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

In the Matter of                )
                                )       File No. EB-02-KC-504
Pinnacle Towers, Inc.           )    
Owner of Antenna Structure # 1053157 in )         NAL/Acct.   No. 
200232560020
Des Moines, Iowa                )
                               )     
Sarasota, Florida               )       FRN 0006-1561-11
                                 

                        FORFEITURE ORDER

     Adopted:  August 7, 2003           Released:    August   11, 
2003           

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary  forfeiture  in  the  amount  of  ten  thousand  dollars 
($10,000), to  Pinnacle  Towers, Inc.  (``Pinnacle''),  owner  of 
antenna structure number 1053157 in Des Moines, Iowa, for willful 
violation  of   Section   17.50   of   the   Commission's   Rules 
(``Rules'').1  The noted violation involves Pinnacle's failure to 
clean  and  repaint  its  antenna  structure  to  maintain   good 
visibility.

     2.   On  July  22,  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 in the amount of twenty thousand dollars ($20,000)  to 
Pinnacle.  Pinnacle filed a response on August 21, 2002.  

                         II.  BACKGROUND

     3.   On June 24,  2002, a Commission  agent from the  Kansas 
City  Office  inspected   Pinnacle's  antenna  structure   number 
1053157, located  in Des  Moines,  Iowa (``Des  Moines  tower'').  
While conducting the inspection, the agent observed black cabling 
attached to the lower half to two-thirds of the structure,  which 
covered the painted  metal tower  and reduced  visibility of  the 
structure.  On July 22, 2002, the District Director of the Kansas 
City Office issued a  NAL for $20,000  to Pinnacle for  violating 
Section 17.50 of  the Rules.   The NAL doubled  the $10,000  base 
forfeiture  amount  for  tower  painting  violations  to  $20,000 
because the Kansas  City Office  determined that  Pinnacle had  a 
history of violating Section 17.50 of the Rules.

     4.   In its  response filed  on  August 21,  2002,  Pinnacle 
claims that  the forfeiture  proposed against  it is  unfair  for 
several reasons.   Pinnacle  argues that  its  recent  bankruptcy 
filing was  not taken  into account  in the  NAL.  Pinnacle  also 
argues that the finding in the NAL that it has a history of  non-
compliance  with  the  painting   rules  is  overstated  and   is 
discriminatory against large tower owners.   Pinnacle states that 
the painting violations cited  in the NAL as  the basis for  this 
finding are extremely  small in number  considering that it  owns 
over 2,200 registered towers and  that these violations had  been 
fixed or were in the process  of being fixed when the Notices  of 
Violation (``NOVs'') in those  cases were issued.  Pinnacle  also 
claims that  it  did  not willfully  violate  the  painting  rule 
because its contracts with new tower lessees specifically require 
the lessees to  paint their cables,  Pinnacle reviews its  towers 
for Federal Aviation Administration (``FAA'') and FCC  compliance 
on a quarterly  basis, and Pinnacle  had no other  notice of  the 
alleged violation.  Further,  Pinnacle maintains  that there  has 
been  no   demonstration  that   its  violation   was   repeated.  
Additionally,  Pinnacle  contends   that  the  rule   prohibiting 
obstructions from unpainted cables has not been articulated,  and 
any  determination   of  obstruction   is  therefore   arbitrary.  
Finally, Pinnacle  asserts  that  the NAL  is  inconsistent  with 
several recent forfeiture orders  issued with respect to  Section 
17.50 painting violations.   For all of  these reasons,  Pinnacle 
requests  that   the  proposed   forfeiture  be   eliminated   or 
substantially reduced. 

                           III. DISCUSSION
 
          5.   The proposed  forfeiture amount  in this  case  is 
being  assessed  in  accordance   with  Section  503(b)  of   the 
Communications Act of 1934,  as amended (``Act''),3 Section  1.80 
of the Rules,4 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).  In examining  Pinnacle'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.5

          6.   Section 17.50 of the  Rules provides that  antenna 
structures requiring painting under the rules shall be cleaned or 
repainted as  often as  necessary  to maintain  good  visibility.  
Antenna  structure  number  1053157,   owned  by  Pinnacle,   has 
specified  lighting  and   painting  requirements  that   include 
painting the structure with alternating bands of aviation  orange 
and white.   On June  24, 2002,  an agent  from the  Kansas  City 
Office  found  that  the  antenna  structure  had  black  cabling 
obscuring the orange  and white paint,  causing the structure  to 
have an overall dark appearance  on the lower half to  two-thirds 
of the structure.        

