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 Federal  Communications  Commission  FCC  02-  294 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 AT&  T  Wireless  Services,  Inc. 
 Washington,  DC 


 )  ) 
 )  ) 
 )  ) 
 )  ) 


 File  No.  EB-  02-  SD-  012 
 NAL/  Acct.  No.  200232940002 
 FRN  #  0006-  1660-  29 


 FORFEITURE  ORDER 
 Adopted:  October  29,  2002  Released:  October  31,  2002 
 By  the  Commission: 
 I.  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  Commissions  Rules  (  Rules)  relating  to  antenna  structure 
 construction,  marking  and  lighting.  2  The  noted  violations  involve  AT&  T  Wirelesss  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 
 II.  BACKGROUND 
 2.  The  Commissions  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 


 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). 
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 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  Commissions  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  FAAs  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 


 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. 
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 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  Wirelesss  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  Commissions  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  Commissions  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  Wirelesss  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  Wirelesss  Challenges  to  Violations 
 7.  AT&  T  Wireless  disputes  a  number  of  the  violations  cited  in  the  NAL.  We  address  AT&  T  Wirelesss  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  Commissions  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) 


 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). 
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 citing  AT&  T  Wireless  for  failure  to  conform  to  the  FAAs  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  Wirelesss  arguments.  AT&  T  Wirelesss  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  Commissions  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 


 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  FAAs  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. 
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 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  Commissions  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  Commissions  view  that  the  statute  of  limitations  is  satisfied  in  this  case  because  the  violation  was  continuing  undermines  Congresss  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  towers  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  Commissions  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  Wirelesss  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  Wirelesss  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 
 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). 
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 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  Wirelesss  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  Commissions  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  FAAs  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  Commissions  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  Offices  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 
 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. 
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 forfeiture.  AT&  T  Wirelesss  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  Commissions  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  towers  ASR.  On  November  19,  2001,  the  Denver 
 Office  issued  an  NOV  citing  AT&  T  Wireless  for  failure  to  conform  to  the  FAAs  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  FAAs  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 


 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  Commissions  Antenna  Structure  Clearance  Procedure  and  Revision  of  Part  17  of  the 
 Commissions  Rules  Concerning  Construction,  Marking  and  Lighting  of  Antenna  Structures,  11  FCC  Rcd  4272  4279  (1995)  (  Streamlining). 
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 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  FCCs  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. 
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 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  Wirelesss  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  Commissions  decision  in  the  NAL  to  triple  the  aggregate  base  forfeiture  amount  was 


 unwarranted.  First,  AT&  T  Wireless  states  that  the  Commissions  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  Commissions 
 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  Wirelesss  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  Commissions  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  Wirelesss  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  Wirelesss  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 


 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. 
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 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  Wirelesss  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  Wirelesss  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  Wirelesss  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 


 Commissions  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  Wirelesss  continuing  violations  evince  a  pattern  of  non-  compliance  with  and 
 26  On  March  12,  2002,  the  FCCs  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  FCCs  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  FCCs 
 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). 
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 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  Wirelesss  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 


 28  See  47  C.  F.  R.    1.1914. 
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