Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | **  | File No. EB-02-SD-012       |
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| AT&T Wireless Services, Inc.     |     | NAL/Acct. No. 200232940002  |
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| Washington, DC                   | )** | FRN \# 0006-1660-29         |
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**FORFEITURE ORDER**

**Adopted: October 29, 2002 Released: October 31, 2002**

By the Commission:

# Introduction

1.  In this *Forfeiture Order* *("Order")*, we assess a forfeiture in
    the amount of one hundred seventeen thousand dollars (\$117,000)
    against AT&T Wireless Services, Inc. ("AT&T Wireless") for seven
    willful and/or repeated violations of Section 303(q) of the
    Communications Act of 1934, as amended ("Act"),[^1] and Part 17 of
    the Commission's Rules ("Rules") relating to antenna structure
    construction, marking and lighting.[^2] The noted violations involve
    AT&T Wireless's failure on one occasion to register an existing
    antenna structure in willful violation of Section 17.4(a)(2);
    failure on three occasions to post the Antenna Structure
    Registration ("ASR") number in a conspicuous location so that it is
    visible near the base of the antenna structure in willful violation
    of Section 17.4(g); failure on one occasion to maintain good
    visibility of antenna structures that are required to be painted in
    willful and repeated violation of Section 17.50; and failure on two
    occasions to maintain the required obstruction lighting on an
    antenna structure in willful and repeated violation of Section
    17.51(b).[^3]

# background

2.  The Commission's antenna structure construction, marking and
    lighting requirements operate in concert with Federal Aviation
    Administration ("FAA") regulations to ensure that antenna structures
    do not present hazards to air navigation. Generally, our rules
    require that antenna structures located close to airports or that
    are greater than 200 feet in height comply with painting and
    lighting specifications designed to ensure air safety.[^4] We also
    require antenna structure owners to register such antenna structures
    with the Commission and post ASR numbers at the base of antenna
    structures to allow for easy contact if problems arise.[^5] Because
    of the substantial public safety issues involved, we further require
    antenna structure owners to monitor lights daily or install
    automatic alarm systems to ensure lights function properly.[^6]
    Antenna structure owners are required to maintain lighting equipment
    and replace or repair inoperative lights, indicators and control and
    alarm systems as soon as practicable.[^7] Additionally, antenna
    structure owners are required immediately to notify the FAA when
    major antenna structure lights are inoperative and cannot be
    repaired within 30 minutes.[^8] The FAA then issues a Notice to
    Airmen ("NOTAM") for a period of 15 days advising aircraft that
    there is an antenna structure at a specific location with a
    temporary light outage.

3.  Commission field agents regularly inspect antenna structures to
    determine compliance with the antenna structure construction,
    marking and lighting requirements and promptly respond to complaints
    of unlit towers. During routine inspections of antenna structures
    owned by AT&T Wireless, from April 20, 2000 to December 7, 2000,
    Commission field agents discovered nine antenna structures that did
    not have the ASR numbers posted as required. These violations
    resulted in a \$14,000 monetary forfeiture against AT&T Wireless
    issued on March 19, 2001,[^9] which AT&T Wireless paid in full on
    April 16, 2001.

4.  Subsequently, in the course of further routine inspections and
    investigations, Commission field agents uncovered a significant
    number of new violations of the Commission's antenna structure rules
    by AT&T Wireless.[^10] On April 25, 2002, the Commission issued a
    *Notice of Apparent Liability for Forfeiture* ("*NAL*") finding AT&T
    Wireless apparently liable for a \$153,000 forfeiture for nine
    apparent violations of the antenna structure rules: one failure to
    register an existing antenna structure (Section 17.4(a)(2)); four
    failures to post the ASR number in a conspicuous location so that it
    is visible near the base of the antenna structure (Section 17.4(g));
    one failure to comply with the FAA's painting and lighting
    specifications for antenna structures (Section 17.23);[^11] one
    failure to maintain good visibility of antenna structures that are
    required to be painted (Section 17.50); and two failures to maintain
    the required obstruction lighting on the antenna structures (Section
    17.51(b)).[^12] The total base forfeiture amount for the nine
    violations was \$51,000. However, the Commission expressed concern
    that AT&T Wireless continued to violate the antenna structure rules
    despite a forfeiture assessment one year earlier for nine instances
    of failure to comply with the ASR posting rules and found that these
    continuing violations evinced a pattern of non-compliance and
    apparent disregard for these safety-related rules. The Commission
    therefore concluded that a significant upward adjustment of the base
    forfeiture amount was warranted and tripled the base forfeiture
    amount for AT&T Wireless's apparent violations from \$51,000 to
    \$153,000.

