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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. 

200132800001                    
Apache Springs, New Mexico      )
                                
                        FORFEITURE ORDER

Adopted:  September 24, 2001            Released:  September  26, 
2001

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary forfeiture in the amount of thirteen thousand  dollars 
  ($13,000)  to Rio  Grande Transmission,  Inc. (``Rio  Grande'') 
  for willful violation  of Section 303(q) of the  Communications 
  Act  of 1934,  as amended  (``Act''),1 and  Sections 17.23  and 
  17.57  of  the  Commission's  Rules  (``Rules'').2   The  noted 
  violations  involve  Rio   Grande's  failure  to  comply   with 
  painting  and lighting  specifications on  its Apache  Springs, 
  New  Mexico antenna  structure and  its failure  to notify  the 
  Commission immediately of a change in the height of the  Apache 
  Springs antenna structure.

2.        On April 26,  2001, the  Commission's Denver,  Colorado 
  Field Office  (``Denver Office'') issued  a Notice of  Apparent 
  Liability  for  Forfeiture  (``NAL'')  to  Rio  Grande  for   a 
  forfeiture  in   the  amount  of   thirteen  thousand   dollars 
  ($13,000).3     Broadwing   Communications    Services,    Inc. 
  (``Broadwing''), Rio Grande's parent company, filed a  response 
  to the NAL on June 4, 2001.

                         II.  BACKGROUND

3.        On July 19,  2000, at approximately  9:10 a.m., an  FCC 
  agent from  the Denver  Office inspected  an antenna  structure 
  located in  Apache Springs, New  Mexico with antenna  structure 
  registration (``ASR'') number  1003282, which at that time  was 
  owned  by Rio  Grande.4  At  the time  of the  inspection,  the 
  tower exceeded  200 feet in height  and therefore was  required 
  to be painted and illuminated in accordance with Section  17.23 
  of the Rules.   Specifically, the ASR for this tower  indicated 
  that the painting and lighting were to comply with Chapters  3, 
  4, 5  and 9 of  FAA Advisory Circular  70/7460-1G.  During  the 
  inspection,  the agent  observed  that the  tower  was  neither 
  painted nor lighted.  In addition, the agent observed that  the 
  ASR number  was not posted on or  near the base of the  antenna 
  structure.

4.        On September 6, 2000, the Denver Office issued a Notice 
  of  Violation (``NOV'')  to Rio  Grande for  failure to  comply 
  with the painting and lighting specifications indicated on  the 
  ASR and failure to  post the ASR number on or near the base  of 
  the antenna structure.  On September 13, 2000, the U.S.  Postal 
  Service  returned  the  NOV  to  the  Denver  Office  with  the 
  notation ``Not Deliverable  as Addressed - Return to  Sender.''  
  On  September  14,  2000,  an  agent  from  the  Denver  Office 
  contacted Rio Grande by telephone and learned that the  address 
  of record  for Rio Grande  on file with  the Commission was  no 
  longer  current  and  that  Rio  Grande  had  not  updated  its 
  ownership  information   to  reflect  the   new  address.    On 
  September 21,  2000, the Denver Office  issued a second NOV  to 
  Rio Grande  for failure  to notify  the Commission  of its  new 
  address using  FCC Form 854, and  resent the September 6,  2000 
  NOV.

5.        On October  27,  2000,  the Denver  Office  received  a 
  response to the NOVs from Broadwing.  The response stated  that 
  the  ASR number  had been  posted at  the base  of the  antenna 
  structure.  In addition, the response stated that painting  and 
  lighting  of the  tower were  no  longer required  because  Rio 
  Grande had  removed the uppermost antenna  from the top of  the 
  tower in October 2000, bringing the height of the structure  to 
  less than  200 feet.  On  October 30, 2000,  Broadwing sent  to 
  the Denver  Office a follow-up  response providing pictures  of 
  the  tower before  and after  removal of  the top  antenna  and 
  again stating  that no  painting or lighting  of the  structure 
  was required because the structure was now 195 feet in height.  

