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 Federal  Communications  Commission  DA  04-  3205 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Northern  Electric  Cooperative  Antenna  Structure  at  Approximately 
 N  45  27  41,  W  98  20  15,  Bath,  South  Dakota 


 )  ) 
 )  ) 
 )  ) 


 File  No.  EB-  02-  PL-  157 
 NAL/  Acct.  No.  200332420001 
 FRN:  0002-  4325-  40 


 FORFEITURE  ORDER 
 Adopted:  October  13,  2004  Released:  October  15,  2004 
 By  the  Assistant  Chief,  Enforcement  Bureau: 


 I.  INTRODUCTION 
 1.  In  this  Forfeiture  Order  (  Order),  we  issue  a  monetary  forfeiture  in  the  amount  of  three  thousand  dollars  ($  3,000)  to  Northern  Electric  Cooperative  (  Northern),  the  owner  of  an  antenna 


 structure  located  at  approximately  N  45  27  41,  W  98  20  15,  in  Bath,  South  Dakota,  for  willful  and  repeated  violation  of  Section  17.4(  a)  of  the  Commissions  Rules  (  Rules).  1  The  noted  violation 
 involves  Northerns  failure  to  register  its  antenna  structure. 
 2.  On  April  18,  2003,  the  Commissions  St.  Paul  District  Office  (  St.  Paul  Office)  issued  a  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL)  to  Northern  for  a  forfeiture  in  the  amount  of  three 


 thousand  dollars  ($  3,000).  2  Northern  filed  a  response  to  the  NAL  on  May  1,  2003. 
 II.  BACKGROUND 
 3.  On  December  3  and  4,  2002,  an  agent  from  the  St.  Paul  Office  inspected  a  painted  and  lighted  antenna  structure  located  at  the  rear  of  Northerns  building  on  Route  12,  Bath,  South  Dakota. 


 The  agent  measured  the  coordinates  of  the  structure  using  a  Global  Positioning  System  (GPS)  receiver.  The  agent  found  no  Commission  records  that  the  antenna  structure  had  been  registered. 


 4.  On  January  24,  2003,  the  St.  Paul  Office  issued  a  Letter  of  Inquiry  (LOI)  to  Northern,  asking,  inter  alia,  for  information  pertaining  to  the  apparently  unregistered  tower  at  the  rear  of 
 Northerns  building.  Northern  responded  on  March  13,  2003,  stating  that  the  antenna  structure  had  a  height  of  192  above  ground  level,  but  that  in  October  2002  an  antenna  was  added  to  the  structure  that 
 increased  its  height  to  211  above  ground  level. 
 5.  On  April  18,  2003,  the  St.  Paul  Office  issued  an  NAL  to  Northern  for  three  thousand  dollars  ($  3,000)  for  willful  and  repeated  violation  of  Section  17.4(  a)  of  the  Commissions  Rules 


 (  Rules).  Northern  responded  to  the  NAL  on  May  1,  2003. 
 1  47  C.  F.  R.    17.4(  a). 
 2  Notice  of  Apparent  Liability  for  Forfeiture,  NAL/  Acct.  No.  200332420001  (released  April  18,  2003). 
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 6.  Northern  states  that  it  believed  that  the  antenna  structure  was  exempt  from  the  Commissions  registration  requirement  because  the  structure  itself  was  less  than  200  feet  in  height. 
 Northern  permits  Station  WB0TPF  3  to  use  the  antenna  structure,  and  states  that  it  was  Station  WB0TPF  that  added  the  antenna  that  increased  the  height  of  the  structure  to  211  feet.  Northern  asserts  that  after 
 the  St.  Paul  Office  agents  inspection,  it  became  aware  that  the  antenna  structure  required  registration  with  the  Federal  Aviation  Administration  (  FAA)  and  the  Commission.  Northern  indicates  that  air 
 safety  was  not  viewed  as  a  problem  with  regard  to  the  211  foot  tower  because  of  the  other  large  guyed  towers  in  the  area. 


 7.  Northern  argues  that  it  expected  Station  WB0TPF  to  notify  Northern  if  the  height  of  the  antenna  structure  necessitated  registration.  Northern  contends  that  the  Commission  erred  in  identifying 
 its  actions  as  willful  and  repeated,  and  that  the  fine  was  unjustly  assessed.  4  Northern,  apparently  believing  that  the  proposed  forfeiture  would  be  owed  by  Station  WB0TPF,  argues  that  Station  WB0TPF 
 should  not  be  assessed  a  fine  for  putting  up  an  antenna  that  benefits  the  community,  and  asks  that  the  forfeiture  be  cancelled.  Northern  states  that  it  will  register  the  tower. 


