**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Calvary Communications, Inc. ) File No. EB-02-PA-205

)

Owner of Antenna Structure \# 1025371 ) NAL/Acct. No. 200232400006

)

Pittsburgh, Pennsylvania ) FRN 0003-1842-56

## FORFEITURE ORDER 

**Adopted: September 2, 2003 Released: September 4, 2003**

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
    Calvary Communications, Inc. ("Calvary"), for repeated violation of
    Sections 17.4(g), 17.50 and 17.51(a) of the Commission's Rules
    ("Rules").[^1] The noted violations involve Calvary's failure to
    post the antenna structure registration ("ASR") number at the
    captioned antenna structure, to adequately paint the captioned
    antenna structure and to exhibit all red obstruction lighting
    between sunset and sunrise.

2.  On July 25, 2002, the Commission's Philadelphia, Pennsylvania,
    District Office ("Philadelphia Office") issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") to Calvary for a forfeiture in
    the amount of fifteen thousand dollars (\$15,000).[^2] Calvary filed
    its response to the *NAL* on August 23, 2002.

####  II. BACKGROUND

3.  Calvary owns an antenna structure, antenna structure registration
    ("ASR") number 1025371, located at 599 Bolton Street in Pittsburgh,
    Pennsylvania. The ASR for that antenna structure indicates that the
    height of the tower is approximately 125 meters above the ground and
    that painting, top beacon lighting and mid-point lighting are
    required. At 3:00 p.m. on May 7, 2002, an agent from the
    Philadelphia Office inspected antenna structure #1025371. During the
    inspection, the agent observed that the tower's ASR number was not
    posted near the base of the tower and that the tower's paint was
    faded, flaking and partially concealed by unpainted coaxial cables.
    At approximately 8:15 p.m. on both May 7 and 8, 2002, the agent
    returned to antenna structure #1025371 and remained there until
    after sunset. On both occasions, the agent observed that the tower's
    ASR number was not posted near the base of the tower; that the
    tower's paint was faded, flaking and partially concealed by
    unpainted coaxial cables; and that the tower's red obstruction
    lighting was extinguished at the top and mid levels of the antenna
    structure.

4.  On May 20, 2002, the Philadelphia Office issued a Notice of
    Violation ("NOV") to Calvary for the violations observed on May 7
    and 8, 2002. In its response, filed on June 19, 2002, Calvary stated
    that a lightning strike had caused the lighting outage at antenna
    structure #1025371. Calvary further stated that it had temporarily
    repaired the lighting outage and was in the process of making
    permanent repairs. Additionally, Calvary provided a copy of its
    contract with Edmiston Tower, Inc., entered into after the NOV, to
    paint antenna structure #1025371.

5.  On July 25, 2002, the Philadelphia Office issued a *NAL* for a
    forfeiture in the amount of \$15,000 to Calvary. The *NAL* alleged
    willful and repeated violation of Sections 17.4(g) (failure to post
    the ASR number at tower #1025371), 17.48(a) (failure to report known
    lighting outage to the Federal Aviation Administration at tower
    #1025371), 17.50 (failure to adequately paint antenna structure at
    tower #1025371) and 17.51(a) (failure to exhibit all red obstruction
    lighting between sunset and sunrise at tower #1025371) of the Rules.
    In its response, filed July 19, 2002, Calvary denies violating
    Section 17.48(a) of the Rules. Calvary admits violating Sections
    17.4(g), 17.50 and 17.51(a) but requests reduction of the proposed
    monetary forfeiture to \$5,000. Calvary explains that, before the
    lighting outage, its automatic alarm system malfunctioned and that,
    because it was making weekly visual checks of the lighting during
    the failure of the automatic alarm system, "the tower lighting could
    not have been out for a period of longer than seven days" prior to
    the FCC agent's inspection. Calvary also argues that it acted in
    "good faith" by quickly correcting the deficiencies,[^3] that it has
    "an exemplary record of compliance" and that payment of the full
    forfeiture amount would be "a difficult burden" for Calvary.