6.        On April 26, 2001, the Denver Office issued an NAL  for 
  a  forfeiture  in the  amount  of  $13,000 to  Rio  Grande  for 
  failure to  paint and  light the antenna  structure in  willful 
  violation of  Section 303(q) of  the Act and  Section 17.23  of 
  the  Rules and  failure to  notify the  Commission  immediately 
  using FCC  Form 854 of a  change in the  height of the  antenna 
  structure in willful  violation of Section 17.57 of the  Rules.  
  Having received a satisfactory response, the Denver Office  did 
  not include the other violations cited in the NOVs in the  NAL.  
  The Commission  received a response to  the NAL from  Broadwing 
  on June  4, 2001.5   Although Broadwing states  that it  ``does 
  not take  issue with nor disagree with  the facts relied on  by 
  the Commission  as a basis for  assessing the forfeiture,''  it 
  requests  rescission  of  the  $13,000  forfeiture.   Broadwing 
  states that it recently sold the majority of the assets of  six 
  microwave  companies that  it owned  at the  time the  NAL  was 
  issued,  including all  197 of  the microwave  towers owned  by 
  these  companies.6   Therefore,  Broadwing  asserts  that   the 
  forfeiture will  not serve  the purpose of  ensuring that  such 
  violations do not  reoccur in the future.  Broadwing also  asks 
  that  the Commission  take  into  account its  past  record  of 
  compliance with respect  to the 197 towers it owned,  asserting 
  that the  Commission has  never assessed  a forfeiture  against 
  Broadwing in connection with its operation of these towers.





                      III.      DISCUSSION

7.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the Act,7  Section 1.80  of 
  the Rules, 8  and The Commission's 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 
  Broadwing's response, 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.9

8.        Section 303(q) of  the Act  requires antenna  structure 
  owners to maintain painting and lighting of antenna  structures 
  as prescribed  by the Commission.  Section  17.23 of the  Rules 
  requires antenna structures to conform with the FAA's  painting 
  and lighting  specifications.  The ASR  for the Apache  Springs 
  tower indicated that  the painting and lighting were to  comply 
  with Chapters 3, 4,  5 and 9 of FAA Advisory Circular  70/7460-
  1G.   Section 17.57  of  the Rules  requires  the owner  of  an 
  antenna structure  to notify the  Commission immediately  using 
  FCC Form  854 upon any change  in structure height.   Broadwing 
  does not  dispute the facts of  this case as  set forth in  the 
  NAL.  Accordingly, we  find that Rio Grande willfully  violated 
  Sections 303(q) of the Act and Sections 17.23 and 17.57 of  the 
  Rules.10

9.        We  disagree  with   Broadwing's  assertion  that   the 
  forfeiture should be  rescinded because Broadwing has sold  all 
  of its towers and  the forfeiture therefore will not serve  the 
  purpose of ensuring that such violations do not reoccur in  the 
  future.   In   the  Policy   Statement,  we   noted  that   the 
  legislative  history of  Section 503  of the  Act  demonstrates 
  that  Congress  intended  that  forfeitures  serve  as  both  a 
  meaningful  sanction to  wrongdoers and  a deterrent  to  other 
  potential  violators.11   We believe  that  imposition  of  the 
  forfeiture  in  this  case  serves  both  of  these   important 
  purposes.

10.       Broadwing also asks that we take into account its  past 
  record of compliance with  respect to the 197 towers it  owned, 
  asserting  that we  have never  assessed a  forfeiture  against 
  Broadwing in connection with its operation of these towers.   A 
  search of  our records  indicates that  the Enforcement  Bureau 
  issued at least six other NOVs to Broadwing and its  subsidiary 
  companies for  tower-related violations between  June 21,  2000 
  and March  21, 2001.12  These violations  by Broadwing and  its 
  subsidiaries are  part of Broadwing's  violation record.   See, 
  e.g., Mega  Communications of St.  Petersburg, Licensee,  Inc., 
  DA 01-2036 (Enf.  Bur., released August 31, 2001); KGNT,  Inc., 
  16   FCC  Rcd   4656  (Enf.   Bur.,  2001);   Capstar   Limited 
  Partnership,  16 FCC  Rcd  901(Enf. Bur.,  2001).   Broadwing's 
  past violation record  precludes a determination that it has  a 
  history  of overall  compliance  with the  Commission's  Rules.  
  See, e.g., Crown  Communications, Inc., 15 FCC Rcd 21937  (Enf. 
  Bur., 2000).

