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


In the Matter of                        )    File No. EB-02-
KC-301
                              )    
Midwest Tower Partners, LLC             )    NAL/Acct. No. 
20023256007
                              )
Owner of Antenna Structure 1045073      )    FRN #0006-1628-
53
                              )
Milwaukee, Wisconsin                    )
                              
                MEMORANDUM OPINION AND ORDER

     Adopted:  June 30, 2003                      Released:  
July 2, 2003    

By the Chief, Enforcement Bureau:

                      I.   INTRODUCTION

     1.   In this Memorandum  Opinion and Order (``Order''), 
we cancel the proposed monetary  forfeiture in the amount of 
ten  thousand dollars  ($10,000),  issued  to Midwest  Tower 
Partners,  LLC   (``Midwest'')  for  its   apparent  willful 
violation  of  Section  17.50   of  the  Commission's  Rules 
(``Rules'').1   The  alleged  violation  involved  Midwest's 
failure to clean  or repaint its antenna  structure as often 
as necessary to maintain good visibility.  

     2.   On  June 4,  2002,  the District  Director of  the 
Commission's  Kansas City,  Missouri Field  Office (``Kansas 
City  Office'') issued  a Notice  of Apparent  Liability for 
Forfeiture (``NAL'')2  to Midwest for $10,000.   On June 28, 
2002, Midwest filed a response to the NAL. 

                         II.  BACKGROUND

     3.   On  May 1,  2002, an  agent from  the Kansas  City 
Office   inspected   Midwest's    antenna   structure   with 
registration  number  1045073  located  at 41  42'  20''  N 
latitude &  091 28'  08'' W longitude,  1.24 miles  east of 
Iowa  City,  Iowa.   The  agent  observed  black,  unpainted 
coaxial cable  on all three  legs of the structure  and over 
its entire  length.  The  agent determined that  the coaxial 
cables obscured  the tower's  paint, to  the degree  that it 
reduced its visibility in violation  of Section 17.50 of the 
Rules.

     4.   On June 4,  2002, the Kansas City  Office issued a 
NAL to Midwest  for its failure to  maintain good visibility 
of its tower in apparent  willful violation of Section 17.50 
of the Rules.  On June 28, 2002, Midwest filed a response to 
the NAL  seeking cancellation  or reduction of  the proposed 
forfeiture.   In  its  response,  Midwest  denies  that  the 
coaxial cables referred  to in the NAL  compromised the good 
visibility of the antenna  structure in violation of Section 
17.50.   In  support  of this  position,  Midwest  submitted 
photographs  with  its  response  from  various  angles  and 
distances  evincing  the  good  visibility  of  the  antenna 
structure.  Furthermore,  Midwest asserts that Chapter  3 of 
the Federal  Aviation Administration's  (``FAA's'') Advisory 
Circular  AC70/7460-1K on  Obstruction Marking  and Lighting 
(``Advisory  Circular'')  states  that the  purpose  of  the 
marking   guidelines  is,   ``to  make   certain  structures 
conspicuous  to pilots  during  daylight  hours''3 and  that 
Midwest's tower  complies with these guidelines  because the 
coaxial cable is narrower than the legs of the structure and 
thus does not  impair the visibility of the  paint such that 
it is harmful to aircraft.   Midwest further states that the 
painted  surface on  the structure  does not  show signs  of 
scaling,  oxidation, chipping,  layers of  contamination, or 
other defects  that would  require repainting  under Section 
17.50  of  the Rules  or  the  Advisory Circular.   Finally, 
Midwest  cites   its  history   of  overall   compliance  in 
requesting  a  cancellation  or reduction  of  the  proposed 
forfeiture.  
      
                         III. DISCUSSION

     5.   The forfeiture amount in this case was proposed in 
accordance with Section 503(b)  of the Communications Act of 
1934 as amended (``Act''),4 Section  1.80 of the Rules,5 and 
The Commission's  Forfeiture Policy Statement  and Amendment 
of Section 1.80  of the Rules to  Incorporate the Forfeiture 
Guidelines.6   In  examining   Midwest'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.7

     6.   Section 17.50 of the Rules states that ``[a]ntenna 
structures  requiring  painting  under this  part  shall  be 
cleaned or repainted as often  as necessary to maintain good 
visibility.''8   After reviewing  the record  in this  case, 
including the photographs submitted  by Midwest, we conclude 
that the evidence does not support a finding that the black, 
unpainted  coaxial  cables  attached  to  Midwest's  antenna 
structure obstructed the good visibility of the structure in 
violation  of Section  17.50 of  the Rules.9   We therefore, 
cancel the NAL.
      
     7.   Accordingly,  IT  IS  ORDERED  that,  pursuant  to 
Section 504(b) of  the Act,10 and Section  1.80(f)(4) of the 
Rules,11  the  NAL,  NAL/Acct. No.  200232560007  issued  to 
Midwest Tower Partners, LLC IS CANCELLED.    

      8.  IT IS  FURTHER ORDERED that  a copy of  this Order 
shall be sent by first class mail and certified mail, return 
receipt requested, to Midwest  Tower Partners, LLC, 12323 W. 
Fairview  Avenue,  Milwaukee,  Wisconsin 53226  and  to  its 
counsel,  B.  Lynn  F.  Ratnavale,  Esq.,  at  Lukas,  Nace, 
Gutierrez & Sachs, Chartered,  1111 19th Street, N.W., Suite 
1200, Washington, D.C.  20036.


                         FEDERAL COMMUNICATIONS COMMISSION

                         

                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1 47 C.F.R.  17.50.

2 Notice of Apparent Liability for Forfeiture, NAL Acct. No. 
200232560007 (Enf.  Bur., Kansas  City Office, rel.  June 4, 
2002).

3 FAA  Advisory Circular AC 70/7460-1k,  Obstruction Marking 
and Lighting, Chapter 3. Marking Guidelines, Paragraph 30.  

4 47 U.S.C.  503(b).

5 47 C.F.R.  1.80.

6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 
(1999).

7 47 U.S.C.  503(b)(2)(D).

8 47 C.F.R.  17.50.

9  Separate  from our  finding  above,  and in  response  to 
Midwest's  assertion  that  it  is in  compliance  with  the 
Advisory Circular  because the unpainted coaxial  cables are 
narrower than  the legs of  the structure, we note  that the 
Advisory Circular explicitly states that ``[a]lternate bands 
of aviation  orange and  white are normally  displayed on... 
[c]oaxial cable, conduits, and  other cables attached to the 
face of  the tower.''  FAA Advisory  Circular AC 70/7460-1K, 
Obstruction  Marking   and  Lighting,  Chapter   3.  Marking 
Guidelines,  Paragraph  33(d).   Thus, compliance  with  the 
Advisory  Circular  would  additionally require  any  cables 
attached to the  face of the tower to also  be painted.  See 
Pinnacle Towers Inc., 18 FCC Rcd. 6419 (Enf. Bur. 2003).


10 47 U.S.C.  504(b).

11 47 C.F.R.  1.80(f)(4).