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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Communications Relay Corporation ) File Number: EB-04-LA-281
Antenna Structure Registrant ) NAL/Acct. No.: 200632900007
ASR #1019247 ) FRN: 0014046999
Claremont, California )
)
MEMORANDUM OPINION AND ORDER
Adopted: March 12, 2008 Released: March 14, 2008
By the Associate Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order"), we deny the Petition
for Reconsideration ("Petition") filed on January 22, 2007, by
Communications Relay Corporation ("CRC"), registrant of antenna
structure #1019247, in Claremont, California. CRC seeks
reconsideration of the Forfeiture Order, issued by the Western
Region, Enforcement Bureau ("Region"), in which CRC was found liable
for a monetary forfeiture in the amount of $13,000 for repeated
violations of Section 303(q) of the Communications Act of 1934, as
amended, ("the Act"), and Sections 17.23, 17.47, 17.48, 17.49 and
17.57 of the Commission's Rules ("Rules"). For the reasons discussed
below, we deny CRC's Petition.
II. BACKGROUND
2. According to the Commission's ASR database, antenna structure #1019247
is required to have painting and lighting in accordance with Chapters
3, 4, 5 and 13 of FAA Circular 70/7460-1J. Specifically, the structure
is required to be painted and have obstruction lighting consisting of
at least one flashing red beacon on top and two steady-burning
sidelights on opposite sides at the midpoint. On December 2, 2004,
agents from the Enforcement Bureau's Los Angeles Office observed that
no lights were functioning on antenna structure #1019247. A review of
Commission records showed KSCI, Inc., as the registrant of antenna
structure #1019247. On December 3, 2004, the Los Angeles Office
notified the Federal Aviation Administration's ("FAA's") Hawthorne
Automated Flight Service Station ("FSS") of the light outage. On
January 25, 2005, a Los Angeles agent conducted a follow-up inspection
of the structure and confirmed that no lights were functioning on the
structure.
3. On January 26, 2005, a Los Angeles agent contacted KSCI, Inc., and was
advised that the structure had been sold to CRC in September, 2004.
The agent contacted a CRC service representative and advised him that
the lights were not functioning on antenna structure #1019247. Later
on January 26, 2005, James Kay ("Kay"), the president of CRC, advised
the agent that CRC would make any repairs that would be required.
4. On January 27, 2005, Kay informed the Los Angeles Office that a relay
had burned out on the lighting system on antenna structure #1019247
but that the lighting system was now operational. Subsequent to Kay's
report that the lights were operational, however, the Los Angeles
Office received a report that no tower lights were visible on the
structure.
5. On February 10, 2005, a Los Angeles agent again contacted CRC and
relayed the reports that the lights on antenna structure #1019247 were
not operational and reminded CRC that lighting was required on the
structure. Kay and the CRC service representative responded that CRC
was purchasing all new lights to install on the structure. On February
17, 2005, a Los Angeles agent spoke to the CRC service representative
who reported that the tower light's electrical problem had been
repaired, but that an alarm system for reporting light failures was
not yet installed. The representative also told the agent that he was
responsible for daily observations of the tower lights. On February
25, 2005, a Los Angeles agent made an observation of antenna structure
#1019247 and found that the lighting on the structure was operational.
6. On May 3, 2005, a Los Angeles agent reviewed the Commission's ASR
database and found it continued to show that antenna structure
#1019247 was registered to KSCI, Inc. On August 25, 2005, the Los
Angeles Office sent a Letter of Inquiry ("LOI") to CRC, which
requested confirmation of CRC's continued ownership of antenna
structure #1019247. The LOI also requested information concerning
whether CRC was aware of the requirements of Sections 17.47, 17.48,
17.49 and 17.57 of the Rules; when CRC became aware of these
requirements; and what efforts CRC had taken to maintain compliance
with these requirements.
7. On September 14, 2005, CRC replied to the LOI. In its reply, CRC
confirmed that it acquired antenna structure #1019247 in August of
2004, and that it was still the owner of the structure. CRC also
acknowledged that it had not yet notified the Commission of the change
in ownership of the structure. CRC stated that it had "purchased the
tower with the understanding from the previous owner that it was in
full compliance with all applicable regulatory requirements." CRC also
stated that it was generally aware of the Commission's tower
regulations. CRC acknowledged that it was not aware of the light
outages on antenna structure #1019247 until notified by the Los
Angeles Office in January, 2005. CRC explained the lighting problem as
being caused by a power line surge, one that is a recurring problem at
the site. CRC also stated that it had ordered a new beacon lighting
system with automated monitoring capabilities, but provided no
response regarding any other efforts to comply with Section 17.47,
which requires either daily observations of the lighting system by the
antenna structure owner or an automatic alarm system designed to
detect and indicate any failure of the lighting system. CRC also
failed to explain its efforts to comply with Section 17.48, which
requires notification to the FAA of failures and repairs; or Section
17.49, which requires detailed records be kept of lighting failures,
adjustments, repairs and all FAA notifications.
