**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

South Central Communications Corp. ) File No. EB-02-AT-232

) NAL/Acct. No. 200232480008

Owner of Antenna Structure Registration ) FRN 0002-9009-26

No. 1043695 at Sevierville, Tennessee )

)

Knoxville, Tennessee )

## FORFEITURE ORDER 

**Adopted: January 17, 2003 Released: January 22, 2003**

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
    South Central Communications Corp. ("SCCC"), owner of an antenna
    structure with Antenna Structure Registration ("ASR") number 1043695
    in Sevierville, Tennessee, for willful and repeated violations of
    Sections 17.47(a)(2), 17.48(a), and 17.51 of the Commission's
    Rules.[^1] The noted violations involve SCCC's failure to maintain
    an automatic alarm system designed to detect any failure of its
    antenna structure lights and provide notification of such failure to
    the structure owner, failure to notify the Federal Aviation
    Administration ("FAA") immediately of an obstruction lighting outage
    on its antenna structure, and failure to exhibit the required
    obstruction lighting on its antenna structure.

2.  On June 25, 2002, the Commission's Atlanta, Georgia Field Office
    ("Atlanta Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to SCCC for a forfeiture in the amount of ten
    thousand dollars (\$10,000).[^2] SCCC filed a response to the *NAL*
    on July 19, 2002.

####  II. BACKGROUND

3.  On May 15, 2002, an agent from the Atlanta Office inspected SCCC's
    antenna structure, ASR number 1043695, in Sevierville, Tennessee,
    during daytime hours and after local sunset. The agent observed that
    the structure was unpainted and that there was no white obstruction
    lighting or red obstruction lighting in operation on the structure.
    The ASR for the structure indicated that the structure was required
    to be painted in aviation orange and white and lighted with red
    obstruction lighting between sunset and sunrise.

4.  On May 16, 2002, the agent again inspected the structure during the
    daytime and observed that there was no white obstruction lighting in
    operation on the structure. The agent also contacted the local FAA
    Flight Service Station and determined that there was no Notice to
    Airmen ("NOTAM")[^3] in effect for this structure.

5.  On May 21, 2002, the agent contacted SCCC's chief engineer, Bob
    Glenn, and advised him that the lighting on the structure was not
    functioning and that the structure was not painted and lighted as
    specified in the ASR. Mr. Glenn stated that the structure had been
    purchased unpainted from a former owner, and that SCCC had installed
    medium intensity obstruction lighting on the structure to operate 24
    hours per day. Mr. Glenn also stated that the structure's lighting
    is monitored by an automatic alarm system, which can detect a power
    failure to the lights, but cannot detect a light bulb failure. Mr.
    Glenn stated that SCCC was therefore unaware that the lighting on
    the structure had failed and had not contacted the FAA to report the
    lighting outage.

6.  On June 25, 2002, the Atlanta Office issued an *NAL* to SCCC for a
    forfeiture in the amount of \$10,000 for failure to maintain an
    automatic alarm system designed to detect any failure of its antenna
    structure lighting and provide notification of such failure to the
    owner in willful and repeated violation of Section 17.47(a)(2) of
    the Rules, failure to notify the FAA immediately of an obstruction
    lighting outage on its antenna structure in willful and repeated
    violation of Section 17.48(a) of the Rules, and failure to exhibit
    the required obstruction lighting on its antenna structure in
    willful and repeated violation of Section 17.51 of the Rules.[^4] In
    its response to the *NAL*, SCCC acknowledges that it was in
    violation of these rules on the dates specified in the *NAL* and
    that the circumstances warrant imposition of a forfeiture. However,
    SCCC requests reduction of the \$10,000 forfeiture proposed in the
    *NAL* based on its past history of compliance with the Commission's
    rules. In this regard, SCCC states that it has been the licensee of
    30 broadcast facilities over the past 50 years and has an
    unblemished history of compliance with the Commission's technical
    requirements, including those related to towers, during this period.
    SCCC also notes that when it acquired the tower in 1987, the tower
    did not appear to be adequately painted or lighted. SCCC asserts
    that it immediately sought authority from the FAA to install medium
    intensity obstruction lighting on the tower and that the FAA
    subsequently notified the FCC that it had no objection to the use of
    such lighting on the tower. In support of this assertion, SCCC
    provides a copy of a 1987 letter from the FAA, which states in part:
    "By copy of this letter, we are informing the Federal Communications
    Commission that we have no objection to the use of a medium
    intensity white obstruction lighting system on this structure ...."
    Finally, SCCC notes that upon learning of the lighting outage from
    the FCC agent on May 21, 2002, it immediately notified the FAA of
    the outage and then promptly installed a new fail-safe strobe "flash
    head" and related failure detector which will afford automatic
    notification in the event of a bulb failure as well as a basic power
    failure.

