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

In the Matter of                )
                                )
Barnacle Broadcasting Company, Ltd   )  File No. EB-02-AT- 410
                                )
                                )
Owner of Antenna Structure # 1063961 )  NAL/Acct.             No. 
200332480014
In Port Royal, South Carolina   )
Atlanta, Georgia                )    FRN 0006-1527-55       

                           FORFEITURE ORDER


Adopted: July 22, 2004                  Released: July 26, 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 Barnacle Broadcasting Company, Ltd (``Barnacle'') for 
willful violation of Section 17.51 of the Commission's Rules 
(``Rules'').1  The violation involves Barnacle's failure to 
exhibit all red obstruction lighting from sunset to sunrise on 
its antenna structure # 1063961 registered in Port Royal, South 
Carolina.   
        2.     On January 21, 2003, the Atlanta Office issued a 
Notice of Apparent Liability (``NAL'') to Barnacle for a 
forfeiture in the amount of ten thousand dollars ($10,000) citing 
willful and repeated violation of Section 17.51 of the 
Commission's Rules.2  Barnacle filed its response to the NAL on 
February 27, 2003.
II.  BACKGROUND


        3.     On November 25, 2002, in response to a report of 
an unlighted tower, a Commission field agent from the 
Commission's Atlanta Field Office (``Atlanta Office'') inspected 
Barnacle's antenna structure and determined that none of the red 
obstruction lights were lighted during evening hours.  The FAA 
had no record of any report of a lighting outage for this 
structure.  The agent determined that Barnacle was the owner of 
the 382 meter (1253 feet) tall antenna structure, ASR # 1063961.  
This violation resulted in the Atlanta Office's issuance of an 
NAL to Barnacle on January 21, 2003.
        4.     Barnacle replied to the NAL admitting that it owns 
the instant structure.  However, Barnacle asserted multiple 
reasons why the forfeiture should be reduced or cancelled.  
Barnacle stated that it did not know of the light outage, 
therefore the violation was not willful.  Further, Barnacle 
asserts that it was not repeated because a NOTAM was issued on 
the second day.  Barnacle also contended: it had no prior 
offenses; it was not a licensee, or applicant for a license, now 
or at the time of the violation; it never received notice from 
the Commission of its obligations under 303(q) of the Act or Part 
17 of the Rules; the structure is in an area prone to lightning 
damage; and it acted promptly to repair the structure upon 
notification by the Commission Agent.            
        5.     Finally, Barnacle requested cancellation of the 
forfeiture asserting an inability to pay the forfeiture.  
Barnacle, however, submitted only a Balance Sheet, Mortgage Note 
and Income Statement for 2002 created by the President of 
Barnacle as documentation in support of its request.   
III. DISCUSSION
        6.     The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Communications 
Act of 1934, as amended (``Act''),3 Section 1.80 of the Rules,4 
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 Barnacle'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.5  
         7.      Section 17.51 of the Rules requires that all red 
obstruction lighting be exhibited from sunset to sunrise unless 
otherwise specified.  Further, Section 17.47 of the Commission's 
Rules6 requires that the owner of a registered antenna structure 
observe the lights at least once each 24 hours either visually or 
by observing an automatic indicator; or alternatively provide and 
maintain an automatic alarm system designed to detect any failure 
of the lights and to notify the owner of the failure.  Barnacle 
states its structure is registered and that it did not meet the 
owner's obligations; rather, it chose to rely upon others to 
inform it of any light outage. Barnacle does not provide any 
evidence that its choice met the requirements of Section 17.47.  
           8.    Barnacle states that those upon whom it relied 
did not inform Barnacle of the lighting outage but provides no 
evidence that there was a procedure in place for these others to 
monitor the lights and notify Barnacle in the event the lights 
were out.  Further, Barnacle contends that because it was unaware 
of the light outage, the violation was not willful.  Barnacle 
cites the Review Board holding in David R. Price, 70 RR 2d 803 
(Rev. Bd. 1992) for the erroneous proposition that the definition 
of willful requires actual notice of a violation by the licensee 
in order to be willful.  We disagree.  The Review Board holding 
in Price is based upon an entirely different set of facts in 
which the licensee's towers were not lighted because the licensee 
had not paid its electric bill.  Additionally, in  Price, the 
Review Board noted that Price misconstrued the definition of 
willful, when he argued that his failure to light the towers can 
not be willful if complying with the lighting requirements is 
impossible citing Section 312(f)(1) of the Act7 which states:  
     The term ``willful when used with reference to the 
     commission or omission of any act, 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 or by a treaty ratified by the 
     United States.
Further, in Southern California Broadcasting Co.8, the Commission 
held that Section 312(f)(1) of the Act also applies to Section 
503(b).  Accordingly, Barnacle need not have had actual knowledge 
that the lights were out to be found to have committed a 
``willful'' violation.  Barnacle neither mentions Southern 
California, nor attempts to distinguish it.  Nor does Barnacle 
mention or distinguish Eure Family Limited Partnership, 16 FCC 
Rcd  21302 (Enf. Bur. 2001), recon. denied, 17 FCC Rcd 7402 (Enf. 
Bur. 2002), review denied, 17 FCC Rcd 21861, 21863-21864 (2002), 
which is apposite to the instant case.9  Based on the FCC agent's 
observations during his November 25 investigation, and Commission 
precedent, we find that Barnacle willfully10 violated Section 
17.51 of the Rules.  Because we conclude that Barnacle's 
violation was willful, we need not address whether it was 
repeated.11  
          9.      We also reject Barnacle's assertions that, 
under Section 303(q) of the Act,12 as a non-licensee antenna 
structure owner, it was not responsible for following Commission 
Rules and that the Commission had an obligation to inform it as 
to its duties as owner of the antenna structure.  The 
notification to tower owners for this rule was given through 
publication in the Federal Register upon promulgation of Section 
17.51 of the Commission's Rules.13  Further, and more to the 
point, Barnacle's President registered the antenna structure with 
the FCC on April 28, 1999, and included the FAA study number 98-
ASO-4417-06, which provides the lighting and painting 
requirements necessary for an antenna structure to be deemed no 
hazard to air navigation.  In other words, Barnacle provided the 
FAA lighting and painting requirements to the FCC, thus making 
clear he had notice of such requirements.  
       10.        Moreover, Barnacle, as a former licensee was 
responsible for knowing both its obligations under the Act and 
the Commission's Rules,14 and that Part 17 of the Rules applied 
to licensees, permittees and tower owners.  The Commission's 
Rules15 hold Barnacle responsible for compliance and do not 
excuse ignorance of those requirements.16  Barnacle, as a former 
licensee, cannot now conveniently disavow knowledge after his 
license terminated.  As a current tower owner, Barnacle is 
responsible for both knowing the Commission's Rules and complying 
with them.17  In the instant case, Barnacle, as a licensee,  was 
subject to the very rules, Section 303(q) of the Act and Section 
17.51 of the Rules, of which he now claims to have had no notice.  
Accordingly, Barnacle's argument that its violation was mitigated 
because it was not informed by the Commission of its obligation 
to comply with Section 303(q) of the Act and Part 17 of the 
Commission Rules is without merit.18
        11.     Nor can Barnacle's remedial efforts to establish 
a system to assure compliance result in a cancellation or 
reduction of the forfeiture.  Barnacle's 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.    Barnacle's  request for reduction  of the  forfeiture 
based upon its inability  to pay was not  accompanied by its  tax 
returns  or  other  satisfactory  documentation.   The  NAL  gave 
Barnacle specific requirements about what documents it needed  to 
submit  that  would  support  a  claim  of  inability  to  pay.19      
Barnacle provided no reliable information regarding its revenues.  
The Commission generally  relies on  gross revenues  as the  best 
evidence  of  inability  to  pay.20   Accordingly,  we  are   not 
persuaded by  Barnacle's financial  hardship claim  and thus,  we 
find that there  is no  basis to reduce  the assessed  forfeiture 
amount due to inability to pay.
       13. We have examined Barnacle'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 Barnacle  failed to exhibit all red obstruction 
lighting on its tower from sunset to sunrise in willful violation 
of Section 17.51 of the Rules.  We have also reviewed the 
Commission's database regarding prior violations and find that 
Barnacle has no record with the Commission of a prior violation.  
Considering the prior record of Barnacle Broadcasting Company, 
Ltd, we agree that the forfeiture amount should be reduced.  
Accordingly, we reduce the $10,000 forfeiture proposed by the 
Notice of Apparent Liability to $8,000 on the basis of a history 
of overall compliance with Commission Rules.
IV.  ORDERING CLAUSES
       14.      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,21 Barnacle Broadcasting Company, Ltd IS 
LIABLE FOR A MONETARY FORFEITURE in the amount of eight thousand 
dollars ($8,000) for willful violation of Section 17.51 of the 
Rules.
        15.        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.22  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. 200332480014 and FRN 0006-1527-55.  
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. 20554.23  
         16.        IT IS FURTHER ORDERED that a copy of this 
Order shall be sent by First Class and Certified Mail Return 
Receipt Requested to Mr. Pegram Harrison, President, Barnacle 
Broadcasting Company, Ltd., 3 Yonah Drive, Atlanta, GA 30309 and 
its Counsel, Benjamin J. Lambiotte, GARVEY SCHUBERT BARER, 1000 
Potomac Street, N.W., Fifth Floor, Washington, D.C. 20007.
                    FEDERAL COMMUNICATIONS COMMISSION            
                         
