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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
James A. Davis ) File No.: EB-09-HU-0022
Owner of Antenna Structure No.: ) NAL/Acct. No.: 201232540003
1214169
) FRN: 0021763453
Hearne, Texas
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: May 16, 2012 Released: May 16, 2012
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that James A. Davis, owner of antenna structure number 1214169
(the Antenna Structure), in Hearne, Texas, apparently willfully and
repeatedly violated Section 303(q) of the Communications Act of 1934,
as amended (Act), and Sections 17.48(a), 17.50, 17.51(a), and 17.57
of the Commission's rules (Rules) by failing to: (1) notify
immediately the Federal Aviation Administration (FAA) of an antenna
structure light outage; (2) clean or repaint his antenna structure as
often as necessary to maintain good visibility; (3) exhibit red
obstruction lighting from sunset until sunrise; and (4) notify the
Commission of a change in ownership of an antenna structure. We
conclude that Mr. Davis is apparently liable for a forfeiture in the
amount of thirteen thousand dollars ($13,000). In addition, we direct
Mr. Davis to submit, no later than thirty (30) calendar days from the
date of this NAL, a statement signed under penalty of perjury that he
has updated the ownership information for his antenna structure and
that he has taken measures to come into compliance with the
Commission's antenna structure rules.
II. BACKGROUND
2. On March 20, 2009, an agent from the Houston Office of the Enforcement
Bureau (Houston Office) observed that the paint on antenna structure
number 1214169 was severely faded, such that it no longer provided
good visibility. In May 2009, the agent observed no change in the
Antenna Structure's paint since March 20, 2009. On May 4 and May 8,
2009, an agent from the Houston Office inspected the Antenna Structure
after local sunset and on each night observed that the red obstruction
lights on the structure were not operational. On May 4, 2009, the
agent contacted the FAA and determined that a Notice to Airmen (NOTAM)
had not been issued regarding the lighting outage. On May 13, 2009, an
agent from the Houston Office learned that Clear Channel
Communications sold antenna structure number 1214169 to Mr. Davis
effective September 8, 2008. However, in May 2009, the Commission's
Antenna Structure Registration (ASR) database did not list Mr. Davis
as the owner of
the structure.
3. On March 16, 2010, the Houston Office issued a Citation to Mr. Davis.
The Citation notified Mr. Davis that he violated Section 17.48(a)
(failure to notify the FAA of an antenna structure light outage),
Section 17.50 (failure to clean and repaint a structure as often as
necessary to maintain good visibility), Section 17.51(a) (failure to
exhibit red obstruction lighting from sunset to sunrise), and
Section 17.57 (failure to update the Commission immediately upon
change in ownership information of an antenna structure) of the Rules.
The Citation warned Mr. Davis that his "failure to update the
ownership information in the ASR database, failure to repaint the
antenna structure, and failure to repair the light outage would
constitute further violations of the Rules, which could subject [him]
to substantial monetary forfeitures." Although Mr. Davis signed the
certified mail delivery receipt, he did not respond to the Citation.
4. On October 4 and 5, 2011, an agent from the Houston Office
re-inspected antenna structure number 1214169 and observed no change
in the condition of the structure. The paint on the Antenna Structure
was still severely faded and did not provide good visibility, and the
red obstruction lights were not exhibited after local sunset. An
active NOTAM was in place, because the agent from the Houston Office
had notified the FAA of the lighting outage. There was no evidence
that Mr. Davis had ever notified the FAA of the lighting outage. As of
March 2, 2012, the ASR database still did not list Mr. Davis as the
owner of antenna structure number 1214169.
III. DISCUSSION
5. 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 Comply with Antenna Structure Painting and Lighting
Requirements and Failure to Notify the FAA
6. 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 17.50 of the Rules states that "[a]ntenna
structures requiring painting under this part shall be cleaned or
repainted as often as necessary to maintain good visibility." Section
17.48(a) of the Rules states that the owner of any antenna structure
which is registered with the Commission and has been assigned lighting
specifications shall report immediately to the FAA any observed or
otherwise known extinguishment of any top steady burning light or any
flashing obstruction light, regardless of its position, not corrected
within 30 minutes. Section 17.51(a) of the Rules states that "[a]ll
red obstruction lighting shall be exhibited from sunset until sunrise
unless otherwise specified."
