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


In the Matter of                 )
                                )
Fun Media Group, Inc.            )    File Number EB-02-AT-379
Owner of Antenna Structure       )
#1043249 in                      )    NAL/Acct. No. 200332480012
Scant City, Alabama              )
Arab, Alabama                    )    FRN: 0007-3298-65
                                )
                                )


                        FORFEITURE ORDER

   Adopted:  June 4, 2004               Released:  June 8, 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 Fun Media Group,  Inc. (``Fun Media Group''),  owner 
of antenna structure     # 1043249  in Scant  City, Alabama,  for 
willful violation  of Section  17.50  of the  Commission's  Rules 
(``Rules'').1  The  noted violation  involves Fun  Media  Group's 
failure to  maintain  good  visibility of  the  required  antenna 
structure obstruction marking.

     2.   On December  6,  2002,  the District  Director  of  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 Fun  Media 
Group for willful and repeated  violation of Section 17.50.   Fun 
Media Group filed  a response  to the  NAL on  January 13,  2003, 
which it supplemented on January 21, 2003 and April 23, 2003.  

                         II.  BACKGROUND

     3.   Fun Media Group is the  registered owner of a  500-foot 
tall antenna  structure located  in  Scant City,  Alabama.   This 
structure is assigned antenna structure registration (``ASR'')  # 
1043249.  The  structure  is assigned  obstruction  lighting  and 
marking requirements  that  include alternate  painted  bands  of 
aviation orange and white. 

     4.   On October  29, 2002,  the  Atlanta Office  received  a 
complaint from the pilot of  a private airplane that the  instant 
tower was severely rusted  causing it to blend  in with the  area 
terrain.  On October 30, 2002,  an agent from the Atlanta  Office 
inspected  antenna   structure   registration  #   1043249   from  
distances of 100 feet to  one-quarter mile and observed that  the 
severely chipped and faded paint of the structure precluded  good 
visibility of the antenna structure in violation of Section 17.50 
of the Commission's Rules.  

     5.   On December  6,  2002,  the District  Director  of  the 
Atlanta Office issued a NAL for a $10,000 forfeiture to Fun Media 
Group for failure to maintain good antenna visibility in  willful 
and repeated violation of Section 17.50 of the Rules.  Fun  Media 
Group filed a response  to the NAL on  January 13, 2003.  In  its 
response Fun Media Group disagreed  that the tower structure  was 
either chipped  or rusted   and asserted  that prior  to the  NAL 
receipt, it reviewed  the structure multiple  times during  2002, 
and  saw  no  chipping  or  rust.    It  further  stated  it  had 
considered painting the  tower structure that  summer, but  chose 
not to  do  so.  The  response  further alleged  that  the  agent 
observed the tower  from a  distance, making  observation of  any 
chipped paint or rust difficult.     

     6.   Fun Media Group  submitted a letter  of intent3 from  a 
painting company to demonstrate that it had committed to have the 
tower painted  prior  to receipt  of  the NAL.   Fun  Media  also 
claimed that  the FCC  agent erred  in failing  to offer  it  the 
opportunity to correct the  alleged violation before issuing  the 
NAL.  Additionally, the  licensee submitted  statements from  two 
parties commenting on the good  visibility  and condition of  the 
tower.

     7.   Further, Fun Media Group claimed it has no prior record 
of violation with the Commission.  Finally, the licensee  claimed 
it is a  small station and  submitted tax returns  for the  years 
1999-2002, in support of its inability to pay claim.   