8. On September 26, 2005, CRC filed an application to notify the
Commission of the ownership transfer of the antenna structure from
KSCI, Inc., to CRC. On September 29, 2005, CRC sent a supplemental
reply to the LOI stating that a new lighting system and alarm system
had been purchased and would soon be installed on antenna structure
#1019247.
9. 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 17.21(a) of the Rules states antenna
structures shall be painted and lighted when they exceed 60.96 meters
(200 feet) in height above the ground or they require special
aeronautical study. According to its ASR, antenna structure #1019247
is 62.1 meters in height and is assigned painting and lighting
specifications by the FAA. Section 17.23 of the Rules requires that
registered antenna structures conform to the mandatory FAA painting
and lighting recommendations set forth on the FAA Notice issued to the
structure owner. Section 17.47 of the Rules requires either daily
observations of the lighting system by the antenna structure owner or
an automatic alarm system designed to detect and indicate any failure
of the lighting system. Section 17.48 of the Rules requires
notification to the FAA of failures and repairs. Section 17.49
requires detailed records be kept of lighting failures, adjustments,
repairs and all FAA notifications. Section 17.57 of the Commission's
Rules requires that the owner of an antenna structure for which an
Antenna Structure Registration Number has been obtained must
immediately notify the Commission upon any change in structure height
or change in ownership information.
10. On January 19, 2006, the Los Angeles Office issued a NAL in the amount
of $13,000 to CRC. CRC filed a response to the NAL on February 21,
2006 ("Response"). In the NAL, the Los Angeles Office found that CRC
apparently willfully and repeatedly violated Section 303(q) of the Act
and Sections 17.23, 17.47, 17.48, 17.49, and 17.57 of the Rules by
failing to comply with the antenna structure registration ("ASR")
lighting, monitoring, record keeping, and notification requirements
specified for antenna structure #1019247. In its Response, CRC argued
that antenna structure #1019247 is not more than 200 feet in height,
and that, therefore, no rule violations took place, that CRC's failure
to immediately update the ASR for antenna structure #1019247 did not
delay the Los Angeles Office in contacting CRC, that CRC fully
cooperated with the Los Angeles Office in determining the reasons for
the failures of the lighting on antenna structure #1019247, and that
CRC has a history of compliance with the Commission's Rules.
11. In the Forfeiture Order, the Region painstakingly and carefully
addressed each of CRC's arguments, ultimately finding no merit in any
of them. Specifically, the Region noted that CRC's primary argument,
that this structure did not exceed 60 meters in height, completely
missed the point that the structure was assigned painting and lighting
requirements by the FAA, and that the structure's lights were
repeatedly not functioning. The Region reiterated that Section
17.21(a) of the Rules states that "[a]ntenna structures shall be
painted and lighted when . . . [t]hey exceed 60.96 meters (200 feet)
in height above the ground or they require special aeronautical study
(emphasis added)." Section 17.23 of the rules requires that "each new
or altered antenna structure to be registered on or after January 1,
1996 must conform to the FAA's painting and lighting recommendations
set forth on the FAA determination of `no hazard' as referenced in the
. . . FAA Advisory Circulars: AC 70/7460-1J, `Obstruction Marking and
Lighting,' effective January 1, 1996, and AC 150/5345-43E,
`Specification for Obstruction Lighting Equipment,' dated October 19,
1995." The original registrant for antenna structure #1019247, KSCI,
Inc., filed an application to register the structure on April 22,
1997. In this application, KSCI, Inc., stated that the structure had
an overall height above ground level, including appurtenances, of 62.1
meters. As part of the registration application, KSCI, Inc., included
the FAA's determination of "no hazard" for the antenna structure, FAA
Study Number 97-AWP-0713-OE, which was issued on March 25, 1997. As
detailed on the ASR for structure #1019247, FAA Study Number
97-AWP-0713-OE requires that antenna structure #1019247 have painting
and lighting in accordance with Chapters 3, 4, 5 and 13 of FAA
Circular 70/7460-1J. Specifically, the structure is required to be
painted and have obstruction lighting consisting of at least one
flashing red beacon on top and two steady-burning sidelights on
opposite sides at the midpoint. Consequently the Region found that CRC
violated Section 17.23 by failing to ensure that antenna structure
#1019247 conform to the FAA's painting and lighting recommendations
set forth on the FAA determination of "no hazard" for the structure,
FAA Study Number 97-AWP-0713-OE. The Region also warned CRC that if it
believed that the ASR for antenna structure #1019247 should be
modified, it must first engage in the process of pursuing such a
modification.