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III. **DISCUSSION**

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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"),[^4] Section 1.80 of the Rules,[^5] 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 Calvary'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.[^6]

7.  Section 17.4(g) of the Rules requires posting a tower's ASR number
    in a conspicuous place near the base of the antenna structure.
    Section 17.50 provides that antenna structures requiring painting
    shall be cleaned or repainted as often as necessary to maintain good
    visibility. Section 17.51(a) requires that all red obstruction
    lighting be exhibited from sunset to sunrise. On the basis of the
    FCC agent's observations during his investigation and Calvary's
    response, we find that Calvary repeatedly violated Sections 17.4(g),
    17.50 and 17.51(a) of the Rules. [^7]

8.  Section 503(b) of the Act gives the Commission authority to assess a
    forfeiture penalty against any person if the Commission determines
    that the person has "willfully or repeatedly" failed to comply with
    the provisions of the Act or with any rule, regulation or order
    issued by the Commission. In light of our determination that
    Calvary's violations were repeated, it is not necessary to determine
    whether they were also willful. [^8]

9.  Section 17.48(a) of the Rules requires tower owners to immediately
    report known lighting outages to the Federal Aviation
    Administration. Calvary asserts that it did not know of the outage
    observed on May 7 and 8, 2002, until it was notified by the
    Commission. In light of this assertion, we find that Calvary did not
    violate Section 17.48(a) of the Rules. We, therefore, will not
    impose a forfeiture amount for violation of Section 17.48(a).

10. Calvary's correction of its violations of Sections 17.4(g), 17.50
    and 17.51(a) of the Rules does not warrant a reduction of the
    proposed forfeiture on the basis of "good faith." As the Commission
    stated in *Seawest Yacht Brokers*, 9 FCC Rcd 6099, 6099 (1994),
    "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." [^9] Calvary's actions before it
    was notified of the outage also do not warrant any "good faith"
    reduction. Calvary knew its automatic alarm system was
    malfunctioning but did not arrange for repairs until after the
    outage. Section 17.47(a)(1) of the Rules[^10] required *daily*
    visual checks of the tower lighting[^11] during the failure of the
    automatic alarm system. Calvary, however, made only weekly checks.

11. Calvary's assertion that payment of the proposed forfeiture amount
    would be a difficult financial burden also does not justify a
    reduction in the forfeiture amount. As explicitly stated in the
    *NAL*, we 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. We cannot consider Calvary's
    inability to pay claim because Calvary did not provide any financial
    documentation whatsoever. However, we do find that Calvary has a
    history of overall compliance and, accordingly, reduce the
    forfeiture amount to \$10,000.

12. We have examined Calvary'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
    Calvary repeatedly violated Sections 17.4(g), 17.50 and 17.51(a) of
    the Rules and that the appropriate forfeiture amount is \$10,000.

    **IV. ORDERING CLAUSES**

13. 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,[^12]
    Calvary **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of ten
    thousand dollars (\$10,000) for failure to post the ASR number,
    light and adequately paint the captioned antenna structure, in
    repeated violation of Sections 17.4(g), 17.50 and 17.51(a) of the
    Rules.

14. 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.[^13] Payment may 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 reference NAL/Acct. No. 200232400006 and FRN
    0003-1842-56. 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.[^14]

15. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail Return Receipt Requested to
    Michael F. Morrone, Esq., Keller and Heckman LLP, 1001 G Street,
    N.W., Suite 500 West, Washington, D.C. 20001.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 17.4(g), 17.50 and 17.51(a).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200232400006 (Enf. Bur., Philadelphia Office, released July 25,
    2002).

[^3]: Calvary's response to the *NAL* indicates that Calvary corrected
    the violations of Sections 17.4(g), 17.50 and 17.51(a) of the Rules
    but does not indicate the exact dates of the corrections.

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: 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).

[^8]: *Koke, Inc.*, 23 FCC 2d 191 (1970).

[^9]: *See also Callais Cablevision, Inc.,* 17 FCC Rcd 22626, 22629
    (2002); *Radio Station KGVL, Inc.,* 42 FCC 2d 258, 259 (1973); and
    *Executive Broadcasting Corp*., 3 FCC 2d 699, 700 (1966).

[^10]: 47 C.F.R. § 17.47(a)(1).

[^11]: *See, eg.,Crown Communications, Inc.*, 15 FCC Rcd 21937, 21939
    (Enf. Bur. 2000).

[^12]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^13]: 47 U.S.C. § 504(a).

[^14]: *See* 47 C.F.R. § 1.1914.