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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554



In the Matter of                )       
                                )       
Rio Grande Transmission, Inc.   )       File No. EB-00-DV-426
                                )       
Owner of Antenna Structure 1003282      )    NAL/Acct.        No. 

20013280-0001
Apache Springs, New Mexico      )



           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                             Released: April 26, 
2001

By the District Director, Denver Office, Enforcement Bureau:


                        I.  Introduction

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
("NAL"), we  find  that  Rio  Grande  Transmission,  Inc.  (``Rio 
Grande''),  has  apparently  violated   Section  303(q)  of   the 
Communications Act of 1934 (``Act'') as amended,1 Sections  17.23 
and 17.57 of the Commission's Rules2 (the ``Rules'') for  failure 
to comply with painting and lighting specifications on an antenna 
structure and failure to notify  the Commission immediately of  a 
change  in  structure  height.   We  conclude  that  Rio   Grande 
Transmission, Inc., is apparently liable for a forfeiture in  the 
amount of thirteen thousand dollars ($13,000).


                         II.  Background

     2.   Rio Grande  was  the  owner  of  an  antenna  structure 
located 8 miles south of Apache Springs and  mile west of  State 
Highway 84 in New Mexico, located at north latitude 35 19' 20'', 
west longitude  105  09' 23'',  antenna  structure  registration 
number 1003282.  The  structure exceeded 200  feet in height  and 
was required to  be painted  and illuminated  in accordance  with 
Section 17.23 of the Rules.  Specifically, FCC Form 854R, Antenna 
Structure Registration ("ASR"), indicated  that the painting  and 
lighting was  to comply  with  Chapters  3, 4,  5, and  9 of  FAA 
Advisory Circular 70/7460-1G.

     3.   On July 19,  2000, at approximately  9:10 a.m., an  FCC 

Agent from  the Denver  Office conducted  an inspection  of  this 

structure.  The  inspection was  conducted to  ensure  compliance 

with the  FCC  painting  and lighting  requirements  and  antenna 

structure registration.   During  this  inspection,  the  antenna 

structure number was not found posted on or near the base of  the 

structure.  It  was  also observed  that  the structure  was  not 

painted and had no lighting.
 
     4.   On September  6,  2000,  the Denver  Office  issued  an 

Official Notice of Violation (``NOV'') to Rio Grande, 5000  Plaza 

on the Lake, Suite 200, Austin, TX 78746, for failure to post the 

antenna structure  registration and  failure to  comply with  the 

painting and lighting  specifications indicated on  the ASR.   On 

September 13, 2000, the Denver Office received  the September  6, 

2000, NOV  returned  "Not  Deliverable  as  Addressed  Return  to 

Sender".  On September 14, 2000, an Agent with the Denver  Office 

contacted Mr. Allen Zamorsky, with Rio Grande, and confirmed that 

the address of record  with the Commission  was not correct,  and 

that  Rio   Grande  had   not  updated   the  antenna   structure 

registration ownership information.

     5.   On September  21, 2000,  the Denver  Office issued  Rio 

Grande an  Official NOV,  for failure  to notify  the  Commission 

using FCC Form 854 regarding the change in ownership information.  

A separate Notice was also issued, granting an extension of  time 

to reply to the  NOV issued on September  6, 2000.  Responses  to 

both NOV's were required by October 6, 2000.

     6.   A response to  the NOV's, dated  October 20, 2000,  was 

received on October 27, 2000, from  Marie E. Casar, Right of  Way 

and Permitting  Specialist for  Broadwing3, Austin,  Texas.   The 

response indicated that Rio Grande removed the uppermost  antenna 

from the top  of the  structure in October,  2000, subsequent  to 

receipt of the Commission's NOV's, and that painting and lighting 

specifications no longer applied since the structure was now less 

than 200 feet.

     7.   Broadwing sent the Denver Office a follow-up  response, 

dated October 30, 2000, reaffirming that the tower height was now 

195 feet, and "no painting or lighting is required at this site".  

Pictures were provided of the structure before and after  removal 

of the top antenna.

     8.   Rio Grande  sold the  subject structure  to L  B  Tower 

Company, LLC in November, 2000.   However, this does not  absolve 

Rio Grande  of the  potential hazard  to air  navigation by  non-

compliance with the Commission's Rules.


                        III.  Discussion

     9.   The Commission's antenna  structure painting,  lighting 
and registration requirements operate in concert with the Federal 
Aviation Administration's  (``FAA'') regulations  to ensure  that 
antenna structures  do not  present  hazards to  air  navigation.  
Generally,  antenna  structures  located  close  to  airports  or 
greater than 200  feet in height  require painting, lighting,  or 
both to ensure air safety.