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III. **DISCUSSION**

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7.  The forfeiture amount in this case was assessed in accordance with
    Section 503(b) of the Communications Act of 1934, as amended,
    ("Act"),[^5] Section 1.80 of the Rules,[^6] 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). In examining SCCC'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.[^7]

8.  Section 17.47(a)(2) of the Rules requires antenna structure owners
    to provide and properly maintain an automatic alarm system designed
    to detect any lighting failure and to provide notification of such
    failure to the owner.[^8] Section 17.48(a) of the Rules requires
    antenna structure owners to notify the FAA immediately of any
    obstruction light outage if the outage cannot be corrected within 30
    minutes. Section 17.51 of the Rules requires antenna structure
    owners to exhibit the prescribed obstruction lighting. SCCC admits
    that it was in violation of these rules on the dates specified in
    the *NAL*. Accordingly, we conclude that SCCC willfully[^9] and
    repeatedly[^10] violated Sections 17.47(a)(2), 17.48(a) and 17.51 of
    the Rules.

9.  SCCC notes that when it acquired the tower in 1987, it requested and
    received approval from the FAA to install medium intensity
    obstruction lighting on the tower. While we acknowledge that the FAA
    notified the Commission in 1987 that it had no objection to the use
    of medium intensity white obstruction lighting on SCCC's tower in
    lieu of painting and red obstruction lighting, this fact does not
    mitigate the forfeiture proposed in the *NAL* because the medium
    intensity white obstruction lighting installed on SCCC's tower was
    not functioning on the dates of inspection.[^11] Further, the
    corrective actions taken by SCCC upon learning of the lighting
    outage from the FCC do not justify any reduction of the forfeiture.
    The Commission has stated that remedial actions taken to correct a
    violation are not mitigating factors warranting reduction of a
    forfeiture.[^12] However, after considering SCCC's history of
    compliance with the Commission's rules, we conclude that reduction
    of the forfeiture proposed in the *NAL* from \$10,000 to \$8,000 is
    appropriate.

####  IV. ORDERING CLAUSES

10. Accordingly, **IT IS ORDERED** that, pursuant to Section 503 of the
    Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^13]
    South Central Communications Corp. **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of eight thousand dollars (\$8,000) for
    willful and repeated violations of Sections 17.47(a)(2), 17.48(a)
    and 17.51 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.[^14] 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. 200232480008 and FRN
    0002-9009-26. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Operations Group,
    445 12th Street, S.W., Washington, D.C. 20554.[^15]

12. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by first class mail and certified mail return receipt requested to
    South Central Communications Corp., 1100 Sharps Ridge Road,
    Knoxville, Tennessee 37917, and to its counsel, Edward S. O'Neill,
    Esq., Fletcher, Heald & Hildreth, P.L.C., 11th Floor, 1300 North
    17th Street, Arlington, Virginia 22209-3801.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 17.47(a)(2), 17.48(a) and 17.51.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200232480008 (Enf. Bur., Atlanta Office, released June 25, 2002).

[^3]: Tower owners are required to report any obstruction lighting
    outages to the nearest Flight Service Station or FAA office
    immediately if the outage is not corrected within 30 minutes. *See*
    47 C.F.R. § 17.48(a). The FAA then issues a NOTAM, a written
    advisory to aircraft pilots regarding a hazard or potential hazard
    of which they should be aware. A NOTAM expires automatically after
    15 days, unless the tower owner calls the FAA to extend the NOTAM.

[^4]: The Atlanta Office also found that SCCC had failed to conform to
    the painting and lighting specifications contained in the FAA
    Advisory Circular specified in its ASR in willful and repeated
    violation of Section 17.23 of the Rules, 47 C.F.R. § 17.23. We note,
    however, that Section 17.23 applies only to new and altered antenna
    structures registered on or after January 1, 1996, not to existing
    structures authorized prior to July 1, 1996. *See* 47 C.F.R. §
    17.17(a). The antenna structure at issue here was an existing
    structure authorized prior to July 1, 1996, and therefore is not
    covered under Section 17.23. This inadvertent error does not affect
    the forfeiture amount in this case because the *NAL* did not propose
    a separate forfeiture amount for violation of Section 17.23. The
    \$10,000 forfeiture proposed in the *NAL* is the base forfeiture
    amount for a tower lighting violation. *See* 47 C.F.R. § 1.80(b)(4),
    Note to Paragraph (b)(4): *Section I.-Base Amounts for Section 503
    Forfeitures*.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: As an alternative to maintaining an automatic alarm system, a
    tower owner may make an observation of the tower 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. 47 C.F.R. § 17.47(a)(1). SCCC does not allege that it
    observed the tower lights visually or by observing an automatic
    indicator at least once every 24 hours.

[^9]: 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).

[^10]: Section 312(f)(2) of the Act provides that "\[t\]he term
    'repeated,' ... 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).

[^11]: As explained in note 4 *supra*, the *NAL* incorrectly cited SCCC
    for willful and repeated violation of Section 17.23 of the Rules for
    failure to conform to the painting and lighting specifications
    contained in the FAA Advisory Circular specified in its ASR.
    However, this inadvertent error does not affect the forfeiture
    amount because the *NAL* did not propose a separate forfeiture for
    violation of Section 17.23. The \$10,000 forfeiture proposed in the
    *NAL* is the base forfeiture amount for a tower lighting violation.
    *See* 47 C.F.R. § 1.80(b)(4), Note to Paragraph (b)(4): *Section
    I.-Base Amounts for Section 503 Forfeitures*.

[^12]: *See Station KGVL, Inc.*, 42 FCC 2d 258, 259 (1973).

[^13]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^14]: 47 U.S.C. § 504(a).

[^15]: *See* 47 C.F.R. § 1.1914.