12. The Region then concluded that because antenna structure #1019247 is
required to be painted and lighted in accordance with the relevant FAA
Notice, CRC's argument that Sections 17.23, 17.47, 17.48, 17.49 and
17.57 of the Rules do not apply to antenna structure #1019247 was
moot. The Region determined that, contrary to CRC's assertions, CRC's
compliance with these Rules was not voluntary. The Region also found
no merit in CRC's argument that CRC's failure to timely update the
ownership information for antenna structure #1019247 did not delay the
Los Angeles Office in contacting CRC about the light outage on the
structure. The Region found that, in fact, CRC's failure to update the
ownership information required the Los Angeles Office to first contact
the former owner of the structure in order to determine who was
responsible for the structure. Even after the Los Angeles Office
contacted CRC, eight months passed before CRC finally updated the
ownership information for the structure, despite repeated inquiries
from the Los Angeles Office.
13. The Region also found no merit in CRC's argument that its cooperation
with the Commission during the investigation warranted a reduction or
cancellation of the proposed forfeiture because the Commission has
stated in the past that an entity is expected to correct errors when
they are brought to the entity's attention and that such correction is
not grounds for a downward adjustment in a forfeiture. Finally, the
Region found that, contrary to CRC's request for a reduction based on
CRC's history of compliance with the Rules, the president of CRC,
James Kay, had a history of noncompliance. Specifically, in a prior
proceeding, the Commission found that Kay deliberately withheld
material information from the Commission, in violation of Section 1.17
of the Rules, and issued a forfeiture of $10,000 to Kay. Because of
Kay's previous noncompliance, the Region declined to find that CRC has
a history of compliance with the Rules.
III. DISCUSSION
14. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters. A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied.
15. In its Petition, CRC raises the exact same issues previously raised in
response to the NAL and detailed above, which have been thoroughly
considered and rejected by the Region. CRC argues that the Region
erred in rejecting these arguments but does not provide any new facts
or explanations demonstrating that there was a material error in the
Forfeiture Order. Once again CRC bases its argument on its allegation
that antenna structure #1019247 does not exceed 200 feet above ground
level, and consequently, CRC's compliance with the Rules cited was
voluntary. We reiterate and affirm the decision rendered by the
Region: that CRC repeatedly violated Section 303(q) of the Act and the
Commission's antenna structure rules. The FAA's determination of "no
hazard" for antenna structure #1019247, FAA Study Number
97-AWP-0713-OE, requires that antenna structure #1019247 have painting
and lighting in accordance with Chapters 3, 4, 5 and 13 of FAA
Circular 70/7460-1J. Section 17.23 of the Rules requires that antenna
structures conform to the FAA's painting and light requirements set
forth on the structure's determination of "no hazard." Antenna
structure #1019247 did not comply with those requirements at the time
of investigation. CRC was the owner of antenna structure #1019247 at
the time of the investigation. Consequently, we find the Region did
not err in rejecting CRC's arguments, and we affirm the Region's
finding that CRC is liable for violating the antenna structure rules,
as detailed above.
16. CRC also argues that the Region erred by assigning the history of
non-compliance of CRC's principal, James Kay, to CRC because Kay, as a
long-time Commission licensee, has no history of non-compliance
concerning antenna structure registration, marking or lighting. We
disagree. The Region appropriately took into account Kay's history as
a Commission licensee and regulatee generally when determining the
appropriate forfeiture amount. The Commission has said in the past
that the Enforcement Bureau is not limited to considering only
violations of Rules concerning the same subject matter when weighing a
history of compliance claim; the Bureau may also consider adjudicated
findings of violations of the Act or Rules other than the current
subject matter.
17. We have considered the arguments raised by the CRC in its Petition and
find they are without merit. Therefore, we deny the CRC's Petition,
and affirm the Region's Forfeiture Order finding CRC liable for a
forfeiture in the amount of $13,000.
IV. ORDERING CLAUSES
18. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, the Petition for Reconsideration filed on January
22, 2007, by Communications Relay Corporation, IS DENIED.
19. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's Rules,
Communications Relay Corporation IS LIABLE FOR A MONETARY FORFEITURE
in the amount of $13,000 for violating Section 303(q) of the Act, and
Sections 17.23, 17.47, 17.48, 17.49 and 17.57 of the Rules.
20. Payment of the 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. 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
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.
21. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail, Return Receipt Requested, to Communications
Relay Corporation, at its address of record, and its counsel of
record, Robert J. Keller, Esquire.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
Communications Relay Corporation, 21 FCC Rcd 14651 (EB 2006).
