a good faith effort to adhere to the Rules.
Moreover, C.W.H. Broadcasting submitted sufficient evidence in
its response to the NAL33 to establish an inability to pay, and
submitted amplified evidence in its Petition for Reconsideration
regarding its financial condition sufficient to warrant a further
reduction in the forfeiture amount based on its financial
hardship to C.W.H. Broadcasting. Sutro, on the other hand, was
initially unsuccessful in establishing a good faith attempt to
adhere to the Rules, and, in its Application for Review, offered
no additional evidence of good faith which would warrant a
further reduction of the forfeiture amount. Accordingly, we
affirm the Bureau's finding that the factors present in C.W.H.
Broadcasting are not present here, and conclude that C.W.H.
Broadcasting does not support a further reduction in the
forfeiture amount.
12. We have examined Sutro's Application for Review and are
not persuaded to reduce the forfeiture amount. Accordingly, we
affirm the Bureau's Forfeiture Order finding Sutro Corporation
liable for a forfeiture amount of $2,400.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to 1.115(a)
and 1.115(g) of the Rules,34 the Sutro Corporation Application
for Review of the Enforcement Bureau Forfeiture Order for NAL No.
200232920001 IS DENIED.
Payment of the $2,400 forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. 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.35
Payment may be made 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 reference the NAL/Acct.
No. referenced in the caption. Requests for full payment under
an installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C. 20554.
14. IT IS FURTHER ORDERED that copies of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to Sutro Corporation., c/o John H. Runkle, P.O. Box
1826, Boise, Idaho 83701, and to its counsel, Matthew H.
McCormick, Esq., Reddy, Begley & McCormick, LLP, 2175 K Street,
N.W., Suite 350, Washington, D.C. 20037-1845.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 Sutro Corporation, 18 FCC Rcd 20529 (Enf. Bur. 2003)
(``Forfeiture Order'').
2 47 C.F.R. § 17.4(a) (required the owners of existing antenna
structures that were assigned painting or lighting requirements
before July 1, 1996, to register those antenna structures no
later than July 1, 1998).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232920001 (Enf. Bur., Portland Office, released July 31, 2002)
(``NAL'').
4 Streamlining the Commission's Antenna Structure Clearance
Procedures and Revision of Part 17 of the Commission's Rules
Concerning Construction, Marking, and Lighting of Antenna
Structures, 11 FCC Rcd 4272 (1995).
5 Public Notice, ``No-Tolerance Policy Adopted for Unregistered
Antenna Structures,'' 1999 WL 10060 (WTB, released January 13,
1999).
6 On June 11, 2002, an Agent from the Portland Office advised Mr.
Runkle that the tower must be registered, and a subsequent search
on July 30, 2002, of the Commission's antenna structure
registration records revealed that the tower remained
unregistered.
7 Sutro Corporation, c/o John H. Runkle, Response to Notice of
Apparent Liability for Forfeiture at 3 (Aug. 30, 2002)
(``Response'').
8 See FCC Form 854, ``FCC Application for Antenna Structure
Registration''.
9 Sutro successfully registered its tower when its fourth ASR
application was granted by the Commission on August 27, 2002.
See Response at and 3.
10 C.W.H. Broadcasting, Inc., 17 FCC Rcd 14324 (Enf. Bur. 2002)
(forfeiture reduced from $3,500 to $500).
11 Response at 4.
12 The Bureau only determined that Sutro's violations were
repeated, it therefore, did not deem it necessary to determine
whether they were also willful. See Koke, Inc., 23 FCC 2d 191
(1970); see also, 47 U.S.C. § 503(b).
13 Forfeiture Order, 18 FCC Rcd at 20532 citing Streamlining the
Commission's Antenna Structure Clearance Procedure, 11 FCC Rcd at
4302 (1995).
14 See Letter from Information Processing Branch, Federal
Communications Commission to John Runkle, Sutro Corporation (Aug
3, 1998) (``Dismissal Letter''); see also Response at 2.
15 Dismissal Letter at 1.
16 Sutro filed FAA Form 7460-1 on February 24, 1999. See
Response at 2.
17 See Notice of Immediate Application Dismissal letter from
Federal Communications Commission to Sutro Corporation (Feb. 8,
2000) (all manual ASR application submissions made after June 24,
1999, must be made on FCC Form 854 (June 1999 edition)).
18 See Application for Review at 2.
19 Sutro explained that it expected to file its third ASR
application after receiving a new FAA clearance but did not learn
of the new clearance until it contacted the FAA following the
issuance of the NAL. See Response at 2.
20 Forfeiture Order, 18 FCC Rcd at 20531.
21 Id.
22 Forfeiture Order, 18 FCC Rcd at 20531citing Seawest Yacht
Brokers, 9 FCC Rcd 6099, 6099 (1994).
23 Forfeiture Order, 18 FCC Rcd at 20531.
24 Id. at 18 FCC Rcd at 20532.
25 See C.W.H. Broadcasting, Inc., 17 FCC Rcd 4548, 4549 (Enf.
Bur. 2002) (``C.W.H. Broadcasting Forfeiture Order'') ($20,000
proposed forfeiture reduced to $3,500 based on inability to pay).
26 Letter from Charles W. Holt, owner, C.W.H. Broadcasting, Inc.,
to David H. Solomon, Chief, Enforcement Bureau (dated Mar. 11,
2002)(Petition for Reconsideration).
27 Application for Review at 4.
28 47 U.S.C. § 503(b).
29 47 C.F.R. § 1.80.
30 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303
(1999).
31 47 U.S.C. § 503(b)(2)(D).
32 See Note to Section 1.80(b)(4) of the Rules, 47 C.F.R. §
1.80(b)(4). ``Section II. Adjustment Criteria for Section 503
Forfeitures,'' ``Downward Adjustment Criteria,'' ``Good faith or
voluntary disclosure''; see also Radio One Licenses, Inc., 18 FCC
Rcd 15964,15965 (2003); recon. denied, 18 FCC Rcd 25481 (2003).
33 C.W.H. Broadcasting, Inc., NAL/Acct. No. 200232620001 (Enf.
Bur., New Orleans, released Oct. 24, 2001).
34 47 C.F.R., §§ 1.115(a) and (g).
35 47 U.S.C. § 504(a).