11.       We  have  examined  Broadwing's  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 Broadwing  has failed  to provide  sufficient 
  justification  for   canceling  or   mitigating  the   proposed 
  forfeiture  amount.  Therefore,  we  affirm the  forfeiture  of 
  thirteen thousand dollars ($13,000).

                        IV.  ORDERING CLAUSES

12.       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,13 Rio  Grande Transmission,  Inc. IS  LIABLE FOR  A 
  MONETARY FORFEITURE in the amount of thirteen thousand  dollars 
  ($13,000) for willful  violations of Section 303(q) of the  Act 
  and Sections 17.23 and 17.57 of the Rules.

13.       Payment of the forfeiture shall  be made in the  manner 
  provided for  in Section 1.80  of the Rules  within 30 days  of 
  the  release of  this Order.   If the  forfeiture is  not  paid 
  within the  period specified, the case  may be referred to  the 
  Department  of  Justice  for  collection  pursuant  to  Section 
  504(a) of  the Act.14  Payment may be  made by mailing a  check 
  or  similar instrument,  payable to  the order  of the  Federal 
  Communications  Commission,   to  the  Federal   Communications 
  Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.   The 
  payment  should  note  the  NAL/Acct.  No.  referenced   above.  
  Requests for full  payment under an installment plan should  be 
  sent to: Chief,  Revenue and Receivables Operations Group,  445 
  12th Street, S.W., Washington, D.C. 20554.15

14.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be  sent  by   Certified  Mail  Return  Receipt  Requested   to 
  Broadwing Communications Services, Inc., 1122 Capital of  Texas 
  Highway  South,  Austin,  Texas  78746-6426,  Attn:   Larry  D. 
  Barnes.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

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

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

  3 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200132800001 (Enf. Bur., Denver Office, released April 26, 2001).

  4 Subsequent  to the dates of the  violations at issue in  this 
proceeding, Broadwing Communications  Services, Inc., the  parent 
company of Rio Grande Transmission, Inc., sold the Apache Springs 
antenna structure to LB Tower Company, LLC. 

  5 Broadwing's response to the NAL was untimely.  See 47  C.F.R. 
 1.80(f)(3).   Nevertheless,  we address  herein  the  arguments 
raised in the response.

  6 In addition to  Rio Grande, Broadwing was the parent  company 
of West  Texas  Microwave  Company,  Tower  Transmission  Systems 
Corporation,  Atlantic  States  Microwave  Transmission  Company, 
Central States Microwave Transmission Company, and Western States 
Microwave Transmission Company. 

  7 47 U.S.C.  503(b).

  8 47 C.F.R.  1.80.

  9 47 U.S.C.  503(b)(2)(D).

  10  Section 312(f)(1)  of  the  Act provides  that  ``the  term 
`willful,' when used with reference to the commission or omission 
of any  act,  means the  conscious  or deliberate  commission  or 
omission of such act, irrespective  of any intent to violate  any 
provision of this Act or any rule or regulation of the Commission 
....''  47 U.S.C.   312(f)(1).  This  definition applies to  the 
term ``willful''  as used  in  Section 503(b)  of the  Act.   See 
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).

     11    12 FCC Rcd at 17096-97 (citing Sen. Rep. No. 95-580 at 
3 (1977), reprinted in 1978  U.S.C.C.A.N. at 109, and H.R.  Conf. 
Rep. 101-386 at  435 (1989),  reprinted in  1989 U.S.C.C.A.N.  at 
3018).

  12 The Kansas City  Field Office issued NOVs to Central  States 
Microwave Transmission Company on June 21, 2000 (for violation of 
Section 17.4 of the Rules); on January 19, 2001 (for violation of 
Section 17.48  of  the  Rules);  and on  January  23,  2001  (for 
violation of Section 17.48 of the Rules).  The Kansas City  Field 
Office issued two  separate NOVs  to Broadwing  on September  27, 
2000 (both  for violations  of  Sections 17.4  and 17.57  of  the 
Rules).  The Denver Field Office issued  an NOV to Rio Grande  on 
March 21, 2001 (for violation of Section 17.57 of the Rules).

  13 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  14 47 U.S.C.  504(a).

  15 See 47 C.F.R.  1.1914.