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

In the Matter of                )
                                )
Morgan Tower, Inc.              )    File No. EB-01-PA-331
                                )
Owner of Antenna Structure      )    NAL/Acct. No. 200232400004
Registration # 1060096          )
Cinnaminson, New Jersey         )    FRN 0006-3665-04       

                        FORFEITURE ORDER 

Adopted:   March 7, 2003                Released:  March 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  Morgan Tower,  Inc.  (``Morgan''), 
        for  willful  violation  of   Section  17.21(a)  of   the 
        Commission's Rules  (``Rules'').1   The  noted  violation 
        involves Morgan's failure to  light and adequately  paint 
        the captioned antenna structure.

     2.   On  June  19,  2002,  the  Commission's   Philadelphia, 
        Pennsylvania, District  Office (``Philadelphia  Office'') 
        issued a  Notice  of Apparent  Liability  for  Forfeiture 
        (``NAL'') to Morgan  for a  forfeiture in  the amount  of 
        ten  thousand  dollars  ($10,000).2   Morgan  filed   its 
        response to the NAL on July 19, 2002.

                         II.  BACKGROUND

     3.   Morgan owns  an  antenna structure,  antenna  structure 
        registration (``ASR'')  number 1060096,  located at  7200 
        Stenton Avenue in  Philadelphia, Pennsylvania  (``Stenton 
        Avenue tower'').  On November 29, 2001, while  inspecting 
        radio apparatus  located at  the same  address, an  agent 
        from the  Philadelphia Office  noticed that  the  antenna 
        structure had no  painting for  visibility3 or  lighting.  
        The ASR  for that  antenna structure  then indicated  and 
        still  indicates  that  the   height  of  the  tower   is 
        approximately  288  feet  above   the  ground  and   that 
        painting, top beacon lighting and mid-point lighting  are 
        required.  

     4.   On January 10, 2002,  the Philadelphia Office issued  a 
        Notice of Violation (``NOV'') to Morgan for violation  of 
        Section 17.21(a) of  the Rules.  In  its response to  the 
        NOV,  filed  on  February  20,  2002,  Morgan   asserted, 
        through its contractor, that:   ``. . . this  site . .  . 
        originally had been  given no hazard  status by the  FAA.  
        This . . . is the  reason the . . . tower wasn't  painted 
        or lit.''  The  response to the  NOV also indicated  that 
        Morgan could not locate or obtain a copy of the  original 
        no hazard determination and  that it had requested a  new 
        No  Hazard   determination   by  the   Federal   Aviation 
        Administration (``FAA'').

     5.   On June 19, 2002, the Philadelphia Office issued a  NAL 
        for a forfeiture in the  amount of $10,000 to Morgan  for 
        failure to paint and  light its Stenton Avenue tower,  in 
        violation of  Section  17.21(a)  of the  Rules.   In  its 
        response, filed July 19, 2002, Morgan seeks  cancellation 
        of the monetary forfeiture.   Morgan argues that the  FAA 
        made a  No  Hazard determination  in 1985  exempting  the 
        Stenton Avenue tower from  the Commission's painting  and 
        lighting requirements.  Morgan provides the study  number 
        of  that   determination  (85-AEA-0329-OE)   but   cannot 
        provide a copy and states that  the FAA has no record  of 
        it.  Morgan does  provide a copy of  the FAA's No  Hazard 
        determination   issued   on   March   25,   2002,   which 
        specifically  requires   painting   and   lighting.    In 
        addition, Morgan  argues that  it did  not act  willfully 
        and that it ``expeditiously'' corrected the violations.4

                      III.      DISCUSSION

     6.   The forfeiture  amount in  this  case was  assessed  in 
        accordance with Section 503(b) of the Communications  Act 
        of 1934,  as  amended  (``Act''),5 Section  1.80  of  the 
        Rules,6 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 Morgan'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.

     7.   Section  17.21(a)   of  the   Rules  requires   antenna 
        structures to  be painted  and lighted  when they  exceed 
        200 feet in  height above the  ground.  Morgan's  Stenton 
        Avenue tower  is  subject to  this  requirement.   Morgan 
        contends that a No Hazard determination  (85-AEA-0329-OE) 
        by the  FAA in  1985 exempted  its Stenton  Avenue  tower 
        from this requirement.   Morgan, however, cannot  produce 
        a copy of that determination and states that the FAA  has 
        no record of it.  The Commission's records, on the  other 
        hand, indicate that the Commission assigned painting  and 
        lighting requirements to the Stenton Avenue tower on  the 
        basis of FAA determination 85-AEA-0329-OE.  Further,  the 
        Commission's tower registration data base indicates  that 
        Morgan registered  the Stenton  Avenue tower  on  January 
        27, 1999,8 assigned ASR  number 1060096.  The ASR  issued 
        to Morgan  assigned  the Stenton  Avenue tower  the  same 
        painting and lighting requirements as recommended by  FAA 
        determination  85-AEA-0329-OE  and  the  Stenton   Avenue 
        tower's  ASR  indicates  that  it  still  has  the   same 
        painting and  lighting  requirements.  We  conclude  that 
        Morgan's Stenton Avenue tower  did not have an  exemption 
        from the Commission's painting and lighting  requirements 
        and that Morgan  violated Section 17.21(a)  of the  Rules 
        by failing to paint and light its tower.   

