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

In the Matter of                        )
                              )    File No. EB-01-NF-276
Tidewater Communications, Inc.          )    NAL/Acct. No. 
200232640001
Chesapeake, Virginia                    )    FRN: 0003-3044-
90


                MEMORANDUM OPINION AND ORDER

     Adopted:  March 24, 2003                Released:  
March 26, 2003

By the Chief, Enforcement Bureau:

                      I.   Introduction

     1.   In this Memorandum  Opinion and Order (``Order''), 
we  grant Tidewater  Communications, Inc.'s  (``Tidewater'') 
petition  for  reconsideration  of a  Forfeiture  Order1  we 
issued  imposing  a  $10,000 forfeiture  assessment  against 
Tidewater for  willfully violating  Section 17.51(a)  of the 
Commission's  Rules   (``Rules'').2   The   noted  violation 
involves Tidewater's failure to  light its Windsor, Virginia 
antenna  structure.3  On  June 11,  2002, Tidewater  filed a 
petition for  reconsideration of  the Forfeiture  Order.  As 
explained below, we cancel the $10,000 forfeiture.
   
                       II.  Background

     2.   On  November 6,  2001,  the Commission's  Norfolk, 
Virginia Resident Agent Office (``Norfolk Office'') received 
information  originating from  a  Navy  pilot's report  that 
there was  an unlit antenna structure  in Windsor, Virginia.  
After  confirming this  report by  visual inspection  on the 
same  day,   a  Resident  Agent  from   the  Norfolk  Office 
ascertained  that Tidewater  was  the owner  of the  antenna 
structure.  

     3.   On November 16, 2001,  the Norfolk Office issued a 
Notice of  Violation to Tidewater for  the antenna structure 
lighting violation.  Subsequently, on December 12, 2001, the 
Norfolk  Office issued  a Notice  of Apparent  Liability for 
Forfeiture  (``NAL''), finding  Tidewater apparently  liable 
for  a forfeiture  in the  amount of  $10,000 for  willfully 
violating Section 17.51(a) of the  Rules.4  On May 13, 2002, 
we  issued a  Forfeiture Order  to Tidewater,  which it  now 
challenges.                       III. Discussion

     4.   Tidewater  does  not   contest  that  its  antenna 
structure was  unlit.  Instead,  as it did  below, Tidewater 
contends that its automatic  antenna structure light system, 
which includes an alarm,  malfunctioned.  Thus, according to 
Tidewater, its violation was  not willful.  We rejected this 
position below for, among other reasons, Tidewater's failure 
to present any evidence  of its antenna structure inspection 
routine.5

     5.    Now, Tidewater submits a statement from its Chief 
Engineer, made  under the penalty of  perjury, regarding its 
antenna  structure  inspection  routine.  According  to  the 
Chief Engineer,  he was  at the  antenna structure  site two 
days before  the light outage.  While  performing his weekly 
maintenance   duties,   he   inspected   the   tower   light 
extinguishment alarm system and found no malfunctions.

     6.   Having a  more complete record before  us, we find 
that, in this instance, Tidewater  acted in good faith.  The 
basis  for  our  decision  rests  on  the  Chief  Engineer's 
statement, made  under the penalty of  perjury, coupled with 
the report  from Tidewater's independent  contractor showing 
that the alarm failure stemmed from a faulty monitor printed 
circuit board.   Furthermore, we concur with  Tidewater when 
it  argues  that  in   imposing  the  forfeiture  amount  we 
erroneously found that it did  not have a history of overall 
compliance.   The potential  blemish  on Tidewater's  record 
stems from an Equal  Employment Opportunity rule violation,6 
the substantive basis  for which, at a later  date, the U.S. 
Court   of    Appeals   for    the   D.C.    Circuit   found 
unconstitutional.7    Consequently,    in   an   unpublished 
decision, the  Chief of  the Commission's former  Mass Media 
Bureau (now Media  Bureau), rescinded Tidewater's forfeiture 
for the  violation.8  Applying  the two  downward adjustment 
criteria to  this case  (good faith  and history  of overall 
compliance),9   we   find   sufficient  reason   to   cancel 
Tidewater's $10,000 forfeiture.   

                    IV.  Ordering Clauses

     7.   Accordingly,  IT  IS  ORDERED  that,  pursuant  to 
Section 405 of the Act and Sections 1.80(i) and 1.106 of the 
Rules,10 Tidewater's petition for reconsideration IS GRANTED 
and the $10,000 forfeiture is IS CANCELLED.

     8.    IT IS  FURTHER ORDERED that a copy  of this Order 
shall be sent by first class mail and certified mail, return 
receipt  requested, to  Tidewater Communications,  Inc., 870 
Greenbrier Circle,  Suite 399, Chesapeake, Virginia,  and to 
its counsel, Gary S. Smithwick, Esq., Smithwick & Belendiuk, 
P.C., 5028  Wisconsin Avenue,  N.W., Suite  301, Washington, 
D.C. 20016. 
                         
                         FEDERAL COMMUNICATIONS COMMISSION

                         

                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1 Tidewater Communications, Inc., 17 FCC Rcd 8586 (Enf. Bur. 
2002).

2 47 C.F.R.  17.51(a).

3 Antenna Structure Registration number 1028287.

4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200232640001 (Enf. Bur., Norfolk Office rel. Nov. 16, 2001).

5 Tidewater Communications, Inc., 17 FCC Rcd at 8588.

6 Tidewater Communications, Inc.,  12 FCC Rcd 11,830 (1997), 
rescinded  by, Memorandum  Opinion  & Order,  File Nos.  BR-
950530UZ,  BRH-950530UT,   BRH-950530US  (Mass   Media  Bur. 
adopted Oct. 20, 1999) (unpublished).

7 Lutheran  Church-Missouri Synod  v. F.C.C., 141  F.3d 344, 
reh'g den., 154 F.3d 487, reh'g en banc denied, 154 F.3d 494 
(D.C. Cir. 1998).

8 See supra n.6.

9  See 47  C.F.R.   1.80(b)(4), Note  to Paragraph  (b)(4): 
Guidelines   for   Assessing    Forfeitures,   Section   II.  
Adjustment Criteria for Section 503 Forfeitures.

10 47 U.S.C.  405; 47 C.F.R.  1.80(i), 1.106.