5.  AT&T Wireless filed a response to the *NAL* on May 28, 2002. In its
    response, AT&T Wireless disputes that violations occurred in many of
    the instances cited in the *NAL* and requests that the Commission
    reduce the total base forfeiture amount to \$6,500. AT&T Wireless
    also argues that the Commission's decision in the *NAL* to triple
    the aggregate base forfeiture amount was unwarranted.

    **III. DISCUSSION**

6.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^13] Section 1.80 of the
    Rules,[^14] 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 AT&T Wireless's response to the *NAL*,
    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.[^15] The Commission will
    issue a forfeiture order if it finds by a preponderance of the
    evidence that AT&T Wireless has violated the Act or the Rules.[^16]
    As set forth in detail below, we conclude that, based on this
    standard, AT&T Wireless is subject to a forfeiture.

    **A.** **AT&T Wireless's Challenges to Violations**

7.  AT&T Wireless disputes a number of the violations cited in the
    *NAL*. We address AT&T Wireless's arguments with respect to the
    specific violations in turn below.

    Center Township, Pennsylvania -- File No. EB-02-PA-043

8.  On January 24, 2002, an agent from the Commission's Philadelphia,
    Pennsylvania Field Office ("Philadephia Office") inspected a Center
    Township, Pennsylvania antenna structure owned by AT&T Wireless (ASR
    No. 1026350). The agent observed that the white obstruction lighting
    on the tower was not operating. On January 31, 2002, the
    Philadelphia Office issued a Notice of Violation ("NOV") citing AT&T
    Wireless for failure to conform to the FAA's painting and lighting
    specifications in violation of Section 17.23 of the Rules. In its
    February 13, 2002, response to the NOV, AT&T Wireless confirmed that
    the obstruction lighting was out at the time of the inspection. AT&T
    Wireless stated that an employee noticed the outage on January 30,
    2002 and discovered that the automatic monitoring system that alerts
    AT&T Wireless when a light is out did not pick up the outage because
    a relay on the tower malfunctioned. AT&T Wireless further stated
    that it called the FAA to open a NOTAM the same day, and that it
    repaired the light outage and the malfunctioning relay on the
    following day and then closed the NOTAM. In the *NAL*, the
    Commission cited AT&T Wireless for apparently failing to exhibit
    obstruction lighting on its Center Township tower continuously in
    willful and repeated violation of Section 17.51(b) and, prior to the
    upward adjustment, proposed a \$10,000 forfeiture for this
    violation.[^17]

9.  In its response to the *NAL*, AT&T Wireless argues that it does not
    believe that it violated the tower lighting rules at the Center
    Township site and that the proposed forfeiture should therefore be
    cancelled. AT&T Wireless asserts that a conflict in the rules places
    antenna structure owners in a "Catch-22" situation because Section
    17.51(b) requires continuous operation of obstruction lights, while
    Section 17.47(a) recognizes that lights will sometimes malfunction
    and therefore requires either daily observation of the lights or use
    of an automatic alarm system. In addition, AT&T Wireless asserts
    that it complied fully with the tower lighting requirements but
    could not prevent the brief light outage. Specifically, AT&T
    Wireless states that it installed an automatic alarm system, but
    this system did not pick up the light outage because there was a
    malfunction in a relay on the tower that causes alarms to be
    transmitted to the local switch and to its national network
    operations center. Further, AT&T Wireless states that it inspected
    the tower and the alarm system "regularly." AT&T Wireless also
    states that an AT&T Wireless employee noticed the outage on January
    30, 2002, the day before the NOV was issued, and took steps to
    remedy the outage within one day.

10. We find no merit in AT&T Wireless's arguments. AT&T Wireless's bare
    assertion that it inspected the tower and alarm system "regularly,"
    without more specific evidence of such a practice, is insufficient
    to establish its compliance with the tower lighting requirements.
    Accordingly, we conclude that AT&T Wireless willfully and repeatedly
    violated Section 17.51(b) by failing to exhibit white obstruction
    lighting on its Center Township towers and that AT&T Wireless has
    presented no basis for canceling or reducing the \$10,000 forfeiture
    proposed in the *NAL* for this violation.

