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


In the Matter of                )
                                )  File No. EB-02-DL-191
Access.1 Communications Corp.-NY)
                                )  NAL/Acct. No. 200232500009
Owner of Antenna Supporting Structure   )
No. 1051379                     )  FRN: 0006-1618-55
                                )  
New York, New York              )


                        FORFEITURE ORDER

     Adopted:  October 28, 2003                        Released:  
October 30, 2003                            

By the Chief, Enforcement Bureau:

                                 
                        I.   INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary  forfeiture  in  the  amount  of  two  thousand  dollars 
($2,000)  to  Access.1  Communications  Corp.-NY  (``Access.1''), 
owner of  Antenna  Supporting Structure  No.  1051379  (``KCUL-FM 
Tower''),  for  willful  violation   of  Section  17.50  of   the 
Commission's Rules  (``Rules'').1  The  noted violation  involves 
Access.1's failure to clean or  repaint its antenna structure  as 
often as necessary to maintain good visibility.  

     2.   On September  30, 2002,  the District  Director of  the 
Commission's  Dallas,  Texas  Field  Office  (``Dallas  Office'') 
issued a Notice of Apparent Liability for Forfeiture (``NAL'') to 
Access.1 in  the  amount  of  ten  thousand  dollars  ($10,000).2  
Access.1 filed a response to the NAL on October 30, 2002.

                         II.  BACKGROUND

     3.   On July 24, 2000, Access.1 notified the Commission that 
it consummated the purchase of radio stations KCUL(AM) and  KCUL-
FM, Marshall, Texas, on July 21, 2000.  In the purchase, Access.1 
acquired the KCUL-FM Tower  located at 32 32'  26''N / 094  24' 
4''W  in  Marshall.    Both  the  Rules   and  Federal   Aviation 
Administration specifications require that  the KCUL-FM Tower  be 
painted.
 
     4.   On April  17, 2002,  an agent  from the  Dallas  Office 
inspected the KCUL-FM Tower  and determined that the  structure's 
required obstruction marking appeared to be deteriorating, making 
it difficult to distinguish the orange and white bands.
     5.   On May 5, 2002, the agent returned to the KCUL-FM Tower 
and  concluded  that  the  required  paint  bands  could  not  be 
distinguished at approximately one fourth of a mile, resulting in 
poor visibility of the structure in violation of Section 17.50 of 
the Rules.

     6.   On September 30, 2002, the  Dallas Office issued a  NAL 
to Access.1 in the amount  of ten thousand dollars ($10,000)  for 
willful violation of Section 17.50 of the Rules.  Access.1  filed 
a response on October 30, 2002, seeking reduction or cancellation 
of the proposed forfeiture.   Declarations, signed under  penalty 
of perjury, from Cary Camp,  the General Manager of KCUL(AM)  and 
KCUL-FM, and  Jerry  Wimberly,  President of  Mid  South  Antenna 
Specialists, accompanied the response.

     7.   In response  to  the  NAL,  Access.1  argues  that  the 
proposed forfeiture should be canceled because the KCUL-FM  Tower 
complied with Section 17.50 of the Rules.  Mr. Camp explains that 
he has been employed in the broadcast industry for over 18 years, 
12 of those as owner and general manager of eight radio stations.  
Mr. Camp  states  that, during  his  years in  the  industry,  he 
supervised the maintenance and scheduled the painting of numerous 
broadcast towers and that he believed the KCUL-FM Tower  complied 
with Section 17.50 of the Rules.

     8.   Mr. Camp notes that in October 2001 he budgeted to have 
the KCUL-FM Tower repainted in mid-2002.  Mr. Camp states that he 
chose this timetable, because,  based on his personal  inspection 
and experience, the paint on the tower had not deteriorated to  a 
point where it currently violated Section 17.50 of the Rules. 

     9.   In early  2002,  Mr.  Camp contacted  Mr.  Wimberly  to 
schedule repainting of  the KCUL-FM  Tower around  June of  2002.  
Mr. Wimberly states in his  declaration, that he has painted  and 
supervised the painting  of broadcast  towers for  24 years,  and 
that during that time he  has painted or repainted  approximately 
200 towers.  Mr. Wimberly further states that he is familiar with 
the Commission's tower  painting rule, and  believes he can  tell 
when a tower  is not  in compliance.  Mr.  Wimberly asserts  that 
when Mr. Camp first contacted him, in early 2002, he examined the 
KCUL-FM  Tower  and   determined  that  it   complied  with   the 
Commission's painting  requirements.  He  states that  he  agreed 
with Mr. Camp that June of  2002 would be an appropriate time  to 
repaint the tower.

     10.  Mr. Wimberly repainted  the KCUL-FM Tower  on June  15, 
2002.  Mr. Wimberly declares  that even on  this date, which  was 
more than one month after the agent's May 5, 2002 inspection,  he 
believed  the  KCUL-FM  Tower  complied  with  the   Commission's 
painting requirements.

