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                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
                                )
C. Elton Crews, Inc.            )    File No. EB-02-TP-382
                                )
Owner of Antenna Structure # 1204823 in )    NAL/Acct.        No. 
200332700004
Avon Park, Florida              )
                                )    FRN 0006-6405-10       

                        FORFEITURE ORDER 

Adopted: May 3, 2004                    Released: May 6, 2004
 
By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
        monetary  forfeiture in  the  amount  of  eight  thousand 
        dollars ($8,000) to C. Elton Crews, Inc. (``Crews'')  for 
        willful   violation   of   Section   17.51(b)   of    the 
        Commission's Rules (``Rules'').1  The violation  involves 
        Crews'  failure  to   continuously  exhibit  all   medium 
        intensity  obstruction  lighting  on  its  tower   during 
        daylight hours.

     2.   On October 29,  2002, the  Commission's Tampa,  Florida 
        Field  Office  (``Tampa  Office'')  issued  a  Notice  of 
        Apparent Liability for Forfeiture (``NAL'') to Crews  for 
        a  forfeiture in  the  amount  of  ten  thousand  dollars 
        ($10,000).2  Crews  filed  its  response to  the  NAL  on 
        November 26, 2002.

                         II.  BACKGROUND

     3.   Antenna structure #1204823 is  located at 27 33'  38'' 
        latitude, 081 29'  36'' longitude  (Avon Park,  Florida) 
        and  is  registered  to  Crews.   The  antenna  structure 
        registration  (``ASR'')   includes   a   requirement   to 
        maintain a  dual  lighting system  that  includes  medium 
        intensity   obstruction    lighting    during    daylight 
        operation.  At 1:55  p.m. on  July 26,  2002, two  agents 
        from  the  Tampa   Office  inspected  antenna   structure 
        #1204823.  During  that inspection,  the agents  observed 
        that there  was  no white  medium  intensity  obstruction 
        lighting on  the  tower,  thus, none  was  in  operation, 
        although the  nightly required  red beacon  lighting  was 
        present.3  The agents  further observed  that the  cables 
        on  the  southwest  side  of  the  tower  obstructed  the 
        tower's  visibility.  On  September  25,  2002,  a  Tampa 
        Office agent telephoned  and spoke to  Crews' owner,  Mr. 
        C. Elton  Crews, who  stated that  to his  knowledge,  no 
        daylight strobe  lights had  ever been  exhibited on  the 
        antenna structure.  

     4.   On October 29, 2002, the  Tampa Office issued a NAL  to 
        Crews  for the  violation  observed  on  July  26,  2002.  
        Crews replied to  the NAL on November  26, 2002, and  did 
        not dispute  the  facts  set forth  in  the  NAL.   Crews 
        stated that it was unaware of the full array of  lighting 
        requirements  to which  it  is  subject.   Crews  further 
        asserted  that the  Commission  failed  to  consider  its 
        inability  to  pay  and  past  record  of  compliance  in 
        issuing the NAL  and asked that the  NAL be cancelled  or 
        substantially  reduced.4   In   support  thereof,   Crews 
        submitted its tax returns  from the years 2001, 2000  and 
        1999 and  stated that  it had  never been  cited for  any 
        violation of Commission rules. 

                           III. DISCUSSION

     5.   The  proposed  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 
        Crews 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  such 
        other matters as justice may require.7

     6.   Section 17.51(b) of the Rules requires that all  medium 
        intensity obstruction lighting be exhibited  continuously 
        unless  otherwise   specified.   The   Federal   Aviation 
        Administration  (``FAA'')  Study  (99-ASO-0326-OE)  which 
        Crews referenced when registering its antenna  structure, 
        specified lighting  requirements for  Crews' tower  which 
        includes medium intensity lighting.8   On July 26,  2002, 
        the agents observed  that medium  intensity lighting  was 
        neither   installed    nor   operative.    The    agents' 
        observations of the tower  were made during the  daylight 
        hours  and  only  the   evening  hours  red  beacon   was 
        observed.   Crews   does   not   dispute   these   facts.    
        Accordingly,  we  find  that  Crews  willfully   violated 
        Section 17.51(b)  of  the Rules   by failing  to  exhibit 
        medium intensity obstruction lighting on its tower.9

     7.   Crews' request for reduction of the forfeiture based on 
        an inability  to  pay claim  is  accompanied by  its  tax 
        returns from 1999  through 2001.   In analyzing  economic 
        hardship claims, as  the Policy  Statement explains,  the 
        Commission generally looks to a company's gross  revenues 
        as reasonable  and  appropriate yardsticks  to  determine 
        its ability to pay  the assessed forfeiture.10    Indeed, 
        the Commission stated that if a company's gross  revenues 
        are sufficiently  large,  the fact  that net  losses  are 
        reported, alone, does  not necessarily signify  inability 
        to pay.11  In  the instant  case, we  have carefully  and 
        independently reviewed Crews' submissions.  We find  that 
        Crews' tax returns  for 1999, 2000  and 2001 reveal  that 
        its  gross  revenues  effectively  negate  the  financial 
        hardship claim.  Specifically, we  find that the  $10,000 
        forfeiture   is    not   excessive    under    Commission 
        precedent.12   Accordingly,  we  are  not  persuaded   by 
        Crews' financial hardship claim,  and we find that  there 
        is no basis to reduce the assessed forfeiture amount  due 
        to  inability  to  pay.   However,  Crews'  assertion  is 
        correct that  it  has no  previous  citations, and  as  a 
        result we reduce  the forfeiture amount  to $8,000  based 
        on its history of overall compliance.  