    Woodland, California - File No. EB-00-SF-478

11. On September 15, 2000, agents from the Commission's San Francisco,
    California Field Office ("San Francisco Office") inspected a
    Woodland, California antenna structure owned by AT&T Wireless (ASR
    No. 1014047). The agents observed that coaxial cable on two sides of
    the tower reduced good visibility of the structure. On June 8, 2001,
    the San Francisco Office issued an NOV citing AT&T Wireless for
    failure to maintain good visibility of the tower in violation of
    Section 17.50 of the Rules. In its June 18, 2001, response to the
    NOV, AT&T Wireless stated that it was in the process of having all
    of the coaxial cable on the tower painted in aviation orange and
    white as described in the current FAA Advisory Circular on
    Obstruction Marking and Lighting and that it anticipated that the
    painting would be completed by June 29, 2001. In the *NAL*, the
    Commission cited AT&T Wireless for apparently failing to maintain
    good visibility of the Woodland tower in willful and repeated
    violation of Section 17.50 and, prior to the upward adjustment,
    proposed a \$10,000 forfeiture for this violation.

12. In its response to the *NAL*, AT&T Wireless does not dispute that it
    violated Section 17.50. However, it disagrees with the Commission's
    conclusion in the *NAL* that this violation falls within the
    one-year statute of limitations in Section 503(b)(6)(B) of the
    Act.[^18] AT&T Wireless states that the Commission became aware of
    the presence of the coaxial cable on the tower when it inspected the
    tower on September 15, 2000, yet it did not commence forfeiture
    proceedings until April 25, 2002. The Commission nevertheless
    determined in the *NAL* that the violation of Section 17.50 was
    within the one-year statute of limitations because the violation
    continued until the painting of the coaxial cable was completed in
    June 2001. AT&T Wireless acknowledges that the statute of
    limitations accrues at the time of the violation, as opposed to when
    the agency has knowledge of the violation. Furthermore, AT&T
    Wireless does not dispute that this violation was continuing.
    Nevertheless, AT&T Wireless maintains that the Commission's view
    that the statute of limitations is satisfied in this case because
    the violation was continuing undermines Congress's objective in
    establishing deadlines for regulatory enforcement action. We
    disagree. The underlying objective of the statute of limitations --
    to protect a person from liability for stale claims -- is not
    implicated where, as here, a violation is continuing.

13. AT&T Wireless also argues that a \$10,000 forfeiture is excessive in
    this situation. In this regard, AT&T Wireless asserts the tower
    itself was painted in aviation orange and white, that it does not
    believe that the unpainted coaxial cable severely reduced the
    tower's visibility, and that it is unlikely that the Field Office
    would have waited nine months to alert AT&T Wireless to the problem
    if the unpainted cable truly created a safety hazard. Additionally,
    AT&T Wireless states that it acted promptly when it received the NOV
    to have the cables painted in less than three weeks. AT&T Wireless
    further asserts that the Commission's rules establish \$10,000 as
    the fine for "failure to comply with prescribed lighting or marking"
    and that this amount would therefore be imposed when an owner failed
    to paint its tower altogether or otherwise created a true hazard to
    air safety. AT&T Wireless states that there is no indication that
    air safety was ever compromised by the unpainted cable and that the
    \$10,000 forfeiture proposed in the *NAL* should therefore be
    cancelled.

14. Since AT&T Wireless does not deny that the coaxial cable on its
    Woodland tower was not painted from September 15, 2000 until June
    29, 2001, we conclude that it willfully and repeatedly violated
    Section 17.50 of the Rules by failing to maintain good visibility of
    the tower. We disagree with AT&T Wireless's argument that a \$10,000
    forfeiture for this violation is excessive. The fact that the tower
    itself was painted in aviation orange and white does not mitigate
    this violation. Three agents from the San Francisco Office observed
    the tower and determined that the coaxial cable obscured good
    visibility of the tower. Moreover, while it would have been
    preferable for the Field Office to have taken action here more
    promptly, it is AT&T Wireless's responsibility as a tower owner to
    ensure that its towers comply with the painting requirements and
    avoid the continuing violation that occurred. We also think it is
    irrelevant that there is no indication that air safety was actually
    compromised by the unpainted cable. The potential hazard to air
    navigation presented by the unpainted cable raises serious safety of
    life concerns justifying a \$10,000 forfeiture. Finally, AT&T
    Wireless's remedial actions to correct the violation are not a
    mitigating factor.[^19]

    Holly Hill, Florida -- File No. EB-02-TP-054

15. On February 7, 2002, and again on February 8, 2002, an agent from
    the Commission's Tampa, Florida Field Office ("Tampa Office")
    inspected a Holly Hill, Florida antenna structure. On both
    occasions, the agent observed that there was no ASR number posted at
    the site and that the red obstruction lighting on the tower was
    operating, but the white obstruction lighting on the tower was not
    in operation. Subsequent investigation revealed that the tower was
    registered to AT&T Wireless (ASR No. 1203757), that the FAA's
    painting and lighting specifications for the tower require both red
    and white obstruction lighting, and that there was no NOTAM in
    effect for the tower. In the *NAL*, the Commission cited AT&T
    Wireless for apparently failing to post the ASR number in a
    conspicuous place so that it is readily visible near the base of the
    tower in willful violation of Section 17.4(g) of the Rules and
    failing to exhibit the required white obstruction lighting on the
    tower in willful and repeated violation of Section 17.51(b) of the
    Rules.[^20] The Commission, prior to the upward adjustment, proposed
    a \$2,000 forfeiture for the posting violation and a \$10,000
    forfeiture for the lighting violation.