     8.   Morgan  also  argues  that  it  did  not  ``willfully'' 
        violate the Commission's  rules.  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.9  It  is evident  from Morgan's  response  to 
        the NOV  that Morgan  made a  conscious decision  not  to 
        paint or light the  Stenton Avenue tower.10  We  conclude 
        that Morgan willfully  violated Section  17.21(a) of  the 
        Rules.

     9.   Morgan  contends  that  it  corrected  the   violations 
        expeditiously.   An  observation  on  January  29,  2003, 
        indicates that Morgan has not painted the Stenton  Avenue 
        tower for visibility  but instead has  installed a  white 
        lighting system.  Paragraph 36  of FAA Advisory  Circular 
        AC 70/7460-1K permits the substitution of white  lighting 
        for  painting  but  requires   that  the  Commission   be 
        notified.   Morgan,   however,  has   not  notified   the 
        Commission of  this substitution  and, as  a result,  the 
        ASR still indicates that  painting is required.   Morgan, 
        therefore,   is   not    yet   in   full    compliance.11  
        Furthermore,   Morgan's    installation   of    lighting, 
        completed on or about June 1, 2002, cannot be  considered 
        expeditious  because Morgan  had  been  notified  of  the 
        painting and lighting  violation more than  4 1/2  months 
        earlier, on  January 10,  2002.  In  any event,  even  if 
        Morgan had  expeditiously  corrected the  violations,  no 
        mitigation would be warranted.  As the Commission  stated 
        in Seawest Yacht  Brokers, 9 FCC  Rcd 6099, 6099  (1994), 
        ``corrective action taken  to come  into compliance  with 
        Commission rules  or  policy is  expected, and  does  not 
        nullify   or   mitigate   any   prior   forfeitures    or 
        violations.''12

     10.  We have examined Morgan'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  Morgan  willfully   violated 
        Section 17.21(a)  of  the Rules  and  find no  basis  for 
        cancellation  or  reduction   of  the  proposed   $10,000 
        monetary forfeiture.

                        IV.  ORDERING CLAUSES

     11.  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  Morgan  IS  LIABLE  FOR  A 
        MONETARY  FORFEITURE  in  the  amount  of  ten   thousand 
        dollars ($10,000)  for failure  to light  and  adequately 
        paint  the  captioned   antenna  structure,  in   willful 
        violation of Section 17.21(a) of the Rules.

     12.  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 
        reference NAL/Acct. No.  200232400004 and FRN  0006-3665-
        04.  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. 20554.15

     13.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
        be sent by First Class and Certified Mail Return  Receipt 
        Requested to Morgan Tower, Inc., 700 Route 130 N.,  Suite 
        204, Cinnaminson, New Jersey 08077.

                              FEDERAL COMMUNICATIONS COMMISSION

                         


                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

  1 47 C.F.R.  17.21(a).  

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232400004 (Enf. Bur., Philadelphia  Office, released June  19, 
2002).    

  3 The Stenton Avenue tower was painted but apparently only  for 
the purpose  of extending  the  life of  the structure,  not  for 
visibility.

  4 According  to its response to  the NAL, Morgan completed  the 
installation of tower lighting on or about June 1, 2002.

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

  6 47 C.F.R.  1.80.

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

  8 Only  towers having  painting and  lighting requirements  are 
required to be  registered.  See  Section 17.4 of  the Rules,  47 
C.F.R.  17.4.

  9  Section 312(f)(1)  of the  Act, 47  USC   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); see also  Nan Tan Computer  Co., 9 FCC  Rcd 
3092 (1994).

  10 See Paragraph 4, supra.

  11 To  bring its Stenton Avenue  tower into compliance,  Morgan 
must file FCC Form  854 together with a  copy of the most  recent 
FAA determination and  a statement describing  the change in  the 
tower's marking and lighting.

  12  See also  Radio Station  KGVL,  Inc., 42  FCC 2d  258,  259 
(1973); and  Executive  Broadcasting Corp.,  3  FCC 2d  699,  700 
(1966).

  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.