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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Dalrymple Realty Corporation Owner of Antenna Structure
Number 1006946 Elmira, New York ) ) ) ) ) ) File No.:
EB-FIELDNER-13-00009887 NAL/Acct. No.: 201432400006 FRN: 00-0341-1279
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 9, 2014 Released: June 9, 2014
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. We propose a penalty of $10,000 against Dalrymple Realty Corporation
(Dalrymple) for apparently failing to clean or repaint its antenna
structure in Elmira, New York, as often as necessary to maintain good
daytime visibility. Although FCC agents observed that white
obstruction lighting was installed on the antenna structure for
daytime visibility, the lighting was not operational on the day of the
agents' inspection. Dalrymple informed the agents that the white
obstruction lighting had been in place in lieu of painting for
approximately ten years.
2. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Dalrymple, owner of antenna structure number 1006946 (Antenna
Structure), located in Elmira, New York, apparently willfully and
repeatedly violated Section 303(q) of the Communications Act, as
amended (Act)^, and Section 17.50 of the Commission's rules (Rules) by
failing to clean or repaint the Antenna Structure as often as
necessary to maintain good visibility. We conclude that Dalrymple is
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
3. The Antenna Structure has an overall height above ground level of 97.5
meters and, according to its Antenna Structure Registration (ASR), was
required to conform to the painting and lighting requirements of FAA
Advisory Circular 70/7460-1F, FAA Chapters 3, 4, 5 and 9.^ These
requirements specify that the Antenna Structure must be painted and
must display red obstruction lighting during the nighttime.
4. On July 11, 2013, at 4:52 p.m., an agent from the Philadelphia Office
inspected the Antenna Structure and observed that the paint on the
Antenna Structure was severely faded and flaking. The agent also
observed that, although the ASR specified that the Antenna Structure
must be painted, the Antenna Structure had a dual lighting system
consisting of a white medium intensity strobe light at the top level
for daytime visibility and red obstruction lights at the mid-level and
top level for nighttime visibility. At the time of the inspection,
however, the white medium intensity obstruction lighting on the
Antenna Structure was not operating.^ The agent contacted the FAA and
was informed that a Notice to Airmen (NOTAM) had not been issued for
the Antenna Structure.^
5. Later that day, the agent spoke to a representative from T&K
Communications, the entity that maintains the Antenna Structure for
Dalrymple. The representative reported to the agent that the white
obstruction lighting had been in place for daytime use in lieu of
painting for approximately ten years. The T&K representative also
informed the agent that Sound Communications, a tenant on the Antenna
Structure, was monitoring the obstruction lighting on behalf of
Dalrymple. The agent subsequently spoke to the station engineer for
Sound Communications, who reported that Sound Communications made
visual observations on a "casual" basis and that they were not aware
of an outage of the white obstruction lighting.
6. In response to a Notice of Violation issued by the Philadelphia Office
on July 24, 2013,^ Dalrymple reported that the white obstruction
lighting outage was repaired on July 14, 2013, the remote monitoring
system was installed, and an application was filed with the FAA
requesting approval to use the white obstruction lighting during the
daytime in lieu of paint.^ Dalrymple subsequently submitted FCC Form
854 notifying the FCC that the FAA approved a dual lighting system for
the Antenna Structure.^
III. DISCUSSION
7. Section 503(b) of the Communications Act of 1934, as amended (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 Maintain the Antenna Structure's Paint to Ensure Good
Visibility
8. The evidence in this case is sufficient to establish that Dalrymple
violated Section 303(q) of the Act and Section 17.50 of the Rules.^
Section 303(q) of the Act states that antenna structure owners must
maintain the painting and lighting of antenna structures as prescribed
by the Commission.^ Section 17.50 of the Rules states that "Antenna
structures requiring painting under this part shall be cleaned or
repainted as often as necessary to maintain good visibility." ^ ^ At
the time of the inspection on July 11, 2013, the ASR database
specified that the Antenna Structure must be painted for daytime
visibility. The Agent observed that the overall condition of the paint
on the Antenna Structure did not provide good visibility. The Agent
later learned that Dalrymple had not painted the Antenna Structure
since white obstruction lighting had been installed approximately ten
years prior to the inspection on July 11, 2013. Based on the evidence
before us, we find that Dalrymple apparently willfully and repeatedly
violated Section 303(q) of the Act and Section 17.50 of the Rules by
failing to clean and repaint the antenna structure as often as
necessary to maintain good visibility.
