*Pages 1--4 from Microsoft Word - 6011.doc* Federal Communications Commission DA 01- 85 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Telecorp Communicat ions, Inc. ) File Number EB- 00- SJ- 108 ) Arlington, VA ) NAL/ Acct. Number 200132680003 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: January 11, 2001 Released: January 16, 2001 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture, we find Telecorp Communications, Inc. (“ Telecorp”), Arlington, VA, apparently liable for a forfeiture in the amount of eighty thousand dollars ($ 80,000) for four violations of Section 17.51 of the Commission’s Rules which requires antenna structure lights to be exhibited. 1 We find that during the period of February 6, 2000 through November 30, 2000, Telecorp, a common carrier licensee, failed to comply with the requirement to properly light antenna structures and to notify the Federal Aviation Administration (“ FAA”) of antenna structure light outages on four occasions. II. BACKGROUND 2. The Commission’s antenna structure painting, lighting and registration requirements operate in concert with FAA regulations to ensure that antenna structures do not present hazards to air navigation. Generally, our rules require that antenna structures located close to airports or that are greater than 200 feet in height comply with painting and lighting specifications to ensure air safety. 3. Because of the substantial public safety issues involved, we require antenna structure owners to monitor lights daily or have automatic alarm systems installed to ensure lights function properly. Finally, antenna structure owners are required immediately to notify the FAA when major antenna structure lights are inoperative and can not be repaired within 30 minutes. The FAA then issues a Notice to Airmen (“ NOTAM”) for a period of 15 days advising aircraft that there is an antenna structure at a specific location with a temporary light outage. 4. Enforcement Bureau field agents routinely inspect antenna structures to determine compliance with antenna structure painting and lighting requirements and respond to complaints 1 47 C. F. R. §§ 17.51( a), and 17.51( b). 1 Federal Communications Commission DA 01- 85 2 of unlit towers. The FAA also routinely notifies Bureau field offices when owners fail to either report that lights have been repaired within 15 days or request that a NOTAM be extended. In the course of these routine inspections our field agents uncovered a number of violations of the Commission’s antenna structure lighting requirements by Telecorp Communications, Inc. These violations posed potential hazards to air navigation. 5. On February 6, 2000, an agent of the Bureau’s San Juan Office observed a Telecorp owned antenna structure at 7: 30 PM Atlantic Standard Time (“ AST”) located in Candelaria Ward, Toa Baja, PR. The structure did not have the top red obstruction light in operation as required by antenna structure registration number 1064593, FCC Form 854. The local San Juan FAA/ Flight Service Station (“ FSS”) advised a Bureau field agent that no NOTAM was in effect for this structure. 6. On September 11, 2000, an agent of the Bureau’s New Orleans Office observed a Telecorp tower located near Raceland, Louisiana. The structure did not have the medium intensity obstruction light in operation as required by antenna structure registration number 1206008, FCC Form 854. The local DeRidder FAA/ FSS advised a Bureau field agent that no NOTAM was in effect for this structure. 7. On October 21 and October 22, 2000, an agent of the San Juan Office observed a Telecorp tower near the town of Barceloneta, PR. The structure did not have the medium intensity obstruction light in operation as required by antenna structure registration number 1203643, FCC Form 854. The local San Juan FAA/ FSS advised an FCC agent that no NOTAM was in effect for this structure. In a telephone conversation with a Telecorp technician on October 31, 2000, the technician advised a San Juan field agent that he would contact the FAA to get a NOTAM issued and that repairs had been underway since October 30, 2000. For at least 10 days the antenna structure was unlit and no NOTAM was in effect. 8. On four days in November, 2000 a Bureau field agent observed a Telecorp antenna structure near the town of Juncos, PR that did not have the medium intensity obstruction lights in operation as required by antenna structure registration number 1208552, FCC Form 854. Specifically, the antenna structure was observed and found to be unlit on the following dates and times: November 2, at 9: 30 AM AST, November 3 at 1: 00 PM AST, November 6 at 9: 30 AM and again at 1: 30 PM AST, November 15 at 9: 30 AM and again at 12: 30 PM AST. The local San Juan FAA/ FSS and Telecorp representatives advised that a NOTAM was issued for this structure on November 21, 2000. III. DISCUSSION 9. Based on the evidence before us, we find that Telecorp Communications, Inc. apparently willfully and repeat edly 2 violated Section 17.51 of the Commission’s Rules 3 by its failure to comply 2 Section 312( f)( 1) of the Act, 47 U. S. C. § 312( f)( 1), which applies to violations for which forfeitures are assessed under Section 503( b) of the Act, provides that “[ t] he term ‘willful’, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act ….” See Southern California Broadcasting Co., 6 FCC Rcd 4387 2 Federal Communications Commission DA 01- 85 3 with the required lighting of antenna structures and by failing to notify FAA flight service stations of the outages. 10. Pursuant to The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines (“ Forfeiture Policy Statement”) 4 , the base forfeiture amount for lighting and marking violations is $10,000. Applying this base amount to each of Telecorp’s lighting violations would lead to a proposed forfeiture of $40,000. Telecorp violated the most serious of the Commission’s antenna structure rules. As the Commission stated in its ATC decision, 5 “[ u] nlit and unmarked antenna structures can pose a threat to air safety.” Accordingly, in light of the fact that Telecorp committed four such serious violations, we believe that, as in the Commission’s ATC decision, 6 an upward adjustment that doubles the forfeiture is appropriate. Applying the Forfeiture Policy Statement and statutory factors to the instant case, and based on the evidence before us, we find Telecorp Communications, Inc. apparently liable for forfeiture of $80,000 for four instances of failing to light an antenna structure. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED THAT, pursuant to Section 503( b) of the Act, 7 and Sections 0.111, 0.311 and 1.80 of the Commission's Rules, 8 Telecorp Communications, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of eighty thousand dollars ($ 80,000) for violating Section 17.51 of the Commission’s Rules. 9 12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Commission's Rules, 10 within thirty days of the release date of this NOTICE OF APPARENT LIABILITY, Telecorp Communications, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 13. Payment of the forfeiture may be made by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Forfeiture Collection Section, Finance Branch, Federal Communications Commission, P. O. Box 73482, Chicago, (1991). The term “repeated” means the commission or omission of an act more than once. 47 C. F. R. § 312( f)( 2). 3 47 C. F. R. §§ 17.51( a), and 17.51( b). 4 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999). 5 American Tower Corporation, FCC 01- 9, ¶ 10 (released: January 16, 2001). 6 Id., at ¶ 11. 7 47 U. S. C. § 503( b). 8 47 C. F. R. §§ 0.111, 0.311, 1.80. 9 47 C. F. R. §§ 17.51( a), and 17.51( b). 10 47 C. F. R. § 1.80. 3 Federal Communications Commission DA 01- 85 4 Illinois 60673- 7482. The payment should note the NAL/ Acct. Number referenced above. 14. The response, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12 th Street, S. W., Washington, D. C. 20554, ATTN: Enforcement Bureau – TPSD, NAL/ Acct. Number, and must include the NAL/ Acct. Number. 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. Requests for payment of the full amount of this Notice of Apparent Liability under an installment plan should be sent to: Chief, Credit and Debt Management Center, 445 12 th Street, S. W., Washington, D. C. 20554. 11 17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY shall be sent by Certified Mail Return Receipt Requested to Telecorp Communications, Inc., 1010 N. Glebe Road Suite 800, Arlington, VA 22201, Attn: Thomas H. Sullivan, Executive Vice President and General Counsel. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau 11 See 47 C. F. R. § 1.1914. 4