 III.  DISCUSSION 
 8.  The  NAL  assessed  the  proposed  forfeiture  amount  in  this  case  in  accordance  with  Section  503(  b)  of  the  Act,  5  Section  1.80  of  the  Rules,  6  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)  (  Policy  Statement).  In  examining  Northerns  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  such  other  matters  as  justice  may  require.  7 
 9.  Section  503  of  the  Communications  Act  of  1934,  as  amended  (  Act),  8  authorizes  the  Commission  to  impose  forfeitures  for  willful  and/  or  repeated  violations  of  applicable  statutory  or 


 regulatory  requirements.  Specifically,  Sections  503(  b)(  1)(  A)  and  (B)  of  the  Act  provide  that  any  party  who  willfully  and/  or  repeatedly  violates  any  term  or  condition  of  a  Commission  issued  license, 
 permit,  certification,  or  other  authorization,  or  any  provision  of  the  Act,  or  any  of  the  Commissions  Rules,  shall  be  liable  for  a  forfeiture  penalty. 


 10.  The  Act  defines  willful  as  the  conscious  and  deliberate  commission  or  omission  of  an  act,  irrespective  of  any  intent  to  violate  the  law.  Consistent  with  Congressional  intent,  the  Commission 
 has  interpreted  willful  in  forfeiture  proceedings  to  mean  actions  or  omissions  that  are  committed  knowingly  (i.  e,  that  a  violator  intended  to  commit  the  act  or  omission  that  was  found  to  have  violated  a 
 statutory  and/  or  regulatory  provision).  9 
 11.  The  Act  defines  repeated  as  the  commission  or  omission  of  such  act  more  than  once 
 3  Station  WB0TPF  is  the  Ham  Radio  Club  that  uses  the  antenna  structure  for  the  SKYWARN  weather  storm 
 warning  system.  4 
 Northern  Response  at  2.  5 
 47  U.  S.  C.    503(  b).  6 
 47  C.  F.  R.    1.80.  7 
 47  U.  S.  C.    503(  b)(  2)(  D).  8 
 47  U.  S.  C.    503.  9 
 See  Southern  California  Broadcasting  Co.,  6  FCC  Rcd  4387,  4388    5  (1991)  recon.  denied,  7  FCC  Rcd  3454  (1992). 
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 or,  if  such  commission  or  omission  is  continuous,  for  more  than  one  day.  10 
 12.  Section  17.4(  a)  of  the  Rules  states  that  the  owner  of  an  antenna  structure  that  requires  notice  of  proposed  construction  to  the  Federal  Aviation  Administration  (  FAA),  must  also  register  the 


 structure  with  the  Commission.  11  Northern  concedes  that  it  is  the  owner  of  this  antenna  structure.  Northerns  antenna  structure  height  exceeded  200  feet  after  Northerns  permittee  added  an  antenna. 
 Accordingly,  Northern  was  required  to  give  notice  to  the  FAA,  and  register  the  structure  with  the  Commission.  We  note  that  in  its  response,  Northern  states  that  it  was  aware  that  the  addition  of  an 
 antenna  made  the  antenna  structure  taller  than  200  feet. 
 13.  The  Commission  holds  the  owner  of  an  antenna  structure  primarily  responsible  for  awareness  of  and  compliance  with  its  Rules.  12  In  this  case,  it  appears  that  Northern  erroneously 


 assumed  that  its  permittee  was  responsible  for  any  tower  registration  matters.  In  fact,  Northern,  as  the  owner  of  the  tower,  is  the  responsible  party.  It  is  well  established  that  mistake  or  inadvertence  resulting 
 in  a  rule  violation  does  not  exonerate  the  tower  owner  and  the  violation  is  considered  to  be  willful.  13  Accordingly,  we  conclude  that  it  was  Northerns  responsibility  to  register  the  antenna  structure  when  its 
 permittee  added  an  antenna  that  increased  the  structures  height  to  exceed  200  feet.  Northerns  failure  to  register  the  tower  is  significant;  the  Commission  has  repeatedly  found  that  registration  of  towers  is  of 
 utmost  importance  in  the  interests  of  public  safety.  14 
 14.  Section  303(  q)  of  the  Act  requires  the  tower  owner  to  maintain  painting  and  lighting  of  the  tower  as  the  Commission  prescribes.  The  Commissions  requirement  of  tower  registration  is  integral 