47 U.S.C. S: 303(q).
47 C.F.R. S:S: 17.23, 17.47 17.48, 17.49 and 17.57.
See FAA Circular Number 70/7460-1J, Chapters 3, 4, 5, 13.
The agent also contacted the FAA's Hawthorne Automated Flight Service
Station and reported the outage.
See Application No. A0467617, filed September 26, 2005. The Commission
granted the application and updated the ownership information on December
30, 2005.
Section 303(q) of the Act gives the Commission authority to regulate
certain antenna structures if and when such structures constitute, or
there is a reasonable possibility that they may constitute, a menace to
air navigation. 47 U.S.C. S: 303(q).
47 C.F.R. S: 17.21(a). See Max Media of Montana, LLC, 18 FCC Rcd 21375
(2003).
47 C.F.R. S: 17.23.
47 C.F.R. S: 17.47.
47 C.F.R. S: 17.48.
47 C.F.R. S: 17.49.
47 C.F.R. S: 17.57.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632900007
(Enf. Bur., Western Region, Los Angeles Office, released January 19,
2006).
47 U.S.C. S: 303(q).
47 C.F.R. S:S: 17.23, 17.47, 17.48, 17.49 and 17.57.
47 C.F.R. S: 17.21(a). The Region noted that in its Response, CRC
neglected to include the phrase "or when they require special aeronautical
study" when quoting Section 17.21(a). Response at 3.
47 C.F.R. S: 17.23.
The ASR for antenna structure #1019247 also states that the structure is
62.1 meters in height.
See FAA Circular Number 70/7460-1J, Chapters 3, 4, 5, 13.
21 FCC Rcd at 14655 - 14656.
As of the date of this Order, no modification has been made to the ASR for
antennas structure #1019247.
The Region also stated that its was "particularly troubled by CRC's
assertion that `CRC was not the owner of a registered structure until it
voluntarily submitted a notification of change of ownership in September
of 2005, well after the alleged violations.' CRC stated in its response to
the Los Angeles Office LOI that it acquired antenna structure #1019247 in
August 2004. CRC's failure to timely update the ownership information in
the ASR for antenna structure #1019247 does not shield it from liability
for its violations of the Rules beginning in August 2004, when it acquired
the antenna structure." 21 FCC Rcd at 14656.
21 FCC Rcd at 14656.
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76 (2002).
47 C.F.R. S: 1.17.
James Kay, 17 FCC Rcd 1834 (2002) aff'd sub nom. Kay v. Federal
Communications Commission, 396 F.3d 1184 (D.C. Cir. 2005) cert. denied,
126 S.Ct. 176 (2005).
21 FCC Rcd at 14656 - 14657.
See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., 15 FCC Rcd 18257, (EB
2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain
Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.
967 (1966).
EZ Sacramento, Inc., 15 FCC Rcd at 18257.
CRC acknowledges that the arguments presented are similar to those made in
its Response to the NAL, and asserts that the "representation" of these
issues is proper because the Region is subordinate to the Bureau, and
"presenting the matter to the Bureau Chief is a prerequisite for
Commission review" pursuant to Section 1.115(c) of the Rules, 47 C.F.R. S:
1.115(c). Even in this assertion, CRC is incorrect. As stated above, a
petition for reconsideration that reiterates arguments that were
previously considered and rejected will be denied. Additionally, the
Commission has determined that Section 1.115(c) requires that the
designated authority must pass on issues prior to the filing of an
application for review, but has never required that the designated
authority in all cases is the Chief of the relevant Bureau. See In the
Matter of Application of Educational Television Association of
Metropolitan Cleveland, Inc., 18 FCC Rcd 15117 (2003) (A branch of the
former Mass Media Bureau was relevant designated authority to pass on
issues prior to the filing of an application for review). In the present
case, the questions of fact and law raised by CRC were already considered
and rejected by the appropriate authority, the Western Regional Director,
in the Forfeiture Order.
Contrary to CRC's assertion, the Region's determination is not "an absurd
result" resulting in "monetary forfeitures to owners of towers that in
fact are not subject to the lighting requirement." CRC states that it is
in the process of modifying its registration information for antenna
structure #1019247. We note that as of the date of this Order, no
modification of the antenna structure registration for antenna structure
#1019247 has taken place. Even if CRC filed for a new FAA study, there is
no evidence that the FAA would not require painting and lighting on
antenna structure #1019247.
SBC Communications, Inc., 16 FCC Rcd 12306, 12309 (2001).
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 303(q).
47 C.F.R. S:S: 17.23, 17.47, 17.48, 17.49 and 17.57.
47 U.S.C. S: 504(a).
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Federal Communications Commission DA 08-563
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Federal Communications Commission DA 08-563