####  Before the 

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-02-KC-806

Professional Communications Inc. )

Owner of Antenna Structure #1037282 located ) NAL/Acct. No. 200332560009

near Peculiar, Missouri )

) FRN 0006-1497-36

)

## 

## FORFEITURE ORDER

**Adopted: June 2, 2004 Released: June 4, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1\. In this *Forfeiture Order* ("*Order*"), we issue a monetary
forfeiture in the amount of ten thousand dollars (\$10,000), to
Professional Communications Inc. ("PCI"), owner of antenna structure
#1037282 near Peculiar, Missouri, for willful and repeated violation of
Section 17.51(a) of the Commission's Rules (\"Rules\").[^1] The noted
violation involves PCI's failure to exhibit all red obstruction lighting
on the antenna structure from sunset to sunrise from November 11-15,
2002 and on December 3, 2002.

2\. On January 24, 2003, the Commission\'s Kansas City, Missouri Field
Office ("Kansas City Office\") issued a *Notice of Apparent Liability
for Forfeiture* (\"*NAL*\") to PCI in the amount of ten thousand dollars
(\$10,000). [^2] PCI filed a response to the *NAL* on February 14, 2003.

**II.** **BACKGROUND**

3.  On November 11, 2002, a tenant on PCI's antenna structure notified
    PCI of a beacon lighting outage on the structure. TowerSentry, the
    company hired by PCI to monitor remotely its antenna structure and
    notify the Federal Aviation Administration ("FAA") of any outages,
    did not detect this outage. PCI contacted United Tower Inc. ("UTI")
    in Wichita, Kansas and contracted with it to conduct repairs on the
    structure.[^3] The FAA was not notified of the lighting outage on
    the structure consistent with Section 17.48(a) of the Rules.[^4]

4.  On December 3, 2002, a Commission agent from the Kansas City Office
    inspected PCI's antenna structure and observed that there was no
    lighting between the 1/2 overall height level and the top most
    flashing beacon and that a beacon at the 1/3 overall height level
    was lighted but not flashing. After being so informed by the agent,
    PCI notified the FAA of the outage. In a letter dated December 9,
    2002, PCI stated that it hired UTI to perform required quarterly
    tower inspections of the lighting system and components of the
    automatic alarm system on a going-forward basis.

5.  On January 24, 2003, the Kansas City Office issued the *NAL* for
    violation of Section 17.51(a) of the Rules. On February 14, 2003,
    PCI submitted a response to the *NAL*. In that response, PCI seeks a
    reduction or cancellation of the proposed forfeiture. PCI asserts
    that TowerSentry did not detect or notify the FAA of the outage on
    November 11 or December 3, 2002 due to unforeseen technical problems
    with the remote monitoring system. Moreover, PCI alleges the agent's
    observations on December 3, 2002 were inconsistent with UTI's
    subsequent inspection of the antenna structure.[^5] PCI notes that
    it promptly contacted the FAA of this outage. Accordingly, PCI
    asserts that the violations were not "willful."

### III. DISCUSSION

III. 6\. The proposed forfeiture amount in this case was assessed in
     accordance with Section 503(b) of the Communications Act of 1934,
     as amended ("Act"),[^6] Section 1.80 of the Rules,[^7] 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)
     ("*Forfeiture Policy Statement*"). In examining PCI'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
     other such matters as justice may require.[^8]

     7\. Section 17.51(a) of the Rules requires that all red obstruction
     lighting on antenna structures exceeding 200 feet be exhibited from
     sunset to sunrise.[^9] The Antenna Structure Registration for PCI's
     antenna structure requires that red obstruction lighting be
     exhibited at night. PCI does not dispute that one or more beacons
     were inoperable or functioning improperly on the antenna structure
     from November 11-15, 2002 and on December 3, 2002. PCI argues,
     however, that the lighting outage was the result of an unexpected
     and unforeseeable event, damage created by rodents, and therefore,
     was not "willful." We disagree. Section 17.47 of the Rules requires
     antenna structure owners registered with the Commission and subject
     to lighting specifications to make an observation of 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 such lights, to insure the proper
     functioning of the antenna structure\'s lights.[^10] Alternatively,
     antenna structure owners are required to "provide and properly
     maintain an automatic alarm system designed to detect any failure
     of such lights and to provide indication of such failure to the
     owner."[^11] It does not appear from the record before us that PCI
     made daily observations of its antenna structure in Peculiar, nor
     does PCI present any evidence that it had properly inspected or
     maintained the automatic alarm system prior to FCC notification, as
     required by Section 17.47.[^12] Moreover, PCI had or should have
     had actual notice of malfunctions in the automatic alarm system on
     November 11, 2002 when it received a telephone call from a tenant
     instead of notification from TowerSentry. There is no evidence in
     the record to demonstrate that PCI inquired about the cause of the
     alarm system failure at that time. PCI's actions subsequent to FCC
     notification of the violations to monitor the alarm system and
     prevent future rodent damage constitute corrective action to come
     into compliance with Commission Rules and do not nullify or
     mitigate any prior violations.[^13] Thus, we find that PCI's
     violation of Section 17.51(a) of the Rules was willful [^14] and
     repeated.[^15]