7. Antenna structure number 1214169 is 112.2 meters in overall height
above ground and is required to be painted and lighted. As discussed
above, during inspections of the Antenna Structure on October 4 and 5,
2011, an agent from the Houston Office observed that the paint on the
Antenna Structure was severely faded and did not provide good
visibility. The condition of the paint had deteriorated significantly
from the time the Houston Office first inspected the Antenna Structure
in March and May 2009, such that the agent was unable to discern
alternating bands of color on the structure from any distance. On
October 4 and 5, 2011, the agent also observed that the red
obstruction lights on the Antenna Structure were extinguished after
sunset. Moreover, there is no evidence that Mr. Davis ever notified
the FAA of the lighting outage on the Antenna Structure. Based on the
evidence before us, we find that Mr. Davis apparently willfully and
repeatedly violated Section 303(q) of the Act and Sections 17.48(a),
17.50, and 17.51(a) of the Rules by failing to: (1) clean and repaint
the Antenna Structure to maintain good visibility; (2) exhibit
required red obstruction lighting on the Antenna Structure; and (3)
notify the FAA of the lighting outage.
B. Failure to Notify the Commission of Change in Ownership
8. 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." As of March 2, 2012, the ASR database still
did not list Mr. Davis as the owner of antenna structure number
1214169. Based on the evidence before us, we find that Mr. Davis
apparently willfully and repeatedly violated Section 17.57 of the
Rules by failing to notify immediately the Commission of a change in
ownership information for the Antenna Structure.
C. Proposed Forfeiture Amount and Reporting Requirement
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 and failing to file
required forms or information is 3,000. 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 Mr. Davis is apparently liable for a total forfeiture of $13,000,
consisting of the following: $10,000 for violations of Sections
17.48(a), 17.50, and 17.51(a) of the Rules and $3,000 for violation of
Section 17.57 of the Rules.
10. We direct Mr. Davis to submit a written statement, pursuant to Section
1.16 of the Rules, signed under penalty of perjury by Mr. Davis,
stating that he has updated the ownership information for the Antenna
Structure in the ASR database and that he has complied with the
Commission's antenna structure painting and lighting requirements. The
statement should specify any steps taken to come into compliance,
including the timeframe for the repair or replacement of the
structure's red obstruction lighting and the repainting of the
structure. Mr. Davis must also state that, until the lights are
repaired or the structure is dismantled, he will ensure that the FAA
maintains an active NOTAM regarding the structure. This statement must
be provided to the Houston Office at the address listed in paragraph
13 within thirty (30) calendar days of the release date of this NAL.
IV. ORDERING CLAUSES
11. 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, James A. Davis is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of thirteen thousand dollars ($13,000) for violations of
Section 303(q) of the Act and Sections 17.48(a), 17.50, 17.51(a), and
17.57 of the Commission's rules.
12. 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,
James A. Davis SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
13. IT IS FURTHER ORDERED that James A. Davis SHALL SUBMIT a written
statement as described in paragraph 10, 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 the Federal
Communications Commission, Enforcement Bureau, South Central Region,
Houston Office, 9597 Jones Road, #362, Houston, Texas 77065. James A.
Davis shall also e-mail the written statement to SCR-Response@fcc.gov.
14. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN
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 sent to: Chief Financial
Officer -- Financial Operations, 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 at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. James A. Davis shall
also send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
15. 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, Houston Office, 9597 Jones Road, #362, Houston, Texas,
77065 and include the NAL/Acct. No. referenced in the caption. James
A. Davis also shall email the written response to
SCR-Response@fcc.gov.
16. 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.
17. 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 regular mail, to James A. Davis at his address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Stephen P. Lee
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 303(q); 47 C.F.R. S:S: 17.48(a), 17.50, 17.51(a), and 17.57.
The agent observed the Antenna Structure's non-operational lights at 8:40
p.m. on both days. Local sunset on May 4 and May 8, 2009 was 8:07 p.m. and
8:10 p.m., respectively.
The agent informed the FAA of the lighting outage and a NOTAM was issued
on May 4, 2009.
Clear Channel Broadcasting, Inc. acquired the Antenna Structure from Equal
Access Media, Inc. in 2006. See Letter from Steve Davis, Senior Vice
President, Engineering, Facilities & Capital Management, Clear Channel
Broadcasting, Inc., to Stephen P. Lee, Resident Agent, Houston Office,
South Central Region, Enforcement Bureau (Apr. 30, 2012).
Bill of Sale from Clear Channel Broadcasting, Inc. to James Davis,
executed Sept. 8, 2008. The antenna structure sold to Mr. Davis did not
house any radio licensees and has remained vacant to date.
See Antenna Structure Registration database for antenna structure number
1214169.
Citation No. C201032540002 (rel. Mar. 16, 2010) (Citation).
Id.
The agent observed the Antenna Structure's non-operational lights at 7:35
p.m. on both evenings. Local sunset on October 4 and 5, 2011 was 7:08 p.m.
and 7:07 p.m., respectively.
Agents from the Houston Office have been regularly notifying the FAA of
the lighting outage on the structure every two weeks since May 2009.
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: 17.50.
47 C.F.R. S: 17.48(a).
47 C.F.R. S: 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
1214169.
47 C.F.R. S: 17.57.
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, 17.48(a), 17.50, 17.51(a), and 17.57.
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 12-755
3
Federal Communications Commission DA 12-755