                         David H. Solomon
                         Chief, Enforcement Bureau 


_________________________

1 47 C.F.R.  17.51.
2 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200332480014 (Enf. Bur.,  Atlanta  Office,  released January  21, 
2003).
3 47 U.S.C.  503(b).
4 47 C.F.R.  1.80.
5 47 U.S.C.  503(b)(2)(D).
6 47 C.F.R.  17.47.
7 47 U.S.C.  312(f)(1).
8 See,  Southern  California Broadcasting  Co.,  6 FCC  Rcd  4387 
(1991). 
9 In Eure, supra,  the licensee attempts to  assign blame for  an 
unlit tower  to an  agent with  whom Eure  contracted to  receive 
notice of  a tower  light  outage.  The  Commission  specifically 
declined to relieve  the licensee  of its  obligations under  the 
rules due to an agent's failure to perform its duties.  
10  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., supra.
11 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).
12 47 U.S.C.   303(q) provides in pertinent  part, that a  tower 
owner is responsible for maintaining required tower painting  and 
licensing when  the owner  is neither  a Commission  licensee  or 
permittee.  
13 See 61 FR 4364, Feb. 6, 1996.
14 47 C.F.R.  0.1, et. seq.
15 See note 6, supra.
16 See Eure Family Limited Partnership, supra.
17 Id.
18 Further, we note that Barnacle's President states that he  was 
``generally aware'' of the obligations of 303(q) and Part 17 from 
the period when Barnacle held an FM station license.
19 NAL,  supra,    12.   These  include  3  years  tax  returns; 
financial documents  prepared  to generally  accepted  accounting 
practices; or  other reliable  and objective  documentation  that 
accurately reflects petitioner's current financial status.
20 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). 
21 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
22 47 U.S.C.  504(a).
23 See 47 C.F.R.  1.1914.