**Before the**

## Federal Communications Commission

**Washington, D.C. 20554**

**In the Matter of** )

> )

) File No. EB-00-DT-358

Detroit SMSA Limited Partnership )

Dallas, Texas ) NAL/Acct. No. 200132360001

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released: January 18, 2001**

By the District Director, Detroit Office, Enforcement Bureau:

# I. Introduction

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Detroit SMSA Limited Partnership has apparently violated
    Section 303(q) of the Communications Act of 1934 ("Act") as
    amended,[^1] and Section 17.23 of the Commission's Rules[^2] (the
    "Rules") for failure to have medium intensity lighting installed on
    their antenna tower. We conclude that Detroit SMSA Limited
    Partnership is apparently liable for a forfeiture in the amount of
    ten thousand dollars (\$10,000).

## II. Background

2.  The Commission's antenna structure painting, lighting and
    registration requirements operate in concert with the Federal
    Aviation Administration's ("FAA") regulations to insure that antenna
    structures do not present hazards to air navigation. Generally,
    antenna towers located close to airports or greater than 200 feet in
    height require painting, lighting, or both to insure air safety.

3.  Detroit SMSA Limited Partnership is the owner of a tower at 20175
    McKernan Road in Chelsea, Michigan (located at north latitude 42º
    17' 33", west longitude 084° 01' 55"), antenna structure
    registration number 1014707. The tower exceeds 200 feet in height,
    and must therefore be illuminated in accordance with Section 17.23
    of the Rules. Furthermore, FCC Form 854R, Antenna Structure
    Registration indicated that the lighting was to comply with FAA
    Chapters 4, 8, 13 and in accordance with FAA Circular Number
    70/7460-IH. This circular requires that the tower have medium
    intensity lighting during the daytime and red flashing lighting
    during the nighttime.

4.  On June 1, 2000, at approximately 12:55 p.m., an FCC agent from the
    Detroit Office conducted an inspection of this tower. The inspection
    was conducted as a result of a project to determine overall
    compliance of antenna towers with the FCC painting/lighting
    requirements and antenna tower registration. During this inspection,
    the antenna tower number posting was observed. It was also observed
    that no daytime lights were operating. On June 6, 2000 and June 8,
    2000, the tower was again observed during the daytime with no medium
    intensity lighting operating.

5.  On July 25, 2000, the District Director issued an Official Notice of
    Violation ("NOV") to Detroit SMSA Limited Partnership, 2000 West
    Ameritech Center Drive, Hoffman Estates, Illinois 60195-5000, for
    failure to have medium intensity lighting during the daytime. A
    response was received on August 21, 2000 from Carol L. Tacker, Vice
    President and General Counsel for SBC Wireless, Dallas, Texas. The
    response indicated that the tower did not previously have medium
    intensity lighting installed on it but it was installed on August
    14, 2000.

### III. Discussion

6.  Section 303(q) of the Act requires tower owners to maintain the
    painting and/or illumination of the tower as prescribed by the
    Commission. Section 17.23 of the Rules required the antenna
    structure to conform with the FAA's painting and lighting
    recommendations. FCC Form 854R, Antenna Structure Registration,
    required the antenna tower in Chelsea, Michigan to have dual
    lighting -- medium intensity lighting during the daytime and red
    flashing lighting during the nighttime.

7.  Based on the evidence before us, we find that Detroit SMSA Limited
    Partnership willfully[^3] and repeatedly[^4] violated Section 303(q)
    of the Act and Section 17.23 of the Commission's Rules by its
    failure to light the antenna tower with medium intensity lighting
    during the daytime. The Commission's *Forfeiture Policy Statement
    and Amendment of Section 1.80 of the Rules to Incorporate the
    Forfeiture Guidelines*, 12 FCC Rcd 17087, 17113 (1997), *recon.
    denied*, 15 FCC Rcd 303(1999) ("Policy Statement"), sets the base
    forfeiture amount at ten thousand dollars (\$10,000) for prescribed
    lighting. In assessing the monetary forfeiture amount, we must take
    into account the statutory factors set forth in Section 503(b)(2)(D)
    of the Act,[^5] which include 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. Applying the
    Policy Statement and the statutory factors to the instant case, we
    believe that a ten thousand dollar (\$10,000) monetary forfeiture is
    warranted because although the record reveals that Detroit SMSA
    Limited Partnership has an overall history of compliance and showed
    good faith surrounding the violations by the voluntary disclosure of
    information, the violation is egregious and repeated.

##### 

##### IV. ORDERING CLAUSES

8.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act and Sections 0.111, 0.311 and 1.80 of the Rules[^6], Detroit
    SMSA Limited Partnership is hereby NOTIFIED of this APPARENT
    LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
    (\$10,000) for willfully and repeatedly violating Section 303(q) of
    the Act and Section 17.23 of the Commission's Rules.

9.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
    Commission\'s Rules, within thirty days of the release date of this
    NOTICE OF APPARENT LIABILITY, Detroit SMSA Limited Partnership SHALL
    PAY the full amount of the proposed forfeiture or SHALL FILE a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

10. Payment of the forfeiture may be made by mailing a check or similar
    instrument, payable to the order of the Federal Communications
    Commission, to the Forfeiture Collection Section, Finance Branch,
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL/Acct. No. 200132360001.

11. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Technical and Public Safety
    Division, 445 12th Street, S.W., Washington, D.C. 20554 and MUST
    INCLUDE THE NAL/Acct. No. 200132360001.

12. The Commission 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. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

13. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief, Credit
    and Debt Management Center, 445 12th Street, S.W., Washington, D.C.
    20554.[^7]

14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail Return Receipt Requested
    to Detroit SMSA Limited Partnership, 17330 Preston Road, Suite 100A,
    Dallas, Texas 75252.

FEDERAL COMMUNICATIONS COMMISSION

James A. Bridgewater

District Director

Detroit Office

[^1]: 47 U.S.C. § 303(q).

[^2]: 47 C.F.R. § 17.23.

[^3]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to 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
    (1991).

[^4]: Section 312(f)(2), which also applies to Section 503(b), provides:
    \[t\]he 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.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. §§ 0.111, 0.311, and 1.80.

[^7]: See 47 C.F.R. § 1.1914.