                        III.  DISCUSSION

          8.   The proposed forfeiture amount in this case was 
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).  In examining Fun Media Group'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 such other matters 
as justice may require.6
          9.   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      # 1043249, owned by Fun Media Group, has 
specified lighting and painting requirements that include 
painting the structure with alternating bands of aviation orange 
and white.  An agent from the Atlanta Office observed the antenna 
structure from distances of 100 feet to one-quarter of a mile and 
noted that the antenna structure had chipped and faded orange and 
white paint, causing the structure to have an overall dark 
appearance.  Fun Media Group asserted that it periodically 
checked the tower paint and concluded that repainting was not 
required.  It therefore chose not to repaint the tower prior to 
inspection.  Based on the agent's conclusions and the licensee's 
failure to meet the requirements of Section 17.50, we conclude 
that Fun Media Group willfully7  violated this section of the 
Rules.  See William Needham and Lucille Needham Owners of Antenna 
Structure No. 1064409, 18 FCC Rcd 5521, 5522 (Enf. Bur. 2003), 
recon. granted on other grounds, DA 04-1272 (Enf. Bur. Released 
May 7, 2004).   
          10.  In its response to the NAL, Fun Media Group 
presented multiple arguments in support of its position that the 
forfeiture should be cancelled.  First, Fun Media Group asserted 
that the agent observed the tower from a distance, thus, making 
observation of whether the tower's paint was chipped or faded 
difficult.  The agent observed the tower at distances from 100 
feet to one-quarter mile, consistent with established procedure 
and determined based on his observations and experience the tower 
structure paint was clearly and obviously chipped and the paint 
faded.  The statements by third parties regarding the lack of 
rust or good visibility of the tower do not supercede the agent's 
determination.  
          11.  Further, Fun Media Group asserts that it arranged 
to have the tower painted following the inspection.  It is well 
established that remedial efforts to correct the violation, after 
the violation was discovered by the Commission are not a 
mitigating factor.  See  Seawest Yacht Brokers, 9 FCC Rcd 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.'' See also, Station 
KGVL, Inc., 42 FCC 2d 258, 259 (1973).  
          12.  Fun Media Group complained that it was not 
provided information regarding the violation and a chance to 
rectify the violation prior to the issuance of an NAL, and thus, 
claims the forfeiture should be cancelled.  There is no 
requirement that the Commission issue a Notice of Violation (NOV) 
or provide a violator an opportunity to cure a violation prior to 
issuance of a Notice of Apparent Liability (NAL).  See 47 C.F.R.  
 1.89; A.T.& T. Wireless Services, Inc., 17 FCC Rcd 21866, 21871 
n.20; and WOYK, Inc. 18 FCC Rcd 15181, 15182, fn.8 (Enf. Bur. 
2003).  Moreover, precedent holds that a failure to clean or 
repaint its antenna structure as often as necessary to maintain 
good visibility is a serious violation warranting a forfeiture 
assessment.  See In the Matter of Midwest Tower Partners, LLC, 18 
FCC Rcd 12921 (Enf. Bur. 2003); In the Matter of Gold Coast 
Broadcasting Company Santa Monica, California, 18 FCC Rcd. 8576 
(Enf. Bur. 2003); and In the Matter of Pinnacle Towers, Inc.,  18 
FCC Rcd 6419 (Enf. Bur.  2003).  
          13.  Finally, we have reviewed the financial 
information provided by the Fun Media Group to support its claim 
of inability to pay and we find that this information does not 
provide a basis for cancellation of the forfeiture as the 
forfeiture amount is a small percentage of Fun Media Group's 
gross revenues.  It is well established that a licensee's gross 
revenues are the best indicator of its ability to pay a 
forfeiture. 8  We find that Fun Media Group's gross revenues are 
well within Commission precedent for a forfeiture of $10,000. 9    
          14.  We have examined Fun Media Group'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 Fun Media Group, Inc. failed to maintain good 
visibility of the required antenna structure obstruction marking 
in willful violation of Section 17.50 of the Rules.  Since we 
have found the violation to be willful, we need not address 
whether it is repeated as found in the NAL.10  We have reviewed 
the Commission's database regarding prior violations and find 
that Fun Media Group has no record with the Commission of a prior 
violation.  Considering the prior good behavior of Fun Media 
Group, we agree that the forfeiture amount should be reduced.  
Accordingly, we reduce the $10,000 forfeiture proposed by the 
Notice of Violation to $8,000 on the basis of a history of 
overall compliance with Commission Rules.
                         IV. ORDERING CLAUSES
     15.  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,11   Fun Media  Group, Inc.  IS LIABLE  FOR A  MONETARY 
FORFEITURE in the amount of  eight thousand dollars ($8,000)  for 
failure to clean  and repaint its  antenna structure to  maintain 
good visibility, in  willful violation  of Section  17.50 of  the 
Rules.

     16.  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.12  
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. 
200332480012 and  FRN 0007-3298-65.   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. 
20554.13

     17.  IT IS FURTHER ORDERED that  copies of this Order  shall 
be sent by Certified Mail  Return Receipt Requested and by  First 
Class Mail to Fun Media  Group, Inc. 981 North Brindlee  Mountain 
Parkway, Arab, Alabama 35016 and  its counsel, M. Scott  Johnson, 
Gardner, Canton &  Douglas 1301  K Street, N.W.  Suite 900,  East 
Tower, Washington, D.C. 20005.
                         FEDERAL COMMUNICATIONS COMMISSION
                    

                                                                  
                         David H. Solomon
                                                            
Chief, Enforcement Bureau
           



_________________________

1 47 C.F.R.  17.50.
2  Notice  of  Apparent  Liability  Forfeiture,  NAL  /Acct.  No. 
200332480012 (Enf.  Bur.  Atlanta Office,  released  December  6, 
2002).
3 Dated November 26, 2002, promising painting of the tower within 
three weeks.
4 47 U.S.C.  503(b).
5 47 C.F.R.  1.80.
6 47 U.S.C.  503(b)(2)(D).
7 Section  312(f0(2)  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....''   47  U.S.C.    312(f)(1).   This 
definition  also  applies  to   Section  503(b).   See   Southern 
California Broadcasting Co., 6 FCC Rcd 4387 (1991).
8 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,  2089 
(1992).
9 Id. at 2089  (1991) (Forfeiture not  deemed excessive where  it 
represented approximately 2.02  percent of  the violator's  gross 
revenues).  See also, 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); Afton Communications Corp., 7 FCC Rcd 6741, 6742 
(Comm. Carrier Bur. 1992) (Forfeiture not deemed excessive  where 
it represented  approximately  3.9 percent  of  violator's  gross 
revenues).
10 47 U.S.C.  312 (a)(4) provides administrative sanctions ``for 
willful or repeated violation of, or willful or repeated  failure 
to observe any provision of this Act or any rule or regulation of 
the Commission authorized by this Act or by a treaty ratified  by 
the United States.'' (Emphasis added).
11 47 C.F.R.  0.111, 0.311, 0.180(f)(4).
12 47 U.S.C.  504(a).
13 See 47 C.F.R.  1.1914.