     7.   In its response to the NAL, Pinnacle presented  several 
arguments in support of its  position that the forfeiture  should 
be cancelled or  substantially reduced.   First, Pinnacle  argues 
that its recent bankruptcy filing  was not taken into account  in 
the  NAL.   It  is  unclear  whether  Pinnacle  is  asserting  an 
inability to pay claim or  is simply arguing that the  forfeiture 
amount should have  been affected by  its bankruptcy filing.   If 
Pinnacle is  claiming an  inability to  pay, the  NAL  explicitly 
stated  that  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; or (3) some 
other  reliable  and  objective  documentation  that   accurately 
reflects the petitioner's current financial status.  Pinnacle did 
not provide any financial documentation in support of its request 
for cancellation or reduction  of the forfeiture and,  therefore, 
we have no basis upon which to analyze an inability to pay claim.  
Further, although there is precedent for reducing or rescinding a 
forfeiture based on bankruptcy  in certain circumstances,6 we  do 
not believe that Pinnacle has justified a reduction or rescission 
in this case because it has not provided financial  documentation 
for the Bureau's analysis, and because, even though it has  filed 
bankruptcy, it retains control over its assets.  Moreover, filing 
for bankruptcy does not preclude  the Commission from issuing  an 
order imposing a forfeiture upon Pinnacle.7     

          8.   Pinnacle also argues that  the finding in the  NAL 
that it has a history  of non-compliance with the painting  rules 
is overstated and is  discriminatory against large tower  owners.  
Pinnacle states that the painting violations cited in the NAL  as 
the  basis  for  this  finding  are  extremely  small  in  number 
considering that it  owns over 2,200  registered towers and  that 
they had been fixed  or were in the  process of being fixed  when 
the NOVs were issued.   The NAL doubled  the $10,000 base  amount 
for this violation  to $20,000 because  Pinnacle had been  issued 
three prior NOVs for  violations of Section  17.50 of the  Rules.  
However, the record reflects  that in two  of these prior  cases, 
Pinnacle was aware of the painting problems and had begun to take 
corrective measures  prior to  the inspections  that led  to  the 
NOVs.  We do not believe  that the one remaining prior  violation 
of Section  17.50  is sufficient  to  justify doubling  the  base 
forfeiture  amount  for  the  violation  in  the  instant   case.  
Consequently, we reduce the forfeiture amount to $10,000. 

          9.   Next, Pinnacle claims  that it  did not  willfully 
violate the  painting  requirement because  Pinnacle's  contracts 
with new tower lessees specifically  require them to paint  their 
cables, Pinnacle reviews its towers for FAA and FCC compliance on 
a  quarterly  basis,  and  Pinnacle  had  no  notice  of  alleged 
violations.  Pinnacle asserts that ``The latest quarterly  report 
for the Des Moines tower did not indicate that the tower had  any 
marking problem.   The contractor  employed by  Pinnacle did  not 
understand that unpainted lines can obstruct a tower's visibility 
in violation of FCC rules.''  

          10.  As  the  Commission  recently  reiterated,   ``the 
Commission has  long held  that  licensees and  other  Commission 
regulatees are responsible  for the acts  and omissions of  their 
employees  and  independent  contractors  and  has   consistently 
refused to  excuse  licensees  from  forfeiture  penalties  where 
actions of employees or independent contractors have resulted  in 
violations.''8  Pinnacle is, therefore, chargeable with knowledge 
of its contractor's  observation of unpainted  cables at the  Des 
Moines tower  even  if  the contractor  failed  to  provide  this 
information  to  Pinnacle.    Additionally,  one   of  the   NOVs 
referenced  in  Paragraph  8,  above,9  put  Pinnacle  on  notice 
concerning the  need  to  paint the  cables.   We  conclude  that 
Pinnacle's violation of the painting requirement was willful.

          11.  Section 503(b)  of the  Act gives  the  Commission 
authority to assess  a forfeiture penalty  against any person  if 
the Commission  determines that  the  person has  ``willfully  or 
repeatedly'' failed to comply with  the provisions of the Act  or 
with any rule, regulation or order issued by the Commission.   In 
light  of  our  determination  that  Pinnacle's  violations  were 
willful, it is not necessary to determine whether they were  also 
repeated. 10

          12.  Additionally,  Pinnacle  contends  that  the  rule 
prohibiting obstructions  from  unpainted  cables  has  not  been 
articulated and  any determination  of obstruction  is  therefore 
arbitrary.  We disagree.  Pinnacle acknowledges that the  antenna 
structure registration for  its Des Moines  tower requires it  to 
comply with FAA Advisory  Circular AC 70/7460-1J.  This  Advisory 
Circular explicitly states that  ``alternative bands of  aviation 
orange and white  are normally  displayed on  ... coaxial  cable, 
conduits and other cables  attached to the  face of a  tower.''11  
Thus, any cables  attached to  the face of  Pinnacle's tower  are 
required to  be painted.12   Moreover,  the agent  inspected  the 
tower and  determined that  the unpainted  cables did,  in  fact, 
obscure the visibility of the tower in violation of Section 17.50 
of the Rules.  Further, the photographic evidence provided by the 
agent supports his determination that Pinnacle's tower was indeed 
obstructed by the cables.  

