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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-KC-504
Pinnacle Towers Inc. ) NAL/Acct. No.200232560020
Owner of Antenna Structure )
#1053157 in Des Moines, Iowa ) FRN 0006-1561-11
Sarasota, Florida )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 22, 2002
By the Enforcement Bureau, Kansas City Office:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Pinnacle Towers Inc. (``Pinnacle''), owner of
antenna structure #1053157, apparently liable for a forfeiture in
the amount of twenty thousand dollars ($20,000) for willful and
repeated violation of Section 17.50 of the Commission's Rules
(``Rules'').1 Specifically, we find Pinnacle Towers Inc.
apparently liable for failure to clean and repaint its antenna
structure to maintain good visibility.
2. On June 24, 2002, an agent of the Commission's Kansas
City Field Office inspected Pinnacle's antenna structure
registration number 1053157 located in Des Moines, Iowa. At the
time of inspection, black cabling attached to the outside of the
lower half to two-thirds of the structure covered the painted
metal tower reducing visibility of the structure.
3. Antenna structure registration #1053157, owned and
registered to Pinnacle, specifies lighting and painting for this
structure that includes requirements that the structure be
painted with alternating aviation orange and white bands.
Section 17.50 of the Rules requires antenna structures requiring
painting be cleaned or repainted as necessary to maintain good
visibility. The antenna structure owner is responsible for
maintaining the structure's painting.2 On June 24, 2002,
Pinnacle's antenna structure #1053157 had black cabling on the
tower face obscuring the orange and white paint and causing the
structure to have an overall dark appearance on the lower half to
two-thirds of the structure.
4. Pinnacle has a history of non-compliance with the
Commission's antenna structure painting requirements on other
Pinnacle-owned antenna structures. The Commission issued to
Pinnacle three Notices of Violation (``NOV'') for violating
antenna structure painting requirements on other Pinnacle antenna
structures on January 11, 2001, February 1, 2001, and March 16,
2001. All three NOVs were issued for violation of Section 17.50
of the Rules due to cabling attached to the antenna structure
that obscured the structure's required obstruction markings.
5. Based on the evidence before us, we find Pinnacle
willfully3 and repeatedly4 violated Section 17.50 of the Rules by
failing to repaint the antenna structure in accordance with the
painting specifications associated with antenna structure
6. Pursuant to Section 1.80(b)(4) of the Rules,5 the base
forfeiture amount for failure to comply with prescribed lighting
and marking is $10,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set
forth in Section 503(b)(2)(D) of the Communications Act of 1934,
as amended (``Act''), which include the nature, circumstances,
extent, and gravity of the violation, and with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require.6 Considering the entire record, including Pinnacle's
history of similar violations, and applying the factors listed
above, an increase in the base forfeiture amount is warranted.
Therefore, this case warrants a forfeiture of $20,000.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Rules,8 Pinnacle Towers Inc. is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of twenty thousand
dollars ($20,000) for willful and repeated violation of Section
17.50 of the Rules by failing to clean and repaint its antenna
structure to maintain good visibility.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Pinnacle Towers Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. and FRN referenced above. Requests for payment of
the full amount of this NAL under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.9
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE NAL/Acct.
No. referenced above.
11. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
12. IT IS FURTHER ORDERED THAT a copy of this NAL shall be
sent by regular mail and Certified Mail Return Receipt Requested
to Pinnacle Towers Inc., 301 N. Cattlemen Rd, 3rd Floor,
Sarasota, Florida 34232.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
Kansas City Office, Enforcement Bureau
1 47 C.F.R. § 17.50.
2 See 47 C.F.R. § 17.6(a).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
4 The term ``repeated,'' when used with reference to the
commission or omission of any act, ``means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.'' 47 U.S.C. §
5 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.