     8\. PCI asserts that the forfeiture should be reduced or cancelled
     because it notified the FAA of the outage on December 3, 2002
     within a few hours of being contacted by the agent. PCI's
     compliance with the requirement to notify the FAA of the
     extinguishment or improper functioning of lights on December 3,
     however, is expected and does not warrant a reduction of the
     forfeiture amount.

9\. We have examined PCI's response to the *NAL* pursuant to the
statutory factors above, and in conjunction with the *Forfeiture Policy
Statement*. As a result of our review, we conclude that PCI willfully
and repeatedly violated Section 17.51(a) of the Rules and find no basis
for cancellation or reduction of the forfeiture proposed for this
violation.[^16]

####  

#### IV. ORDERING CLAUSES

10\. 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,[^17]
Professional Communications Inc. **IS LIABLE FOR A MONETARY FORFEITURE**
in the amount of ­ten thousand dollars (\$10,000) for willfully and
repeatedly violating Section 17.51(a) of the Rules.

11\. 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.[^18] Payment shall be made 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 NAL/Acct. No. 200332560009, and FRN0006-1497-36. Requests
for full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.[^19]

12\. **IT IS FURTHER ORDERED** that, a copy of this *Order* shall be
sent by Certified Mail Return Receipt Requested and by First Class Mail
to Professional Communications Inc.'s President, D. Garry Munson, 8588
Katy Freeway, Suite 240, Houston, Texas 77024.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ 47 C.F.R. § 17.51(a).

[^2]: ^?^ *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332560009 (Enf. Bur., Kansas City Office, released January 24,
    2003).

[^3]: ^?^ UTI personnel repaired the outages by replacing all lamps on
    the structure on November 15, 2002.

[^4]: ^?^ *See* 47 C.F.R. § 17.48(a).

[^5]: ^?^ The agent noted that there was no lighting between the 1/2
    overall height level and the top-most flashing beacon and that the
    beacon at the 1/3 overall height level was lighted but not flashing.
    In addition, the agent observed that the side lighting at the 5/6
    overall height level was not lighted. According to PCI's response to
    the *NAL*, UTI observed that the 2/3 beacon light was inoperable,
    the 1/3 beacon was lighted but not flashing, and all side lighting
    was operational. The agent's and UTI's differing observations
    regarding the side lighting do not impact the decision reached
    herein. Antenna structure owners must notify the FAA of any
    malfunctioning top steady or flashing obstruction lights. There are
    no inconsistencies between the agent's and UTI's observations
    regarding these beacon lights.

[^6]: ^?^ 47 U.S.C. § 503(b).

[^7]: ^?^ 47 C.F.R. § 1.80.

[^8]: ^?^ 47 U.S.C. § 503(b)(2)(D).

[^9]: ^?^ 47 C.F.R. § 17.51(a).

[^10]: ^?^ 47 C.F.R. § 17.47.

[^11]: ^?^ *Id.*

[^12]: ^?^ *See id.*

[^13]: ^?^ *See Seawest Yacht Brokers*, 9 FCC Rcd 6099 (1994).

[^14]: ^?^ 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,'
    ... 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 ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd
    4387 (1991).

[^15]: ^?^ As provided by 47 U.S.C. § 312(f)(2), a continuous violation
    is "repeated" if it continues for more than one day. The *Conference
    Report* for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn. 56 (2003).

[^16]: ^?^ *See Florida Power and Light Company*, 17 FCC Rcd 7296
    (2002).

[^17]: ^?^ 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^18]: ^?^ 47 U.S.C. § 504(a).

[^19]: ^?^ *See* 47 C.F.R. § 1.1914.