          13.  Finally,  Pinnacle   asserts  that   the  NAL   is 
inconsistent with several  recent forfeiture  orders issued  with 
respect to  Section  17.50  painting  violations.   Specifically, 
Pinnacle argues that in three prior cases, forfeitures of $19,000 
or $20,000 were assessed for multiple rule violations,  including 
a Section  17.50  violation,  whereas  in  this  case  a  $20,000 
forfeiture was proposed for a single violation of Section  17.50.  
Because we  have  reduced the  forfeiture  in this  case  to  the 
$10,000  base  forfeiture  amount,  we  need  not  address   this 
argument.  Pinnacle also asserts that  in these prior cases,  the 
tower owner  was given  an NOV  and an  opportunity to  cure  the 
violation prior to  issuance of  the NAL.  However,  there is  no 
requirement that  the  Commission  issue  an  NOV  or  provide  a 
violator an opportunity to cure  a violation prior to issuing  an 
NAL.13 



                       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(f)(4)  of 
the Rules,14 Pinnacle IS LIABLE FOR A MONETARY FORFEITURE in  the 
amount of ten thousand dollars ($10,000) for failure to clean and 
repaint its  antenna structure  to maintain  good visibility,  in 
willful violation of Section 17.50 of the Rules.

     15.  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.15  
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 reference NAL/Acct.  No. 
200232560020 and  FRN 0006-1561-11.   Requests for  full  payment 
under an installment plan should  be sent to: Chief, Revenue  and 
Receivables  Group,  445  12th  Street,  S.W.,  Washington,  D.C. 
20554.16

     16.  IT IS FURTHER ORDERED that  copies of this Order  shall 
be sent by Certified Mail  Return Receipt Requested and by  First 
Class Mail to Pinnacle Towers,  Inc., 301 N. Cattlemen Road,  3rd 
Floor, Sarasota, Florida 34232 and its counsel, Thomas B.  Magee, 
Esq. Keller  and Heckman  LLP,  1001 G  Street, Suite  500  West, 
Washington, DC  20001.

                         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. 
200232560020 (Enf. Bur.,  Kansas City Office,  released July  22, 
2002). 

     3 47 U.S.C.  503(b).

     4 47 C.F.R.  1.80.

     5 47 U.S.C.  503(b)(2)(D).

  6    See, e.g., Dennis  Elam, Trustee for Bakcor  Broadcasting, 
Inc., Debtor, 11 FCC Rcd 1137 (1996) (forfeiture rescinded  after 
bankruptcy trustee was appointed and  the violator was no  longer 
associated with the subject radio stations); Interstate  Savings, 
Inc. d/b/a  ISI  Communications,  12  FCC  Rcd  2934  (CCB  1997) 
(forfeiture rescinded where  trustee was appointed  in Chapter  7 
liquidation, removing violator from operating as a common carrier 
and from involvement  in dissolution or  distribution of  assets.  
Requiring trustee  to pay  the forfeiture  would diminish  estate 
assets available  to  innocent  creditors  and  serve  no  public 
interest purpose.).

  7    See 11 U.S.C.  362(b)(4).  See Coleman Enterprises, Inc., 
16 FCC  Rcd 24385,  24389 n.  28 (2000)  (filing for  chapter  11 
bankruptcy does not preclude the Commission from issuing an Order 
of  Forfeiture).    See  also   United  States   of  America   v. 
Commonwealth Companies, Inc., 913 F.2d 518 (8th Cir. 1990).   

  8   See,  e.g., Eure  Family Limited  Partnership, 17  FCC  Rcd 
21861, 21863-64  (2002) (internal  quotation marks  omitted)  and 
cases cited therein.  

  9 That NOV was issued on January 15, 2001, by the  Commission's 
Tampa, Florida, Field Office, for  violation of Section 17.50  of 
the Rules because of unpainted  cables running along the side  of 
the antenna structure.

  10 Koke, Inc., 23 FCC 2d 191 (1970).

  11  FAA  Advisory Circular AC  70/7460-1J, Obstruction  Marking 
and Lighting, Chapter 3, Marking Guidelines, Paragraph 33(d)(7).   

  12 See Pinnacle Towers, Inc., 18 FCC Rcd 6419, 6419-6420  (Enf. 
Bur. 2003).

13          See 47 C.F.R.   1.89; AT&T Wireless Services,  Inc., 
17 FCC Rcd 21866, 21871 n. 20; and WOYK, Inc., DA 03-2367, fn.  8 
(Enf. Bur. released July 22, 2003).

  14 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  15 47 U.S.C.  504(a).

  16 See 47 C.F.R.  1.1914.