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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
Adopted: March 7, 2003 Released: March 11, 2003
By the Chief, Enforcement Bureau:
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.
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
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
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
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
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
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
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
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,
3 The Stenton Avenue tower was painted but apparently only for
the purpose of extending the life of the structure, not for
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
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
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.