**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Business Cell Systems ) File Number EB-02-AT-415

Owner of Antenna Structure #1216842 near Tellico ) NAL/Acct. No.
200332480015

Plains, Tennessee ) FRN: 0005-8658-60

Athens, Tennessee )

## 

## FORFEITURE ORDER 

**Adopted: July 23, 2004 Released: July 27, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order ("Order")*, we issue a monetary forfeiture
    in the amount of eight thousand dollars (\$8,000) to Business Cell
    Systems ("Business Cell"), owner of antenna structure #1216842, for
    willful and repeated violation of Section 17.51(b) of the
    Commission's Rules ("Rules").[^1] The noted violation involves
    failure to continuously exhibit all medium intensity obstruction
    lighting during daylight hours.

2.  On January 23, 2003, the Commission's Atlanta Field Office ("Atlanta
    Office") released a *Notice of Apparent Liability for Forfeiture
    ("NAL")* to Business Cell in the amount of ten thousand dollars
    (\$10,000).[^2] Business Cell filed a response on February 4, 2003.

**II. BACKGROUND**

3.  On November 19 and 21, 2002, in response to a complaint of an unlit
    tower, an agent of the Atlanta Office inspected the antenna
    structure associated with FCC antenna structure registration ("ASR")
    #1216842 located near Tellico Plains, Tennessee. At the times of
    inspection, 9:30 a.m. on November 19, 2002, and 2:30 p.m. on
    November 21, 2002, the unpainted structure had no white obstruction
    lighting in operation.

4.  On November 21, 2002, an agent of the Atlanta Office determined from
    the Commission ASR database that antenna structure #1216842 was
    registered to Business Cell and that the registration included
    requirements to maintain medium intensity obstruction lighting
    during daytime and nighttime hours. The FCC agent telephoned the
    nearest Flight Service Station of the Federal Aviation
    Administration ("FAA"), which verified that it had received no
    report of a light outage for this antenna structure.

5\. On December 4, 2002, the agent of the Atlanta Office contacted
Business Cell via telephone. Business Cell's owner indicated that he was
unaware of the outage. Upon notification by the FCC, the structure was
inspected on December 4 by Business Cell to confirm the lighting outage.
Business Cell states that its inspection revealed that the control board
in the strobe control pack and the alarm relay had been blown apart,
which prevented the strobes from working and also prevented an alarm
from being sent to notify the alarm center of the outage.

6\. In its response to the *NAL,* Business Cell does not challenge the
finding of the *NAL* and admits that no medium intensity obstruction
lighting was operating at the time of inspection. Business Cell appears
to deny that it willfully violated Section 17.51(b) of the Rules,
claiming the lighting outage was caused by an "act of God" outside its
control. Business Cell also states that it took a number of
post-Commission inspection repair actions and also seeks forbearance by
generally requesting that the Commission give it "any help you can give
on this matter."

7\. Further, Business Cell describes in detail the alarm system it uses
to monitor for light outages. Business Cell indicates that its system
monitors the lights and sends an alarm using cell radio technology.
Additionally, Business Cell states that if an alarm system failed to
check in once every 24 hours it would be notified.

**III**. **DISCUSSION**

8\. The proposed forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of 1934, as
amended ("Act"),[^3] Section 1.80 of the Rules,[^4] and *The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines.*[^5] In examining
Business Cell's response, 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.[^6]

1.  Section 17.51(b) of the Rules requires that all medium intensity
    obstruction lighting be exhibited continuously unless otherwise
    specified. Business Cell's antenna structure #1216842 is required to
    exhibit medium intensity obstruction lighting during daylight hours
    and at night. At the times of inspection on November 19 and 21,
    2002, no medium intensity obstruction lighting was observed
    operating on Business Cell's antenna structure #1216842. Business
    Cell had not notified the FAA of the light outage.[^7] Additionally,
    the owner of Business Cell states that he was unaware that the
    strobes were not operating until December 4, 2002, when the FCC
    agent contacted him.

10\. The owner of Business Cell does not dispute that he did not know
that the medium intensity obstruction lights were not operational from
at least November 19, 2002, until December 4, 2002 when the FCC agent
notified him. Business Cell argues, however, that the lighting outage
was the result of a "lightning strike that was unbelievable" and implies
that an "act of God" should be a mitigating fact warranting reduction or
rescission of the forfeiture and that the violation was not willful.