16. In its response to the *NAL*, AT&T Wireless concedes that it did not
    have the ASR number posted at the Holly Hill site at the time of the
    inspection. However, AT&T Wireless asserts that the \$10,000
    forfeiture proposed for failure to exhibit white obstruction
    lighting on the tower should be cancelled. AT&T Wireless states that
    it has an automatic alarm system for this tower and its switches
    and/or network operations center pick up alarms when lights on the
    tower malfunction. AT&T Wireless further states that it has examined
    its logs for the Holly Hill site and no alarms were received for
    this tower since January 1, 2002. AT&T Wireless indicates that after
    the *NAL* was released, it dispatched a technician to the site on
    April 29, 2002, and the technician observed that all lights were
    operating correctly and that the alarm system was in proper
    operating condition. AT&T Wireless asserts that it cannot explain
    the discrepancy between its records and observations and those of
    the Commission's field agent. AT&T Wireless states that it is
    conceivable that there were some intermittent light problems but
    maintains that the alarm would have been triggered in that case.
    AT&T Wireless also suggests that it is possible that the lights were
    operational but not easily seen from the ground. AT&T Wireless
    argues that since two and a half months passed between the Tampa
    Office's observations and issuance of the *NAL*, it cannot now
    defend itself against charges for a violation that was not
    continuing at the time of the *NAL* and for which it has no record
    of having occurred.

17. Since AT&T Wireless admits that it did not have the ASR number
    posted at the Holly Hill site at the time of the inspection, we
    conclude that it willfully violated Section 17.4(g) of the Rules.
    Based on the record before us, we also conclude that AT&T Wireless
    willfully and repeatedly violated Section 17.51(b) of the Rules by
    failing to exhibit white obstruction lighting on the tower. The fact
    that AT&T Wireless has no record of the lighting violation does not
    justify cancellation of the proposed forfeiture. AT&T Wireless's
    suggestion that the lights were operational but not easily seen from
    the ground is unsupported by the record. The inspecting agent
    observed the tower from the ground at the Holly Hill site and also
    drove away from the site in a couple of directions and observed the
    tower from a distance. Using this method, the agent observed that
    the white obstruction lighting was not operational. Under these
    circumstances, we find no basis for canceling the \$10,000
    forfeiture proposed for this violation.

    Bluffdale, Utah -- File No. EB-01-DV-382

18. On August 14, 2001, agents from the Commission's Denver, Colorado
    Field Office ("Denver Office") inspected a Bluffdale, Utah antenna
    structure owned by AT&T Wireless (ASR No. 1039565). The agents
    observed that a side intermediate light on the southwestern side of
    the tower was flashing, rather than steady burning as required by
    the tower's ASR. On November 19, 2001, the Denver Office issued an
    NOV citing AT&T Wireless for failure to conform to the FAA's
    painting and lighting specifications for the tower in violation of
    Section 17.23 of the Rules and failure to correct the improper
    functioning of a steady burning side intermediate light in violation
    of Section 17.48(b) of the Rules. In its December 20, 2001, response
    to the NOV, AT&T Wireless admitted that a side intermediate light on
    the tower was flashing, rather than steady burning, and stated that
    it had taken steps to repair the light. In the *NAL*, the Commission
    cited AT&T Wireless for apparently failing to conform to the FAA's
    painting and lighting specifications for the Bluffdale tower in
    willful and repeated violation of Section 17.23 and, prior to the
    upward adjustment, proposed a base forfeiture of \$10,000 for this
    violation.