     11.  Access.1 next argues that even if the KCUL-FM Tower did 
not  comply  with  Section  17.50  of  the  Rules,  the  proposed 
forfeiture should still be  canceled or reduced because  Access.1 
acted in good faith  to comply with  the Commission's Rules.   In 
his declaration, Mr. Camp states that Access.1 painted the  KCUL-
FM Tower  on  June  15,  2002, as  part  of  regularly  scheduled 
maintenance, without any  knowledge of  the agent's  inspections, 
and prior to the issuance of the NAL.

     12.  In a similar vein, Access.1 asserts that the forfeiture 
should be  canceled  or  reduced because  Access.1's  conduct  is 
``precisely that  which  the  Commission  has  always  sought  to 
obtain--compliance with the  Commission's rules  in the  ordinary 
course of business, in  the exercise of  the licensee's own  good 
faith judgment, and without Commission intervention.''3
     13.  Access.1 further  argues  that  the  forfeiture  amount 
should be canceled or reduced  because the Commission issued  the 
NAL without first contacting Access.1 and directing it to  remedy 
the violation within a certain  period of time.  Access.1  states 
that prior to the issuance of an NAL, the Commission  ``usually'' 
informs a licensee that an inspection is being conducted, advises 
the licensee of any failure to  comply with the Rules, and  gives 
the licensee  a set  time  to comply  with the  Rules.   Access.1 
concludes  that  assessing  a  $10,000  forfeiture,  without  the 
aforementioned process, is arbitrary, capricious, and an abuse of 
discretion. 

     14.  Finally, Access.1 argues  that the proposed  forfeiture 
should be reduced based on its history of overall compliance.

                         III. DISCUSSION

     15.  The District Director assessed the proposed  forfeiture 
amount in  this case  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 Amendments of Section  1.80 of the  Rules to Incorporate  the 
Forfeiture Guidelines  (``Forfeiture  Policy  Statement'').6   In 
examining Access.1's response to the  NAL, Section 503(b) of  the 
Act requires  the Commission  to 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 such  other matters  as 
justice may require.7 

     16.  First, we disagree with Access.1 that the KCUL-FM Tower 
complied with Section 17.50 of  the Rules.  Section 17.50 of  the 
Rules provides that antenna  structures requiring painting  shall 
be cleaned or repainted  as often as  necessary to maintain  good 
visibility.  Based on  the field agent's  observations, that  the 
tower's painted bands could not be distinguished at approximately 
one fourth of a mile, we determine that the KCUL-FM Tower did not 
comply with the requirements of  Section 17.50 of the Rules.   We 
find nothing in Access.1's response that warrants overturning the 
agent's determination.8  

     17.  Furthermore, we find  that Access.1 willfully  violated 
Section 17.50  of the  Rules.  The  term ``willful''  as used  in 
Section 503(b) of the  Act, does not require  a finding that  the 
rule violation was  intentional or  that the  violator was  aware 
that it was committing a  rule violation.9  The term  ``willful'' 
simply requires that the violator  knew it was taking the  action 
in question, irrespective of any  intent to violate the  Rules.10  
We conclude that Access.1 willfully violated Section 17.50 of the 
Rules because Access.1 made  a conscious and deliberate  decision 
not to repaint the KCUL-FM Tower until June 15, 2002.11 

     18.  Access.1 points to  the painting schedule,  established 
by Mr. Camp in October 2001, and the actual painting of the KCUL-
FM Tower, prior to any notice  of the inspections or issuance  of 
the NAL, as evidence of  Access.1's good faith efforts to  comply 
with the  Rules.   Access.1  argues that  these  efforts  warrant 
canceling or reducing the proposed  forfeiture.  In light of  our 
finding that  Access.1 willfully  violated Section  17.50 of  the 
Rules, we  disagree  that  the  forfeiture  should  be  canceled.  
However, we  agree with  Access.1 that  identifying the  need  to 
repaint the  tower,  scheduling  the tower  for  repainting,  and 
repainting  the  KCUL-FM  Tower  prior  to  any  notice  of   the 
inspections or  issuance of  the NAL  merits a  reduction of  the 
proposed forfeiture.  We therefore  reduce the forfeiture  amount 
from ten  thousand dollars  ($10,000)  to four  thousand  dollars 
($4,000) based on  Access.1's good faith  efforts to comply  with 
Section 17.50 prior to being informed of the violation.12

     19.  Access.1 also  argues  that the  forfeiture  should  be 
canceled or reduced  because its  conduct is  precisely what  the 
Commission  seeks  to  obtain.13   However,  the  Commission  has 
consistently stressed that  it expects full  compliance with  the 
antenna structure rules  because of the  potential danger to  air 
navigation;14  in  light  of  our  determination  that   Access.1 
violated Section 17.50 of the Rules we do not further reduce  the 
forfeiture amount based on this argument.