11\. Section 17.47 of the Rules[^8] requires that the owner of an
antenna structure observe the antenna structure's lights at least once
every 24 hours, either visually or by observing an automatic properly
maintained indicator designed to register any failure of the lights.
Alternatively, the owner may use an automatic alarm system that is
properly maintained and designed to detect any failure of the lights and
to provide indication of such failure to the owner. Business Cell states
that it used an automatic alarm system to monitor the lighting on its
towers and that the system is designed to use a cellular radio system to
relay a message to it if the lights failed. Additionally, Business Cell
states that the system would notify it if the unit did not check in with
the cell system within 24 hours. Business Cell does not explain,
however, why in this instance it was not notified that the alarm system
had failed for more than two weeks after the lights were out. In fact,
the President of Business Cell states that the first indication he
received that the lights were not operational was when the FCC agent
contacted him. Nor does Business Cell provide any evidence that it
properly maintained its automatic alarm system since installing it.
Accordingly, it does not appear, based on the record before us, that
Business Cell had properly inspected or maintained the automatic alarm
system prior to the FCC notification as required by Section 17.47. Thus,
even assuming that the lightning strike caused the outage, we conclude
that Business Cell willfully violated the rule.[^9]

12\. Business Cell states that the tower lighting outage was quickly
corrected once it was informed of it because of the Commission
inspection. Business Cell's remedial actions to correct the problem
subsequent to notification of the violation do not mitigate the
violation.[^10] It is well established that "corrective action taken to
come into compliance with Commission rules or policy is expected, and
does not nullify or mitigate any prior forfeitures or violations."[^11]

13\. Business Cell also states that this is the first time its system
has not been in compliance with the Commission's Rules. To the extent
this constitutes a claim for overall compliance, our review of the
Commission's records confirms that Business Cell has not previously been
found to have violated the Rules.

14\. Based on the evidence before us, we find Business Cell
willfully[^12] and repeatedly[^13] violated Section 17.51(b) of the
Rules by failing to continuously exhibit medium intensity obstruction
lighting during daylight hours. Considering the entire record and the
factors listed above, we find that reduction of the proposed forfeiture
is warranted because of the compliance record of Business Cell with the
Commission's Rules. Accordingly, the forfeiture amount is reduced from
ten thousand dollars (\$10,000) to eight thousand dollars (\$8,000).

####  IV. ORDERING CLAUSES

1.  Accordingly, **IT IS ORDERED THAT**, pursuant to Section 503(b) of
    the Act[^14], and Sections 0.111, 0.311 and 1.80(f)(4) of the
    Commission\'s Rules[^15], Business Cell**, IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of eight thousand dollars (\$8,000) for
    its willful and repeated violation of Section 17.51(b) of the Rules.

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5.  Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Commission's Rules[^16] 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.[^17]
    Payment may be made by credit card through the Commission\'s Credit
    and Debt Management Center at (202) 418-1995 or by mailing a check
    or similar instrument, payable to the order of the Federal
    Communications Commission, to the Federal Communications Commission,
    P.O. Box 73482, Chicago, Illinois 60673-7482. The payment should
    note the NAL/Acct. No. 200332480015, and FRN: 0005-8658-60
    referenced above. Requests for full payment under an installment
    plan should be sent to: Chief, Credit and Debt Management Center,
    445 12th Street, S.W., Washington, D.C. 20554.[^18]

6.  **IT IS FURTHER ORDERED** that a copy of this Forfeiture Order shall
    be sent by Certified Mail, Return Receipt Requested, and First Class
    Mail to Business Cell Systems, P.O. Box 1374, Athens, TN 37371.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 17.51(b).

[^2]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200332480015 (Enf. Bur., Atlanta Office, released January 23, 2003).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: The owner of any registered antenna structure must report
    immediately to the nearest flight service station of the FAA any
    observed or otherwise known extinguishment or improper functioning
    of any flashing obstruction light not corrected within 30 minutes.
    *See* 47 C.F.R. § 17.48(a).

[^8]: 47 C.F.R. § 17.47.

[^9]: *See Professional Communications, Inc.,* DA 04-1600, EB-02-KC-806
    (Enf. Bur. 2004).

[^10]: *See Radio Station KGVL, Inc*., 42 FCC 2d 258, 259 (1973); *AT&T
    Wireless Services, Inc*., 17 FCC Rcd 21866,

    21871 (2002).

[^11]: *Seawest Yacht Brokers*, 9 FCC Rcd 6099, 6099 (1994).

[^12]: 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
    4387-88 (1991).

[^13]: The 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." 47 U.S.C. § 312(f)(2).

[^14]: 47 U.S.C. § 503(b).

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

[^16]: 47 C.F.R. § 1.80.

[^17]: 47 U.S.C. § 504(a).

[^18]: *See* 47 C.F.R. § 1.1914.