**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. EB-02-PL-157        |
|                                  | *) |                              |
| Northern Electric Cooperative    | ** | NAL/Acct. No. 200332420001   |
|                                  |    |                              |
| Antenna Structure at             | *  | FRN: 0002-4325-40            |
| Approximately                    | *) |                              |
|                                  | ** |                              |
| N 45° 27' 41", W 98° 20' 15",    |    |                              |
|                                  | *  |                              |
| Bath, South Dakota               | *) |                              |
|                                  | ** |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
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+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: October 13, 2004 Released: October 15, 2004**

By the Assistant Chief, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of three thousand dollars (\$3,000) to
    Northern Electric Cooperative ("Northern"), the owner of an antenna
    structure located at approximately N 45° 27' 41", W 98° 20' 15", in
    Bath, South Dakota, for willful and repeated violation of Section
    17.4(a) of the Commission's Rules ("Rules").[^1] The noted violation
    involves Northern's failure to register its antenna structure.

2.  On April 18, 2003, the Commission's St. Paul District Office ("St.
    Paul Office") issued a *Notice of Apparent Liability for Forfeiture*
    ("*NAL*") to Northern for a forfeiture in the amount of three
    thousand dollars (\$3,000).[^2] Northern filed a response to the
    *NAL* on May 1, 2003.

# BACKGROUND

3.  On December 3 and 4, 2002, an agent from the St. Paul Office
    inspected a painted and lighted antenna structure located at the
    rear of Northern's building on Route 12, Bath, South Dakota. The
    agent measured the coordinates of the structure using a Global
    Positioning System (GPS) receiver. The agent found no Commission
    records that the antenna structure had been registered.

4.  On January 24, 2003, the St. Paul Office issued a Letter of Inquiry
    (*LOI*) to Northern, asking, *inter alia*, for information
    pertaining to the apparently unregistered tower at the rear of
    Northern's building. Northern responded on March 13, 2003, stating
    that the antenna structure had a height of 192' above ground level,
    but that in October 2002 an antenna was added to the structure that
    increased its height to 211' above ground level.

5.  On April 18, 2003, the St. Paul Office issued an *NAL* to Northern
    for three thousand dollars (\$3,000) for willful and repeated
    violation of Section 17.4(a) of the Commission's Rules ("Rules").
    Northern responded to the *NAL* on May 1, 2003.

6.  Northern states that it believed that the antenna structure was
    exempt from the Commission's registration requirement because the
    structure itself was less than 200 feet in height. Northern permits
    Station WB0TPF[^3] to use the antenna structure, and states that it
    was Station WB0TPF that added the antenna that increased the height
    of the structure to 211 feet. Northern asserts that after the St.
    Paul Office agent's inspection, it became aware that the antenna
    structure required registration with the Federal Aviation
    Administration ("FAA") and the Commission. Northern indicates that
    air safety was not viewed as a problem with regard to the 211 foot
    tower because of the other large guyed towers in the area.

7.  Northern argues that it expected Station WB0TPF to notify Northern
    if the height of the antenna structure necessitated registration.
    Northern contends that the Commission erred in identifying its
    actions as willful and repeated, and that the fine was unjustly
    assessed.[^4] Northern, apparently believing that the proposed
    forfeiture would be owed by Station WB0TPF, argues that Station
    WB0TPF should not be assessed a fine for putting up an antenna that
    benefits the community, and asks that the forfeiture be cancelled.
    Northern states that it will register the tower.

# discussion

8.  The *NAL* assessed the proposed forfeiture amount in this case in
    accordance with Section 503(b) of the Act,[^5] Section 1.80 of the
    Rules,[^6] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd
    303 (1999) ("*Policy Statement*"). In examining Northern's response
    to the *NAL*, Section 503(b) of the Act requires that the Commission
    take into account the nature, circumstances, extent and gravity of
    the violation and, with respect to the violator, the degree of
    culpability, any history of prior offenses, ability to pay, and such
    other matters as justice may require.[^7]

9.  Section 503 of the Communications Act of 1934, as amended
    ("Act"),[^8] authorizes the Commission to impose forfeitures for
    "willful" and/or "repeated" violations of applicable statutory or
    regulatory requirements. Specifically, Sections 503(b)(1)(A) and (B)
    of the Act provide that any party who "willfully" and/or
    "repeatedly" violates any term or condition of a Commission issued
    license, permit, certification, or other authorization, or any
    provision of the Act, or any of the Commission's Rules, shall be
    liable for a forfeiture penalty.

10. The Act defines "willful" as "the conscious and deliberate
    commission or omission of an act, irrespective of any intent to
    violate" the law. Consistent with Congressional intent, the
    Commission has interpreted "willful" in forfeiture proceedings to
    mean actions or omissions that are committed knowingly (*i.e,* that
    a violator intended to commit the act or omission that was found to
    have violated a statutory and/or regulatory provision).[^9]

11. The Act defines "repeated" as "the commission or omission of such
    act more than once or, if such commission or omission is continuous,
    for more than one day."[^10]

12. Section 17.4(a) of the Rules states that the owner of an antenna
    structure that requires notice of proposed construction to the
    Federal Aviation Administration ("FAA"), must also register the
    structure with the Commission.[^11] Northern concedes that it is the
    owner of this antenna structure. Northern's antenna structure height
    exceeded 200 feet after Northern's permittee added an antenna.
    Accordingly, Northern was required to give notice to the FAA, and
    register the structure with the Commission. We note that in its
    response, Northern states that it was aware that the addition of an
    antenna made the antenna structure taller than 200 feet.

