Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Number EB-06-BF-024     |
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| Forever of PA, Inc.              | ) | NAL/Acct. No. 200732280002   |
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| Antenna Structure Registrant     | * | FRN 0006161855               |
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| ASR \# 1027115                   | * |                              |
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| Hollidaysburg, PA                | ) |                              |
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## FORFEITURE ORDER

**Adopted:** February 20, 2008 **Released:** February 21, 2008

By the Acting Regional Director, Northeast Region, Enforcement Bureau:

I.  **INTRODUCTION**

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1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of ten thousand dollars (\$10,000) to
    Forever of PA, Inc. ("Forever") for willfully violating Sections
    17.47, 17.48, and 17.51(a) of the Commission\'s Rules
    (\"Rules\")[^1] by failing to comply with the antenna structure
    lighting, monitoring, and reporting requirements specified for
    antenna structure \# 1027115.

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II. **BACKGROUND**

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2.  On February 22, 2007, the Commission's Buffalo Field Office issued a
    *Notice of Apparent Liability for Forfeiture* ("*NAL*") in the
    amount of \$10,000 to Forever for failure to properly maintain the
    top red beacon on antenna structure \# 1027115, for failure to
    report to the Federal Aviation Administration ("FAA") the outage of
    the top red beacon, and for failure to ensure that a proper antenna
    structure monitoring system was installed.[^2] The findings in the
    *NAL* were based, in part, on the chief operator's statement to the
    agent during the inspection that he was aware that Forever's
    monitoring system was not capable of detecting single light outages.
    Forever submitted a response to the *NAL* on March 13, 2007.

3.  Forever does not dispute that the top beacon light on its tower was
    out or that it failed to report the outage to the FAA, but requests
    a cancellation or reduction of the forfeiture on several grounds.
    First, Forever points to the corrective actions it took within days
    after the FCC agent's inspection. Second, Forever claims that its
    actions cannot be deemed willful because, contrary to the findings
    in the *NAL*, Forever was not aware of the monitoring system's
    deficiencies until advised of them by the FCC agent during the
    inspection and Forever acquired the antenna structure monitoring
    system from the prior tower owner. [^3]

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III. **DISCUSSION**

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4.  We decline to cancel or reduce the proposed forfeiture based on the
    actions Forever took after the agent's inspection. The Commission
    consistently has held that corrective action taken to come into
    compliance with the Rules is expected, and does not nullify or
    mitigate any prior forfeitures or violations.[^4]

5.  We likewise decline to reduce or cancel the proposed forfeiture
    based on Forever's claim that the violation was not "willful"
    because Forever was not aware of the monitoring system's
    deficiencies until advised by the FCC agent at the time of
    inspection. In support of its claim, Forever submits a declaration
    from its chief operator, who now alleges that he never told the
    agent that he knew the antenna structure's monitoring system was
    unable to detect single light outages. According to the FCC agent's
    contemporaneous handwritten notes, however, the chief operator
    stated, prior to the inspection of the monitoring system's
    circuitry, that the system needed a modification in order to detect
    single light outages. We find no reason to rely here on the chief
    operator's declaration rather than the contemporaneous handwritten
    notes of our agent, who had no motive to misrepresent what the chief
    operator stated during the inspection.[^5] Because we conclude that
    it is appropriate to rely on the statement made by the chief
    operator at the time of the inspection, we find that Forever was
    aware of the monitoring system's deficiencies and therefore the
    violation was willful.

6.  We note that, even if we were to accept Forever's claim that it was
    not previously aware of the monitoring system's deficiencies, we
    still would find that Forever's violation was willful. Section
    312(f)(1) of the Act,[^6] 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 or any rule or
    regulation of the Commission authorized by this Act....\"[^7]
    "Willful" does not require a finding that there was an intent to
    engage in a violation.[^8] Here, Forever knowingly operated the
    monitoring system. Moreover, if Forever had adequately complied with
    Section 17.47(b), which requires tower owners to "inspect at
    intervals not to exceed 3 months all automatic or mechanical control
    devices, indicators, and alarm systems associated with the antenna
    structure lighting. . . ," Forever would have discovered that its
    monitoring system was not capable of detecting single light outages.
    In this regard, it was Forever's "omission" that resulted in its
    willful operation of a monitoring system that could not detect
    single light outages, in violation of Section 17.47 of the
    Commission's Rules.

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IV. **ORDERING CLAUSES**

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7.  **ACCORDINGLY,** **IT IS ORDERED** that, pursuant to Section 503(b)
    of the Communications Act of 1934, as amended ("Act"),[^9] and
    Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's Rules,[^10]
    Forever of PA, Inc. **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of \$10,000 for willfully violating Sections 17.47, 17.48,
    and 17.51(a) of the Rules.

8.  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\[**s**\] 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.

9.  **IT IS FURTHER ORDERED** that a copy of this *Forfeiture Order*
    shall be sent by First Class Mail and Certified Mail Return Receipt
    Requested to Forever of PA, Inc. at its address of record.

**FEDERAL COMMUNICATIONS COMMISSION**

G. Michael Moffitt

Acting Regional Director, Northeast Region

Enforcement Bureau

[^1]: 47 C.F.R. §§ 17.47, 17.48, and 17.51(a).

[^2]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200732280002 (Enf. Bur., Buffalo Office, released February 22, 2007)
    ("*NAL*").

[^3]: Forever notes in its response to the *NAL* that when it purchased
    the tower from Mac Beth Communications, Inc. ("Mac Beth") in 2000,
    the purchase agreement stated that the tower was in full compliance
    with the Commission's Rules. Any representations made to Forever by
    Mac Beth are irrelevant here. Forever had an obligation as the new
    tower owner to independently ensure that the monitoring system
    functioned properly. For similar reasons, we note that, although the
    *NAL* assumes that Forever installed the monitoring system, the
    findings in the *NAL* are not dependent on whether Mac Beth or
    Forever initially installed the monitoring system. As the current
    owner, Forever is responsible for the proper functioning of the
    monitoring system.

[^4]: *See Seawest Yacht Brokers*, Forfeiture Order, 9 FCC Rcd 6099
    (1994); *see also AT&T Wireless Services, Inc.*, 17 FCC Rcd 21871-76
    (2002).

[^5]: We note that the chief operator erroneously states in his
    declaration that "it was determined that the Tower's lighting
    monitor interface cable was incorrectly wired to the Station's
    remote control." The problem with the monitoring system was not that
    it was improperly wired, but rather that it needed an interface
    device so that it could detect single light outages. Indeed, this is
    confirmed in Forever's response to the *NAL*, in which it states
    that "\[o\]n February 24, 2006, an interface panel for the Burk
    remote was ordered. This panel will expand the Burk Technology
    remote control so it can individually break out the tower light
    beacon indicators." We also are not persuaded by the chief
    operator's statement in the declaration that "it \[the tower\] was
    not showing a failure as it has in the past." The tower's monitoring
    system was capable of showing an overall tower light outage, so it
    is reasonable to assume that the monitoring system would have worked
    in the past to signal a complete light outage on the tower. Forever
    did not submit any evidence that the monitoring system had ever
    signaled a single light outage.

[^6]: 47 U.S.C. § 312(f)(1).

[^7]: See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).

[^8]: *Id*., citing *MCI Telecommunications Group*, 3 FCC Rcd 509, 514
    n.22 (1988); *Hale Broadcasting Corporation*, 79 FCC Rcd 169, 171
    (1980).

[^9]: 47 U.S.C. § 503(b).

[^10]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).