19. In its response to the *NAL*, AT&T Wireless asserts, for the first
    time, that the Bluffdale tower was registered voluntarily (i.e., the
    structure was less than 200 feet in height and passed the "slope
    test" used to determine whether a structure will interfere with the
    approach or departure space of a nearby airport and therefore FAA
    notification of the structure was not required)[^21] and indicates
    that it terminated the registration for this tower on December 19,
    2001.[^22] AT&T Wireless argues that since it was not required to
    register this tower, we should not impose a forfeiture for the
    violation cited in the *NAL*. We agree with AT&T Wireless and we
    will cancel the forfeiture proposed for this violation.[^23] We
    remind AT&T Wireless, however, that the Commission has previously
    stated that antenna structures which do not require notification to
    the FAA should not be registered.[^24]

    Tyler, Texas -- File No. EB-01-DL-696

    Okeechobee, Florida -- File No. EB-02-TP-012

    Malabar, Florida -- File No. EB-01-TP-488

20. On November 15, 2001, the FCC's Dallas, Texas Field Office issued an
    NOV citing AT&T Wireless for failing to post its ASR number on or
    near the base of its Tyler, Texas antenna structure in violation of
    Section 17.4(g) of the Rules. On December 3, 2001, and January 14,
    2002, respectively, the Tampa Office issued NOVs citing AT&T
    Wireless for failing to post its ASR numbers on or near the base of
    its Malabar, Florida and Okeechobee, Florida antenna structures in
    violation of Section 17.4(g) of the Rules. In the *NAL*, the
    Commission cited AT&T Wireless for apparently failing to post its
    ASR number at these three tower sites in willful violation of
    Section 17.4(g) of the Rules and, prior to the upward adjustment,
    proposed forfeitures of \$2,000 for each of these violations. In its
    response to the *NAL*, AT&T Wireless asserts that the \$2,000
    forfeiture proposed for the Malabar, Florida site should be
    cancelled because there was no violation of Section 17.4(g) at this
    site. In this regard, AT&T Wireless states that while the ASR number
    was not visible from outside the Malabar, Florida tower compound,
    the ASR number was affixed to the base of the tower and could be
    easily seen at the base of the tower. AT&T Wireless acknowledges
    that the ASR numbers were not posted at the Tyler, Texas and
    Okeechobee, Florida tower sites at the time of the inspections,
    although it states that it believes that the ASR numbers were
    originally attached to these towers and suggests that ASR placards
    sometimes disappear because of weather conditions or vandalism.

21. We agree with AT&T Wireless that the \$2,000 forfeiture proposed for
    the Malabar, Florida site should be cancelled. Section 17.4(g)
    requires that the ASR number be posted in a conspicuous location so
    that it is readily visible on or near the base of the tower, and it
    now appears that the ASR number was in fact affixed to the base of
    the Malabar, Florida tower. However, we conclude that AT&T Wireless
    willfully violated Section 17.4(g) by failing to post the ASR
    numbers on or near the base of the Tyler, Texas and Okeechobee,
    Florida towers and that AT&T Wireless has provided no basis for
    canceling or reducing the forfeitures proposed in the *NAL* for
    these violations. AT&T Wireless presents no evidence that the ASR
    numbers were originally posted at the Tyler, Texas and Okeechobee,
    Florida tower sites or that the ASR numbers were missing from these
    sites due to either vandalism or weather. Moreover, it proffers no
    evidence that it periodically inspected its ASR number postings to
    learn of any that are missing.

    Fellsmere, Florida -- File No. EB-01-TP-502

22. On December 21, 2001, the Tampa Office issued an NOV citing AT&T
    Wireless for failing to register its Fellsmere, Florida tower in
    violation of Section 17.4(a)(2) of the Rules. In the *NAL*, the
    Commission cited AT&T Wireless for apparently failing to register
    its Fellsmere, Florida tower in willful violation of Section
    17.4(a)(2) of the Rules and, prior to the upward adjustment,
    proposed a \$3,000 forfeiture for this violation. In its response to
    the *NAL*, AT&T Wireless admits that the Fellsmere tower was not
    registered at the time of the inspection. It argues, however, that
    the forfeiture for this violation should be reduced to \$1,500
    because, although not registered, the tower received an FAA
    determination of "no hazard" in 1991 (based on the required lighting
    and marking) and has been lighted and marked in accordance with
    Commission and FAA requirements since that time. AT&T Wireless
    asserts that, when the Commission adopted the tower registration
    rules in 1996, AT&T Wireless inadvertently overlooked this tower in
    the course of filing ASRs for the hundreds of towers it owned.