     10.  Section 303(q) of  the Act  requires antenna  structure 

owners to  maintain  the  painting  and/or  illumination  of  the 

structure as prescribed by the Commission.  Section 17.23 of  the 

Rules required the  antenna structure to  conform with the  FAA's 

painting and  lighting specifications.   FCC Form  854R,  Antenna 

Structure Registration, required the antenna structure in  Apache 

Springs, New Mexico, to comply with  FAA Chapters 3, 4, 5, and  9 

of circular 70/7460-1G.
     11.  Any alterations made to the structure must be  approved 

by the  FAA in  accordance with  Section 17.23  and any  approved 

changes in structure height must be filed immediately on FCC Form 

854 in accordance with Section 17.57.

     12.  The responses, dated October 20, 2000, and October  30, 

2000, from Broadwing, signed  by Ms. Casar,  states that the  top 

antenna was taken down, thus the overall structure height was 195 

feet.  The October  30, 2000, response,  states that the  overall 

structure height  is 195  feet, ``and  therefore no  painting  or 

lighting is required at this site''.  Therefore, by inference and 

the photos provided,  Rio Grande  admits that  the structure  was 

over   200   feet   .    All   Antenna   Structure   Registration 

specifications are  effective until  modified or  removed at  the 

request  of  the  tower  owner  and  subsequent  action  by   the 

Commission.  Corrective action taken after the identification  of 

a violation does not absolve  the subject of potential  penalties 

or of the potential  hazard to air navigation  that existed as  a 

result of the violation.

     13.  Based on  the  evidence before  us,  we find  that  Rio 

Grande willfully4 violated Section 303(q) of the Act and  Section 

17.23 of the Commission's Rules by failing to paint and light the 

antenna  structure.   In  addition,  we  find  that  Rio   Grande 

willfully violated  Section 17.57  of the  Commission's Rules  by 

failing to notify  the Commission  immediately of  any change  in 

structure height.  The  Commission's Forfeiture Policy  Statement 

and Amendment of  Section 1.80  of the Rules  to Incorporate  the 

Forfeiture Guidelines,  12 FCC  Rcd 17087,  17113 (1997),  recon. 

denied, 15  FCC Rcd  303(1999) (``Policy  Statement''), sets  the 

base forfeiture  amount at  ten  thousand dollars  ($10,000)  for 

prescribed lighting  and  three  thousand  dollars  ($3,000)  for 

failure to  file  required  forms.   In  assessing  the  monetary 

forfeiture amount,  we  must  take  into  account  the  statutory 

factors set  forth in  Section 503(b)(2)(D)  of the  Act,5  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.  Applying the  Policy 

Statement and  the  statutory factors  to  the instant  case,  we 

believe that a ten thousand dollar ($10,000) monetary  forfeiture 

is warranted because  of the potential  hazard to air  navigation 

and a three thousand ($3000)  monetary forfeiture for failure  to 

file required forms,  for a  total of  thirteen thousand  dollars 

($13,000). 


                      IV.  ORDERING CLAUSES

     14.  Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 

503(b) of  the Act  and Sections  0.111, 0.311  and 1.80  of  the 

Rules6, Rio Grande Transmission, Inc., is hereby NOTIFIED of this 

APPARENT LIABILITY FOR  A FORFEITURE  in the  amount of  thirteen 

thousand dollars ($13,000) for willfully violating Section 303(q) 

of the  Act and  Sections  17.23 and  17.57 of  the  Commission's 

Rules.

     15.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 

the Commission's Rules, within thirty days of the release date of 

this NOTICE OF APPARENT LIABILITY, Rio Grande Transmission, Inc., 

SHALL PAY the  full amount  of the proposed  forfeiture or  SHALL 

FILE a written statement seeking reduction or cancellation of the 

proposed forfeiture.

     16.  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. 20013280-0001. 

     17.  A response  regarding  this  matter, if  any,  must  be 

mailed to Federal Communications Commission, Enforcement  Bureau, 

Technical and  Public Safety  Division,  445 12th  Street,  S.W., 

Washington,  D.C.  20554  and  MUST  INCLUDE  THE  NAL/Acct.  No. 

20013280-0001. 

     18.  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 

submitted.

     19.  Requests for payment of the full amount of this  Notice 

of Apparent Liability  under an installment  plan should be  sent 

to: Chief,  Revenue and  Receivable  Operations Group,  445  12th 

Street, S.W., Washington, D.C. 20554.7

     20.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 

APPARENT LIABILITY shall be sent by Certified Mail/Return Receipt 

Requested to Rio Grande  Transmission, Inc., 1835-B Kramer  Lane, 

Austin, Texas 78758.


                                FEDERAL            COMMUNICATIONS 

COMMISSION




                                Leo E. Cirbo
                                District Director, Denver Office
_________________________

1 47 U.S.C.  303(q).

2 47 C.F.R.  17.23 and 17.57.

3 According to Ms. Casar, Rio Grande Transmission, Inc., is a 
subsidiary of Broadwing Communications, which is a subsidiary of 
Broadwing.
4 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to 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 (1991).

5 47 U.S.C.  503(b).

6 47 C.F.R.  0.111, 0.311, and 1.80.

7 See 47 C.F.R.  1.1914.