13. The Commission holds the owner of an antenna structure primarily
    responsible for awareness of and compliance with its Rules.[^12] In
    this case, it appears that Northern erroneously assumed that its
    permittee was responsible for any tower registration matters. In
    fact, Northern, as the owner of the tower, is the responsible party.
    It is well established that mistake or inadvertence resulting in a
    rule violation does not exonerate the tower owner and the violation
    is considered to be willful.[^13] Accordingly, we conclude that it
    was Northern's responsibility to register the antenna structure when
    its permittee added an antenna that increased the structure's height
    to exceed 200 feet. Northern's failure to register the tower is
    significant; the Commission has repeatedly found that registration
    of towers is of utmost importance in the interests of public
    safety.[^14]

14. Section 303(q) of the Act requires the tower owner to maintain
    painting and lighting of the tower as the Commission prescribes. The
    Commission's requirement of tower registration is integral to its
    oversight of all tower owners' compliance with painting and lighting
    specifications. Northern concedes that its antenna structure was
    unregistered from the time that its permittee added an antenna.
    Commission records indicate that to date, and notwithstanding its
    promise to do so, Northern still has not registered the 211 foot
    antenna structure. In view of this ongoing failure on Northern's
    part, we require that it provide a report to the Enforcement Bureau
    showing that its structure located at approximately N 45° 27' 41", W
    98° 20' 15", is in compliance with the Commission's Rules and
    further showing its plan for maintaining future compliance. This
    report shall be submitted within 30 days of the release date of this
    *Order*.

15. We have examined Northern's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that
    Northern willfully and repeatedly violated Section 17.4 of the
    Rules, and we find no basis for rescinding or reducing the \$3,000
    forfeiture for this violation.

# ordering clauses

16. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^15]
    Northern Electric Cooperative, owner of the antenna structure
    located at approximately N 45° 27' 41", W 98° 20' 15", in Bath,
    South Dakota, **IS LIABLE FOR A MONETARY FORFEITURE** in the amount
    of three thousand dollars (\$3,000) for its violation of Section
    17.4(a) of the Rules.

17. **IT IS FURTHER ORDERED** that, pursuant to Section 303(q) of the
    Act, Northern must submit the reports described in paragraph 14 no
    later than thirty (30) days from the release date of this
    *Forfeiture Order* to: Federal Communications Commission,
    Enforcement Bureau, Spectrum Enforcement Division, 445 12^th^
    Street, S.W., Washington, D.C. 20554, Attention: Susan Magnotti.

18. 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/Acct. No. and FRN No.
    referenced above. Payment by check or money order may be mailed to
    Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. Payment by overnight mail may be sent to Bank One/LB
    73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
    Payment by wire transfer may be made to ABA Number 071000013,
    receiving bank Bank One, and account number 1165259.

19. IT **IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to
    Northern Electric Cooperative, West Highway 12, Bath, South Dakota
    57427.

FEDERAL COMMUNICATIONS COMMISSION

George R. Dillon

Assistant Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 17.4(a).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332420001 (released April 18, 2003).

[^3]: Station WB0TPF is the Ham Radio Club that uses the antenna
    structure for the SKYWARN weather storm warning system.

[^4]: Northern Response at 2.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 47 U.S.C. § 503.

[^9]: *See Southern California Broadcasting Co.,* 6 FCC Rcd 4387, 4388 ¶
    5 (1991) *recon. denied,* 7 FCC Rcd 3454 (1992)*.*

[^10]: *Id*.

[^11]: 47 C.F.R. § 17.7(a).

[^12]: *See, e.g. Eure Family Limited Partnership*, 17 FCC Rcd 21861,
    21863-64 ¶¶ 6-7 (2002).

[^13]: *Southern California Broadcasting Company*, 6 FCC Rcd. 4387
    (1991)(citing *Vernon Broadcasting, Inc*., 60 RR2d 1275, 1277
    (1986); *Fay Neel Eggleston*, 19 FCC2d 829 (1969)). *See also* *PBJ
    Communications of Virginia, Inc*., 7 FCC Rcd 2088 (1992); *Standard
    Communications Corp.*, 1 FCC Rcd 358 (1986); *Triad Broadcasting
    Co., Inc*., 96 FCC 2d 1235, 1242 (1984).

[^14]: *AT&T Wireless Services, Inc*. 16 FCC Rcd. 814, 815 (Enf. Bur.
    2001), 17 FCC Rcd. 7891, 7896 (2002); *SpectraSite Communications,
    Inc*. 17 FCC Rcd. 7884, 7888 (2002).

[^15]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).