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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-AT-322
Barinowski Investment Company, LP )
Owner of Antenna Structure # 1062662 near ) NAL/Acct.
Savannah, Georgia )
Grovetown, Georgia ) FRN 0006-1664-09
Adopted: December 1, 2003 Released: December
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000) to Barinowski Investment Company, LP (``Barinowski''),
owner of antenna structure registration number 1062662 located
near Savannah, Georgia, for willful violation of Section 17.50 of
the Commission's Rules ("Rules").1 The noted violation involves
Barinowski's failure to clean and repaint its antenna structure
to maintain good visibility.
2. On September 30, 2002, the Commission's Atlanta,
Georgia Field Office ("Atlanta Office") issued a Notice of
Apparent Liability for Forfeiture ("NAL")2 in the amount of ten
thousand dollars ($10,000) to Barinowski. Barinowski filed a
response on October 7, 2002.
3. On August 28, 2002, a Commission agent from the Atlanta
Office inspected antenna structure registration number
1062662. At the time of the inspection, black cabling
on the outside of all three sides of the structure
covered the painted metal tower, reducing the
visibility of the structure. On September 12, 2002,
during a telephone interview with an agent from the
Atlanta Office, a Barinowski representative stated that
Barinowski owned antenna structure registration number
1062662, that it was aware that the cables affected the
visibility of the antenna structure, and that it had
contracted to have the tower repainted as soon as an
additional tenant was added to the structure. On
September 30, 2002, the District Director of the
Atlanta Office issued a NAL for $10,000 to Barinowski
for willfully violating Section 17.50 of the Rules.
The NAL specifically noted that Barinowski failed to
repaint the antenna structure in accordance with the
painting specifications associated with it.
4. In its response Barinowski requests cancellation of the
forfeiture. In support of its request, Barinowski states that it
had been advised by its consultant, prior to any contact with the
Commission agent, to paint the antenna structure as a preventive
measure. Further, Barinowski states that it had already arranged
for the tower to be painted and had prepaid the contractor on May
31, 2002 to expedite the painting.3 Finally, Barinowski states
that it believed that the antenna structure was not in violation
and that the painting, which occurred on October 4, 2002,
prevented a future violation.
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''),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, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Forfeiture Policy Statement''). In
examining Barinowski'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.6
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 registration number 1062662 has specified
lighting and painting requirements that include painting the
structure with alternating bands of aviation orange and white.
Moreover, the antenna structure registration for Barinowski's
antenna structure registration number 1062662 requires it to
comply with FAA Advisory Circular AC 70/7460-1J. This Advisory
Circular, which is incorporated by reference to our rules in
Section 17.23 of the Rules,7 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.''8 Further, pursuant to Section 17.23 of the Rules,
``the specifications, standards, and general requirements stated
in [this Circular] are mandatory.'' Thus, any cables attached to
the face of Barinowski's tower are required to be painted.9 When
the agent inspected the tower on August 28, 2002, he determined
that the unpainted cables did, in fact, obscure the visibility of
the tower in violation of Section 17.50 of the Rules. Contrary
to Barinowski's contention, its delayed painting of the tower was
not a measure taken to prevent a future violation of Section
17.50 because the condition of Barinowski's tower already
violated Section 17.50 of the Rules. Because Barinowski knew its
antenna structure needed to be painted, but made a conscious
decision to wait to paint it, we find that its violation of
Section 17.50 was willful.10
7. Finally, Barinowski asserts that its prior
arrangement to have the tower painted renders the forfeiture
unwarranted and, thus, it should be cancelled. We note that
Barinowski contracted on May 31, 2002, prior to the inspection,
to have the tower painted. The inspection was conducted on
August 28, 2002 and, because Barinowski had made a business
decision not to paint the tower until he acquired a new tenant,
the tower still was not painted. The tower was not painted until
October 4, 2002, at least four months after Barinowski contracted
to have the tower painted. Although we do not believe that
waiting four months to remedy such a serious safety hazard is an
exercise of good faith sufficient to justify canceling the
forfeiture, we do believe that identifying the need to repaint
the tower, and pre-paying for the future painting of the tower
prior to any notice of inspection 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 eight
thousand dollars ($8,000) based on Barinowski's good faith
efforts to comply with Section 17.50 of the Rules prior to being
informed of the violation.11
8. We have examined Barinowski'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 Barinowski willfully violated Section 17.50 of the
Rules. However, we also find that reduction of the proposed
monetary forfeiture to $8,000 is warranted.
IV. ORDERING CLAUSES
9. 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,12 Barinowski Investment Company, LP, IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eight thousand dollars
($8,000) for willfully violating Section 17.50 of the Rules.
10. 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.13
Payment shall 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 NAL/Acct.
No. 200232480030, and FRN 0006-1664-09. Requests for full
payment under an installment plan should be sent to: Chief,
Revenue and Receivables Group, 445 12th Street, S.W., Washington,
11. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested and by First
Class Mail to Barinowski Investment Company, LP, 2278 Wortham
Lane, Grovetown, GA 30813.
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.
200232480030 (Enf. Bur., Atlanta Office, released September 30,
3 Barinowski includes a copy of an invoice for painting of
the antenna structure, which is dated May 31, 2002.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 17.23. This section requires conformity with
the Advisory Circular for each new or altered structure to be
registered on or after January 1, 1996.
8 FAA Advisory Circular AC 70/7460-1J, Obstruction Marking
and Lighting, Chapter 3, Marking Guidelines, Paragraph
9 See Pinnacle Towers, Inc., 18 FCC Rcd 6419, 6419-6420
(Enf. Bur. 2003).
10 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).
11 See Access.1 Communications Corp. - NY, DA 03-3412 (Enf.
Bur, released October 30, 2003) (good faith reduction given where
tower owner identified the need to repaint the tower, scheduled
the tower for repainting, and repainted the tower prior to any
notice of inspections or issuance of the NAL).
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.