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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-DL-696
Martin D. Marshall ) NAL/Acct. No.200332500003
Owner of Antenna Supporting )
Structure 1220001 located in ) FRN 0003-7544-54
Nacogdoches, Texas )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 19, 2003
By the Enforcement Bureau, Dallas Office:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Martin D. Marshall (``Mr.
Marshall''), owner of antenna supporting structure # 1220001
located in Nacogdoches, Texas, apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000)
for willful violation of Section 17.50 of the Commission's
Rules (``Rules'').1 Specifically, we find Mr. Marshall
apparently liable for failure to clean or repaint his
antenna structure as often as necessary to maintain good
2. On October 23, 2002, the antenna structure bearing
FCC antenna structure registration (``ASR'') number 1220001
and located at or near geographic coordinates 31° 34' 58''N
/ 094° 39' 59''W (incorrectly registered at geographical
coordinates 31° 34' 51''N / 094° 40' 16''W) in Nacogdoches,
Texas, was inspected by an agent of the Commission's Dallas
Field Office (``Dallas Office''). The Commission's ASR
database showed this structure was registered to Mr.
Marshall and that the tower required marking and lighting.
At the time of the inspection the paint on the tower was
badly faded and was peeling, significantly reducing
visibility of the structure to the extent that, during
daylight hours, the bands could not be readily distinguished
at approximately one fourth of a mile. Additionally, black
cabling on the outside of the structure covered the painted
metal tower further reducing visibility of the structure so
that the bands were not readily distinguishable at closer
distances to the tower.
3. On October 28, 2002, the agent interviewed the
owner, Mr. Marshall, who stated he was aware that the tower
was in need of painting and had been in contact with tower
4. Section 17.50 of the Rules states that antenna
structures requiring painting under this part shall be
cleaned or painted as often as necessary to maintain good
visibility. Mr. Marshall is the registered owner of antenna
structure number 1220001 and is responsible for maintaining
the structure's marking.2 The ASR for this structure
requires that the structure be painted. On October 23,
2002, Mr. Marshall failed to maintain good visibility of his
antenna structure number 1220001 located in Nacogdoches,
5. Based on the evidence before us, we find Martin D.
Marshall willfully3 violated Section 17.50 of the Rules by
failing to clean or repaint the antenna structure as often
as necessary to maintain good visibility of the antenna
6. Pursuant to Section 1.80(b)(4) of the Rules,4 the
base forfeiture amount for failure to comply with the
prescribed 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.5
Considering the entire record and applying the factors
listed above, this case warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,6 and Sections 0.111, 0.311 and
1.80 of the Rules,7 Martin D. Marshall is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for willful violation of
Section 17.50 of the Rules by failing to clean or repaint
the antenna structure as often as necessary to maintain good
visibility of the antenna structure markings.
8. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Martin D. Marshall SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
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. 20554.8
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. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
13. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to Martin D. Marshall, P.O. Box 532,
Etoile, Texas 75944.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
Dallas 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
4 47 C.F.R. § 1.80(b)(4).
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.