23. We conclude that AT&T Wireless failed to register its Fellsmere,
    Florida tower in willful violation of Section 17.4(a)(2) of the
    Rules. In addition, we find no basis for reduction of the \$3,000
    forfeiture proposed in the *NAL* for this violation. AT&T Wireless
    has provided no support for its assertion that its failure to
    register the tower was inadvertent. Moreover, AT&T Wireless's
    compliance with related lighting and marking rules does not render
    the failure to register less significant; had the lights failed, the
    FCC still may not have known who to contact because of the lack of
    registration. Furthermore, as we stated in the *NAL*¸ we have
    repeatedly advised antenna structure owners that all existing
    antenna structures subject to our rules must be registered
    *immediately* or the owners face a monetary forfeiture or other
    enforcement action.[^25]

    **B.** **Calculation of Forfeiture Amount**

24. In addition to its specific challenges to the violations cited in
    the *NAL*, AT&T Wireless also argues that the Commission's decision
    in the *NAL* to triple the aggregate base forfeiture amount was
    unwarranted. First, AT&T Wireless states that the Commission's
    decision to triple the base forfeiture amount stemmed from its
    belief that AT&T Wireless had committed three very serious
    violations of the tower lighting rules. AT&T Wireless maintains,
    however, that it did not violate the tower lighting rules in any of
    the instances cited in the *NAL*. Additionally, AT&T Wireless argues
    that the Commission's apparent belief that AT&T Wireless is
    indifferent to the need to comply with the antenna structure rules
    is far from the truth, as evidenced by AT&T Wireless's thorough
    internal procedures and its prompt efforts to cure violations
    brought to its attention. In this regard, AT&T Wireless asserts that
    its longstanding policy has been to adhere strictly to the antenna
    structure rules and that it previously registered towers on a
    regular basis even when not required to do so under the rules. AT&T
    Wireless further asserts that since it was sanctioned last year for
    several ASR number posting violations, it has taken a number of
    steps to better ensure that its compliance policy and the specifics
    of the Commission's rules are communicated effectively to the
    relevant personnel. Specifically, AT&T Wireless states that it has
    designated three employees in its Washington, D.C. legal office to
    oversee compliance efforts and to serve as liaisons for all
    questions from the field about the tower structure rules, that this
    group has prepared and distributed memoranda and e-mails detailing
    the registration, posting and lighting requirements on numerous
    occasions, and that it has reinstituted its "FCC 101" courses for
    its employees across the country, the curriculum of which includes
    antenna structure compliance.

25. We are not persuaded by AT&T Wireless's arguments that our decision
    in the *NAL* to triple the aggregate base forfeiture amount was
    unwarranted. As explained in detail above, we disagree with AT&T
    Wireless's claim that it did not violate the tower lighting rules in
    any of the three instances cited in the *NAL*. Although we have
    cancelled one of the lighting violations because the tower was
    voluntarily registered, we have concluded that AT&T Wireless did
    willfully and repeatedly violate the tower lighting rules in two of
    the instances cited in the *NAL*. Coupled with the painting and
    posting violations in this case and AT&T Wireless's past history of
    posting violations, we continue to believe that these serious
    lighting violations support a substantial upward adjustment of the
    base forfeiture amount.

26. Moreover, while AT&T Wireless asserts that its longstanding policy
    has been to adhere strictly to the antenna structure rules and that
    it has taken various steps to improve its compliance with these
    rules, we are not convinced that AT&T Wireless had an effective
    antenna structure compliance program in place at the time of these
    violations. Nor do we think that AT&T Wireless's efforts to cure
    violations brought to its attention due in part to the failure of
    its current system to provide timely notifications demonstrate
    strict compliance with the rules. All licensees and Commission
    regulatees are expected to promptly take corrective action when
    violations are brought to their attention. We also note that nothing
    in AT&T Wireless's description of its compliance plan indicates any
    efforts to do follow-up checks regarding its compliance with
    registration and posting rules.

27. More importantly, we find it troubling that AT&T Wireless apparently
    continues to violate the antenna structure rules. During the period
    just prior to the issuance of the *NAL*, the Commission's Field
    Offices issued three additional NOVs to AT&T Wireless as a result of
    routine tower inspections, two for ASR number posting violations and
    one for failure to notify the Commission of completion of
    construction of an antenna structure.[^26] In its responses to these
    NOVs, AT&T Wireless admitted that the ASR numbers were not posted at
    the times of the inspections and that it failed to notify the
    Commission when it completed construction of the tower. Furthermore,
    since issuance of the *NAL*, the Field Offices have issued two more
    NOVs to AT&T Wireless, one for an ASR number posting violation and
    failure to notify the Commission of completion of construction of an
    antenna structure and one for failure to paint coaxial cable
    attached to the face of a tower.[^27] In its response to the NOV
    issued for a posting violation and failure to notify the Commission
    of completion of construction, AT&T acknowledged that there was no
    ASR number posted at the time of the inspection and that it failed
    to notify the Commission of completion of construction of the tower.
    In its response to the NOV issued for failure to paint the coaxial
    cable, AT&T Wireless acknowledges that the cable was not painted.
    The Enforcement Bureau continues to investigate these apparent
    violations, and we note that there has been no adjudication in these
    cases. Nevertheless, these additional apparent violations reinforce
    our conclusion in the *NAL* that AT&T Wireless's continuing
    violations evince a pattern of non-compliance with and apparent
    disregard for these safety-related rules. We accordingly affirm our
    decision in the *NAL* to triple the total base forfeiture amount for
    all of AT&T Wireless's violations.

