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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Super Towers, Inc. File No.: EB-11-TP-0142
)
Owner of Antenna Structure Number NAL/Acct. No.: 201232700006
1027587 )
FRN: 0019442458
Bonita Springs, Florida )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 18, 2012 Released: July 18, 2012
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Super Towers, Inc. (Super Towers), owner of antenna
structure number 1027587 (the Antenna Structure), in Bonita Springs,
Florida, apparently willfully and repeatedly violated Section 303(q)
of the Communications Act of 1934, as amended (Act), and Sections
17.47(a), 17.48(a), and 17.51(a) of the Commission's rules (Rules) by
failing to (1) exhibit red obstruction lighting from sunset to
sunrise, (2) notify the Federal Aviation Administration (FAA) of a
known lighting outage, and (3) monitor the antenna structure lighting
on a daily basis. We conclude that Super Towers is apparently liable
for a forfeiture in the amount of ten thousand dollars ($10,000). In
addition, we direct Super Towers to submit, no later than thirty (30)
calendar days from the date of this NAL, a statement signed under
penalty of perjury stating that it complies with the Commission's
antenna structure lighting, notification, and monitoring requirements.
II. BACKGROUND
2. Antenna structure number 1027587 is 223.7 meters in overall height
above ground and is required to be painted and lighted. On December 8,
and again on December 15, 2011, in response to a complaint, an agent
from the Enforcement Bureau's Tampa Office (Tampa Office) inspected
the Antenna Structure after sunset and observed that the top red
obstruction light was not lighted. On December 8, 2011, the agent
contacted the FAA and determined that Super Towers had not notified
the FAA of the light outage.
3. On December 16, 2011, an agent from the Tampa Office telephoned Super
Towers and spoke with its contract engineer/on scene representative.
The contract engineer stated that Super Towers learned of the light
outage on the Antenna Structure on December 15, 2011 from a tenant on
the structure. Super Towers also stated that (1) the structure did not
have an alarm system to monitor the lights, (2) it relied on an
"unreliable local" to observe the lights on a daily basis, and (3) it
had not contacted the FAA concerning the light outage.
III. DISCUSSION
4. 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. 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. 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, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Failure to Monitor and Exhibit Required Obstruction Lighting on the
Antenna Structure and Notify the FAA of the Lighting Outage
5. 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. Section 17.51(a) of the Rules states that "[a]ll
red obstruction lighting shall be exhibited from sunset until sunrise
unless otherwise specified." Section 17.47(a) of the Rules states that
owners of antenna structures "(1) shall make an observation of the
antenna structure's lights at least once each 24 hours either visually
. . . to insure that all such lights are functioning properly as
required; or alternatively (2) shall provide 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." Section
17.48(a) of the Rules states that owners of antenna structures "shall
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 . . . ."
6. On December 8, and again on December 15, 2011, an agent from the Tampa
Office observed that the required top red obstruction light on the
Antenna Structure was extinguished after sunset. During a telephone
conversation with an agent on December 16, 2011, Super Towers admitted
that (1) it had learned of the light outage on the previous day, (2)
it was not observing the structure's lights once every 24 hours and
had no automatic alarm system, and (3) it had not previously notified
the FAA of the outage. Based on the evidence before us, we find that
Super Towers apparently willfully and repeatedly violated Section
303(q) of the Act and Sections 17.47(a), 17.48(a) and 17.51(a) of the
Rules by failing to (1) exhibit all required red obstruction lighting
from sunset to sunrise on the Antenna Structure, (2) report the light
outage to the FAA, and (3) monitor the Antenna Structure's lights as
required.
B. Proposed Forfeiture Amount and Reporting Requirement
7. 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. 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. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Super Towers is apparently liable for a
total forfeiture in the amount of $10,000.
8. We direct Super Towers to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of Super Towers, stating that the lights on the
Antenna Structure have been restored, including the date of
restoration, or setting forth the timeframe for when the lights on the
Antenna Structure will be repaired or replaced. Super Towers shall
also certify that it will notify the FAA to ensure a NOTAM remains in
place until the antenna structure lights are restored. In addition,
Super Towers shall state that it now complies, or describe the steps
it will take to comply, with the Section 17.47 monitoring
requirements. This statement must be provided to the Tampa Office at
the address listed in paragraph 11 within thirty (30) calendar days of
the release date of this NAL.
IV. ORDERING CLAUSES
9. 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, Super Towers, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of Section
303(q) of the Act and Sections 17.47(a), 17.48(a), and 17.51(a) of the
Commission's rules.
10. 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 and Order,
Super Towers, Inc., SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. IT IS FURTHER ORDERED that Super Towers, Inc. SHALL SUBMIT a statement
as described in paragraph 8 to the Tampa Office 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, South Central Region,
Tampa Office, 4010 West Boy Scout Blvd. Suite 425, Tampa, Florida,
33607. Super Towers, Inc. shall also e-mail the written statement to
SCR-Response@fcc.gov.
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. Super Towers, 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. 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.
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. 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 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Tampa Office, 4010 West Boy Scout Blvd. Suite 425,
Tampa, Florida, 33607 and include the NAL/Acct. No. referenced in the
caption. Super Towers, Inc. also shall email 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.
16. 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 Super Towers, Inc. at 17
Crooked LN, Manchester, MA 01944.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 303(q); 47 C.F.R. S:S: 17.47(a), 17.48(a), 17.51(a).
See 47 C.F.R. S: 17.21(a) (requiring antenna structures more than 60.96
meters in height above the ground to be painted and lighted). See also
Antenna Structure Registration database for antenna structure number
1027587.
Local sunset time was 5:34 p.m. EST.
An agent from the Tampa Office notified the FAA of the lighting outage and
the FAA issued a Notice to Airmen (NOTAM) for the Antenna Structure on
December 8, 2011.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
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 . . . .").
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).
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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 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.
47 U.S.C. S: 303(q).
47 C.F.R. S: 17.51(a).
47 C.F.R. S: 17.47(a).
47 C.F.R. S: 17.48(a).
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. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S:S: 303(q), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 17.47(a), 17.48(a), 17.51(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1150
Federal Communications Commission DA 12-1150