     8.   We have examined Crews' 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 Crews  willfully violated Section  17.51(b) 
        of the Rules.   However, we  find a  sufficient basis  to 
        reduce the $10,000 forfeiture to $8,000.

     9.   Because Crews  fails to  provide information  detailing 
        its efforts to correct  the noted lighting violation,  we 
        will require, pursuant  to Section 308(b)  of the  Act,13 
        that  Crews  report  to  the  Enforcement  Bureau  within 
        thirty (30) days of the release of this Order whether  it 
        has achieved  compliance  with Section  17.51(b)  of  the 
        Rules.  Crews' report  must be submitted  in the form  of 
        an affidavit  signed by  an officer  or director  of  the 
        licensee.  If Crews fails to  submit such a report or  we 
        find  that  Crews  has  not  come  into  compliance  with 
        Section 17.51(b),  we will  consider further  appropriate 
        enforcement action.

                    IV. ORDERING CLAUSES

     10.  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,14   Crews  IS  LIABLE  FOR  A 
        MONETARY  FORFEITURE in  the  amount  of  eight  thousand 
        dollars  ($8,000) for  failure  to  light  the  captioned 
        antenna  structure,  in  willful  violation  of   Section 
        17.51(b) of the Rules.

     11.  IT IS ALSO ORDERED that, pursuant Section 308(b) of the 
        Act, Crews must submit the report described in  Paragraph 
        9, above, within 30 days from the release of this  Order, 
        to:   Federal   Communications  Commission,   Enforcement 
        Bureau, Spectrum Enforcement  Division, 445 12th  Street, 
        S.W., Room 7-A 820,  Washington, D.C.  20554,  Attention:  
        Peter Waltonen, Esquire.

     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.15  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.  200332700004 and FRN  0006-6405-
        10.  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. 20554.16

     13.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
        be sent by First Class and Certified Mail Return  Receipt 
        Requested to C.  Elton Crews, Inc.,  P.O. Box 1117,  Avon 
        Park, FL  33826-1117  and its  Counsel, Russell  H.  Fox, 
        Esq., Mintz,  Levin,  Cohn, Ferris,  Glovsky  and  Popeo, 
        P.C.,  701   Pennsylvania   Avenue,  N.W.,   Suite   900, 
        Washington, D.C., 20004..

                              FEDERAL COMMUNICATIONS COMMISSION  

                         
                              David H. Solomon
                              Chief, Enforcement Bureau 


_________________________

  1 47 C.F.R.  17.51(b).

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200332700004 (Enf. Bur.,  Atlanta  Office,  released October  29, 
2002).    

  3 We note that  the agents further observed that the cables  on 
the  southwest  side   of  the  tower   obstructed  the   tower's 
visibility, but, the NAL did  not include a violation of  Section 
17.23,of the Rules, 47 C.F.R.  17.23. 

  4 Crews states that it is taking measures to ensure  compliance 
with the Commission's painting requirements, but fails to comment 
on its  remedial efforts  with respect  to its  violation of  the 
Commission's lighting requirements.

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

  6 47 C.F.R.  1.80.

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

  8 Based on  the medium intensity obstruction lighting  required 
by both Crews' FAA  Study and ASR, we  find Crews' claim that  it 
was unaware of the lighting requirements to be without merit.

  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 See Forfeiture Policy  Statement, 12 FCC Rcd at 17106-07,   
43.  See also  PJB Communications  of Virginia, Inc.,  7 FCC  Rcd 
2088, 2089,  8 (1992).

  11  See, e.g.,  Local Long  Distance, Inc.,  15 FCC  Rcd  24385 
(2000), recon.  denied, 16  FCC  Rcd 10023,  10025,   6  (2001); 
Independent Communications, Inc., 14  FCC Rcd 9605 (1999),  recon 
denied, 15 FCC Rcd 16060,  2 (2000); Hoosier Broadcasting Corp., 
14 FCC Rcd 3356 (CIB 1999), recon. denied, 15 FCC Rcd 8640, 8641, 
 7 (Enf. Bur.  2000).  See also, Alpha  Ambulance, Inc., 19  FCC 
Rcd 2547 (2004).

  12  See  PJB  Communications,  at  2089(forfeiture  not  deemed 
excessive where it represented approximately 2.02 percent of  the 
violator's gross revenues); Local Long Distance, Inc., 16 FCC Rcd 
at 10025 (forfeiture  not deemed excessive  where it  represented 
approximately 7.9  percent  of the  violator's  gross  revenues); 
Hoosier Broadcasting  Corporation, 15  FCC Rcd  8640, 8641  (Enf. 
Bur. 2002) (forfeiture not deemed excessive where it  represented 
approximately 7.6 percent of the violator's gross revenues).

  13 47 U.S.C.  308(b)

  14 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  15 47 U.S.C.  504(a).

  16 See 47 C.F.R.  1.1914.