A. Proposed Forfeiture and Reporting Requirement
9. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failure to comply
with antenna structure marking and/or lighting 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 Dalrymple is apparently liable for a
total forfeiture in the amount of $10,000.^
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, Dalrymple Realty
Corporation 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 Section 17.50 of the
Commission's rules.^
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, Dalrymple
Realty Corporation 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. Dalrymple shall also send electronic
notification on the date said payment is made to
[1]NER-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 making full payment over time 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 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Philadelphia Office, One Oxford Valley Building, Suite 404,
2300 East Lincoln Highway, Langhorne, Pennsylvania 19047 and include
the NAL/Acct. No. referenced in the caption. Dalrymple also shall
e-mail the written response to [2]NER-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 principles (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 shall be sent by both Certified Mail, Return Receipt
Requested, and first class mail to Dalrymple Realty Corporation at
2105 South Broadway, Pine City, New York, 14871.
FEDERAL COMMUNICATIONS COMMISSION
David C. Dombrowski
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
^ 47 U.S.C. S 303(q).
^ 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
1006946.
^ The agent did not observe the Antenna Structure during the nighttime
hours.
^ See 47 C.F.R. S 17.48 (requiring tower owners to notify the FAA
immediately of any known outages of tower lighting lasting more than 30
minutes).
^ Dalrymple Realty Corporation, Notice of Violation, V2013324000033 (July
24, 2013) (on file in EB-FIELDNER-13-00009887).
^ Letter from David J. Dalrymple, Vice President, Dalrymple Realty
Corporation, to David Dombrowski, District Director, Philadelphia Office,
Northeast Region, Enforcement Bureau (August 12, 2013) (on file in
EB-FIELDNER-13-00009887).
^ See Antenna Structure Registration Database, File No. A0904623,
submitted May 8, 2014.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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., 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.
^ Because the Antenna Structure's ASR and the FAA "no hazard"
determination at the time of inspection specified that the Antenna
Structure must be painted, we conclude that it is appropriate here to
consider the condition of the paint on the Antenna Structure, and not the
white obstruction lighting, to determine Dalrymple's compliance with our
Rules. We note that, even if the Antenna Structure's ASR and the FAA "no
hazard" determination had specified white obstruction lighting, the
proposed forfeiture would have been the same. That is, if the Antenna
Structure's ASR specified white obstruction lighting, we would have found
Dalrymple apparently liable for a forfeiture in the amount of $10,000 for
willfully and repeatedly violating (1) Section 17.51(b) of the Rules, 47
C.F.R. S 17.51(b), for failing to exhibit continuously all medium
intensity obstruction lighting, and (2) Section 17.47(a) of the Rules, 47
C.F.R. S 17.47(a), for failing to make daily observations of the lighting
or install and maintain an automatic monitoring system. See e.g. ACS
Wireless, Inc., 2013 WL 5934048 (Enf. Bur. 2013).
^ 47 U.S.C. S 303(q).
^ 47 C.F.R. S 17.50.
^ 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).
^ We note that, while we consider the duration of the violation a serious
aggravating factor, the harm from that extended violation is mitigated by
the fact that the lighting has been in place for virtually the entire time
and we therefore decline to impose here an upward adjustment to the base
forfeiture amount. Cf. e.g., [3]Mt. Rushmore Broadcasting, Inc., Notice of
Apparent Liability for Forfeiture, 27 FCC Rcd 8263 (Enf. Bur. 2012)
(imposed upward adjustment of $4,000 for violation with base forfeiture of
$4,000 due to the ten-year duration of the violation).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
17.47(a), and 17.57.
^ 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. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 14-789
2
Federal Communications Commission DA 14-789
References
Visible links
1. mailto:NER-Response@fcc.gov
2. mailto:NER-Response@fcc.gov
3. http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=0004493&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2032585768&serialnum=2028298528&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=05D8443F&rs=WLW14.04