28. As discussed above, we have concluded that it is appropriate to
    cancel the forfeiture amounts proposed in the *NAL* for one lighting
    violation (\$10,000) and for one ASR number posting violation
    (\$2,000). The base forfeiture amounts for the remaining violations
    total \$39,000 (\$10,000 for each of the three instances of
    violations of the lighting and marking rules, \$3,000 for the
    failure to register an antenna structure, and \$2,000 for each of
    the three ASR number posting violations). We continue to believe
    that it is appropriate to triple the aggregate base forfeiture
    amount for these violations. Accordingly, we conclude that AT&T
    Wireless is liable for a forfeiture in the amount of \$117,000 for
    willful and repeated violations of Section 303(q) of the Act and
    Sections 17.50 and 17.51(b) of the Rules and willful violations of
    Sections 17.4(a)(2) and 17.4(g) of the Rules.

    **IV. ORDERING CLAUSES**

29. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
    Act, and Section 1.80 of the Rules, AT&T Wireless Services, Inc.
    **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of one hundred
    seventeen thousand dollars (\$117,000) for willfully and repeatedly
    violating Section 303(q) of the Act and Sections 17.50 and 17.51(b)
    of the Rules and willfully violating Sections 17.4(a)(2) and 17.4(g)
    of the Rules.

30. 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 NAL/Acct. No. 200232940002 and
    FRN \# 0006-1660-29. Requests for payment of the full amount of this
    Notice of Apparent Liability under an installment plan should be
    sent to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, S.W., Washington, DC 20554.[^28]

31. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
    Liability shall be sent by Certified Mail Return Receipt Requested
    to David Jatlow, Vice President, Regulatory Affairs, AT&T Wireless
    Services, Inc. at Fourth Floor, 1150 Connecticut Avenue, N.W.,
    Washington, DC 20036, and to Sara Leibman, Esq., Mintz, Levin, Cohn,
    Ferris, Glovsky and Popeo, P.C., 701 Pennsylvania Avenue, N.W.,
    Suite 900, Washington, D.C. 20004.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: ^?^ 47 U.S.C. § 303(q) (Antenna structure owners shall maintain
    the painting and lighting of antenna structures as prescribed by the
    Commission.)

[^2]: ^?^ 47 C.F.R. § 17.1 *et seq.*

[^3]: ^?^ 47 C.F.R. §§ 17.4(a)(2), 17.4(g), 17.50 and 17.51(b).

[^4]: ^?^ 47 C.F.R. § 17.21.

[^5]: ^?^ 47 C.F.R. § 17.4.

[^6]: ^?^ 47 C.F.R. § 17.47.

[^7]: ^?^ 47 C.F.R. § 17.56.

[^8]: ^?^ 47 C.F.R. § 17.48.

[^9]: ^?^ *AT&T Wireless Services, Inc*., 16 FCC Rcd 814 (Enf. Bur.
    2001), *forfeiture ordered*, 16 FCC Rcd 6805 (Enf. Bur. 2001).

[^10]: ^?^ *See* *Public Notice*, *Enforcement Bureau Field Offices List
    of Actions Taken*, DA 01-1314 (rel. May 31, 2001); *Public Notice*,
    *Enforcement Bureau Field Offices List of Actions Taken*, DA 01-1644
    (rel. July 12, 2001); *Public Notice*, *Enforcement Bureau Field
    Offices List of Actions Taken*, DA 01-1756 (rel. July 25, 2001);
    *Public Notice*, *Enforcement Bureau Field Offices List of Actions
    Taken*, DA 01-2948 (rel. December 21, 2001); and *Public Notice*,
    *Enforcement Bureau Field Offices List of Actions Taken*, DA 02-197
    (rel. January 28, 2002).

[^11]: ^?^ 47 C.F.R. § 17.23.

[^12]: ^?^ *AT&T Wireless Services, Inc.*, 17 FCC Rcd 7891 (2002).

[^13]: ^?^ 47 U.S.C. § 503(b).

[^14]: ^?^ 47 C.F.R. § 1.80.

[^15]: ^?^ 47 U.S.C. § 503(b)(2)(D).