     20.  Turning  to  Access.1's  argument  that  the   proposed 
forfeiture should  be reduced  based on  its history  of  overall 
compliance, we agree and further reduce the forfeiture from  four 
thousand dollars ($4,000) to two thousand dollars ($2,000).

     21.  We disagree with Access.1's final argument that the NAL 
should be reduced  or canceled because  Access.1 did not  receive 
notice of the inspection prior to the issuance of the NAL.15   In 
advancing  this  argument,  Access.1   first  asserts  that   the 
Commission usually directs licensees to remedy violations  within 
a set time period prior  to issuing a NAL.16  Access.1  concludes 
that enforcing this NAL without the ``usual'' prior notice  would 
be  arbitrary,  capricious,  and  an  abuse  of  discretion.   We 
disagree and note that neither the Commission nor its agents  are 
obligated to  notify  a licensee  when  an inspection  occurs  or 
provide a licensee an  opportunity to cure  a violation prior  to 
issuing an NAL.17  

     22.  In summary, we  find that  Access.1 willfully  violated 
Section 17.50 of  the Rules by  failing to clean  or repaint  the 
KCUL-FM Tower as often as necessary to maintain good  visibility.  
However, based on  Access.1's good faith  efforts and history  of 
overall compliance  we  reduce  the forfeiture  amount  from  ten 
thousand dollars ($10,000) to two thousand dollars ($2,000).

                      IV.  ORDERING CLAUSES

     23.  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,18  Access.1 Communications  Corp.-NY IS  LIABLE FOR  A 
MONETARY  FORFEITURE  in  the  amount  of  two  thousand  dollars 
($2,000) for willfully violating Section 17.50 of the Rules.

     24.  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.19  
Payment 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 must include the FCC Registration Number 
(``FRN'') referenced above,  and should also  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. 20554.20

     25.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
by sent  by   first  class and  certified  mail,  return  receipt 
requested, to Access.1  Communications Corp.,  505 Eight  Avenue, 
Ninth Floor, New York, New York 10018, and its counsel, .James L. 
Winston, Esq., Rubin, Winston,  Diercks, Harris & Cooke,  L.L.P., 
1155 Connecticut Avenue, N.W. 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. 
200232500009 (Enf.  Bur., Dallas  Office released  September  30, 
2002).
3 Access.1's response to the NAL at p. 7, citing the 1998 
Biennial Regulatory Review--Streamlining of Mass Media 
Applications, Rules, and Processes; Policies and Rules, 13 FCC 
Rcd 23056 at para. 23 (1998) (``Biennial Regulatory Review''). 

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 See William L. Needham and Lucille Needham, 18 FCC Rcd 5521 
(Enf. Bur. 2002) (upholding the field agent's determination that 
the tower's painted bands were not clearly visible, despite tower 
owner's assertion that it had no difficulty discerning the 
painted bands and maintained a painting schedule for the tower).  
 
9 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,' 
... means the conscious and 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 authorized 
by this Act ....''  See Southern California Broadcasting Co., 6 
FCC Rcd 4387 (1991).  

10 Southern California Broadcasting Co. 6 FCC Rcd at 4388.

11 See Needham, 18 FCC Rcd at 5522  (concluding that the tower 
owner acted willfully in failing to repaint a tower when the 
tower owner was aware of the condition of the paint, but chose 
not to repaint the tower).

12 See Radio One Licenses, Inc., 18 FCC Rcd 15964 (2003).

13 Access.1 cites the Biennial Regulatory Review at paragraph 23 
as evidence of the type of conduct the Commission expects from 
its licensees.  We disagree with Access.1 that the Biennial 
Regulatory Review is relevant to determining whether a licensee 
complied with Section 17.50 of the Rules.  Paragraph 23 of the 
Biennial Regulatory Review explains why the Commission recast 
certain Mass Media Bureau forms into ``yes'' or ``no'' 
certification formats, with an ``explanation'' checkbox.

14 See SpectraSite Communications Inc., 17 FCC Rcd. 7884 (2002).  

15 Neither 47 U.S.C.  503(b) nor 47 C.F.R.  1.80 and 1.89 
require the Commission to issue a Notice of Violation prior to 
the issuance of a NAL.  

16 The fact that Access.1 cited five cases where the Commission 
gave notice prior to issuing a NAL does not establish that the 
Commission is obligated to give such notice.

17 See AT&T Wireless Services Inc., 17 FCC Rcd 21866, 21871 n. 20 
(2002) (enforcing a forfeiture issued without a Notice of 
Violation).  See also Missouri RSA, 18 FCC Rcd 12653, 12654 (Enf. 
Bur. 2003) (``Nothing in the Communications Act or the 
Commission's Rules entitles a licensee to an opportunity to 
correct a violation prior to the issuance of a NAL.  Licensees 
cannot expect simply to sit back and await Commission findings of 
violations before taking appropriate steps to ensure compliance 
with Commission rules.'').  

18 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

19 47 U.S.C.  504(a).

20 47 C.F.R.  1.1914.