 to  its  oversight  of  all  tower  owners  compliance  with  painting  and  lighting  specifications.  Northern  concedes  that  its  antenna  structure  was  unregistered  from  the  time  that  its  permittee  added  an  antenna. 
 Commission  records  indicate  that  to  date,  and  notwithstanding  its  promise  to  do  so,  Northern  still  has  not  registered  the  211  foot  antenna  structure.  In  view  of  this  ongoing  failure  on  Northerns  part,  we  require 
 that  it  provide  a  report  to  the  Enforcement  Bureau  showing  that  its  structure  located  at  approximately  N  45  27  41,  W  98  20  15,  is  in  compliance  with  the  Commissions  Rules  and  further  showing  its  plan 
 for  maintaining  future  compliance.  This  report  shall  be  submitted  within  30  days  of  the  release  date  of  this  Order. 


 15.  We  have  examined  Northerns  response  to  the  NAL  pursuant  to  the  statutory  factors  above,  and  in  conjunction  with  the  Policy  Statement  as  well.  As  a  result  of  our  review,  we  conclude  that 
 Northern  willfully  and  repeatedly  violated  Section  17.4  of  the  Rules,  and  we  find  no  basis  for  rescinding  or  reducing  the  $3,000  forfeiture  for  this  violation. 


 IV.  ORDERING  CLAUSES 
 16.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Section  503(  b)  of  the  Act,  and  Sections  0.111,  0.311  and  1.80(  f)(  4)  of  the  Rules,  15  Northern  Electric  Cooperative,  owner  of  the  antenna  structure 


 10  Id. 
 11  47  C.  F.  R.    17.7(  a). 
 12  See,  e.  g.  Eure  Family  Limited  Partnership,  17  FCC  Rcd  21861,  21863-  64    6-  7  (2002). 
 13  Southern  California  Broadcasting  Company,  6  FCC  Rcd.  4387  (1991)(  citing  Vernon  Broadcasting,  Inc.,  60  RR2d 
 1275,  1277  (1986);  Fay  Neel  Eggleston,  19  FCC2d  829  (1969)).  See  also  PBJ  Communications  of  Virginia,  Inc.,  7  FCC  Rcd  2088  (1992);  Standard  Communications  Corp.,  1  FCC  Rcd  358  (1986);  Triad  Broadcasting  Co.,  Inc.,  96 


 FCC  2d  1235,  1242  (1984).  14 
 AT&  T  Wireless  Services,  Inc.  16  FCC  Rcd.  814,  815  (Enf.  Bur.  2001),  17  FCC  Rcd.  7891,  7896  (2002);  SpectraSite  Communications,  Inc.  17  FCC  Rcd.  7884,  7888  (2002). 


 15  47  C.  F.  R.    0.111,  0.  311,  1.80(  f)(  4). 
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 located  at  approximately  N  45  27  41,  W  98  20  15,  in  Bath,  South  Dakota,  IS  LIABLE  FOR  A  MONETARY  FORFEITURE  in  the  amount  of  three  thousand  dollars  ($  3,  000)  for  its  violation  of 
 Section  17.4(  a)  of  the  Rules. 
 17.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Section  303(  q)  of  the  Act,  Northern  must  submit  the  reports  described  in  paragraph  14  no  later  than  thirty  (30)  days  from  the  release  date  of 


 this  Forfeiture  Order  to:  Federal  Communications  Commission,  Enforcement  Bureau,  Spectrum  Enforcement  Division,  445  12  th  Street,  S.  W.,  Washington,  D.  C.  20554,  Attention:  Susan  Magnotti. 


 18.  Payment  of  the  forfeiture  must  be  made  by  check  or  similar  instrument,  payable  to  the  order  of  the  Federal  Communications  Commission.  The  payment  must  include  the  NAL/  Acct.  No.  and 
 FRN  No.  referenced  above.  Payment  by  check  or  money  order  may  be  mailed  to  Forfeiture  Collection  Section,  Finance  Branch,  Federal  Communications  Commission,  P.  O.  Box  73482,  Chicago,  Illinois 
 60673-  7482.  Payment  by  overnight  mail  may  be  sent  to  Bank  One/  LB  73482,  525  West  Monroe,  8th  Floor  Mailroom,  Chicago,  IL  60661.  Payment  by  wire  transfer  may  be  made  to  ABA  Number 
 071000013,  receiving  bank  Bank  One,  and  account  number  1165259. 
 19.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Order  shall  be  sent  by  First  Class  and  Certified  Mail  Return  Receipt  Requested  to  Northern  Electric  Cooperative,  West  Highway  12,  Bath, 


 South  Dakota  57427. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 George  R.  Dillon  Assistant  Chief,  Enforcement  Bureau 
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