[^16]: ^?^ *See*, *e.g.*, *SBC Communications, Inc.*, 17 FCC Rcd 7589,
    7591 (2002); *Tuscola Broadcasting Co.*, 76 FCC 2d 367, 371 (1980).

[^17]: ^?^ The Commission noted that Section 17.23, which was cited by
    the Philadelphia Office in the NOV, generally requires antenna
    structure owners to comply with the FAA's painting and lighting
    specifications and thus clearly covered the observed violation.
    However, the Commission cited AT&T Wireless in the *NAL* for
    violation of Section 17.51(b), which specifically requires antenna
    structure owners to exhibit all high intensity and medium intensity
    obstruction lighting continuously.

[^18]: ^?^ Section 503(b)(6)(B) provides that the Commission may not
    issue a forfeiture against a person who does not hold a broadcast
    license if the violation charged occurred more than one year prior
    to the date of issuance of the required notice of apparent
    liability. 47 U.S.C. § 503(b)(6)(B).

[^19]: ^?^ *See Station KGVL, Inc.*, 42 FCC 2d 258, 259 (1973).

[^20]: ^?^ The Tampa Office did not issue an NOV to AT&T Wireless for
    these violations.

[^21]: ^?^ *See* 47 C.F.R. § 17.7.

[^22]: ^?^ AT&T Wireless did not mention the fact that the Bluffdale
    tower was voluntarily registered or that it had terminated the
    registration for this tower in its response to the NOV.

[^23]: *See e.g.*, *AT&T Wireless Services, Inc.*, 16 FCC Rcd 6805, 6806
    (Enf. Bur. 2001); *VoiceStream PCS I License L.L.C.*, 16 FCC Rcd
    7584, 7585 (Enf. Bur. 2001) (both canceling a forfeiture proposed
    for failure to post an antenna structure registration number because
    the tower was voluntarily registered).

[^24]: ^?^ *See* *Streamlining the Commission's Antenna Structure
    Clearance Procedure and Revision of Part 17 of the Commission's
    Rules Concerning Construction, Marking and Lighting of Antenna
    Structures*, 11 FCC Rcd 4272 4279 (1995) ("*Streamlining*").

[^25]: ^?^ Antenna structure owners were required to register existing
    antenna structures during a two-year filing period between July 1,
    1996 and June 30, 1998. *Streamlining*, 11 FCC Rcd at 4281.
    Subsequent to the expiration of the filing period, the Commission
    staff issued a Public Notice warning antenna structure owners to
    register any unregistered antenna structures subject to our
    requirements immediately or face possible monetary forfeitures or
    other enforcement action. *Public Notice,* "No‑Tolerance Policy
    Adopted for Unregistered Antenna Structures*,*" 1999 WL 10060 (WTB
    rel. January 13, 1999). In addition, in June and July 1999, the
    Wireless Telecommunications Bureau sent letters to licensees
    informing them that the Commission had no valid registration for
    their antenna site and that owners and, to the extent they were
    liable, tenants could face monetary forfeitures for structures that
    remained unregistered.

[^26]: On March 12, 2002, the FCC's Chicago, Illinois Field Office
    issued an NOV to AT&T Wireless for failing to post the ASR number on
    or near the base of an antenna structure (ASR No. 1045450) located
    in Gary, Indiana. (File No. EB-02-CH-116). On April 2, 2002, the
    FCC's Anchorage, Alaska Resident Agent Office ("Anchorage Office")
    issued an NOV to AT&T Wireless for failing to notify the Commission
    of completion of construction of an antenna structure (ASR No.
    1223858) located in Willow, Alaska. (File No. EB-02-AN-018). On
    April 8, 2002, the FCC's San Francisco Office issued an NOV to AT&T
    Wireless for failing to post the ASR number on or near the base of
    an antenna structure (ASR No. 1014135) located in Rio Vista,
    California. (File No. EB-02-SF-137). These NOVs were issued too late
    to be included in the *NAL*.

[^27]: On August 16, 2002, the Anchorage Office issued an NOV to AT&T
    Wireless for failing to post the ASR number on or near the base of
    an antenna structure (ASR No. 1222996) and to notify the Commission
    of completion of construction of an antenna structure located in
    Kenai, Alaska. (File No. EB-02-AN-072). On August 19, 2002, the
    Denver Office issued an NOV to AT&T Wireless for failing to paint
    the coaxial cable attached to the face of an antenna structure (ASR
    No. 1032069) located in Colorado Springs, Colorado (File No.
    EB-02-DV-117).

[^28]: ^?^ *See* 47 C.F.R. § 1.1914.