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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Crown Communication, Inc. ) File Number EB-02-DV-281
Owner of Antenna Structure ) NAL/Acct No. 200332800010
Number 1035006 ) FRN 0003-2470-87
Hobbs, New Mexico )
Adopted: October 14, 2004 Released: October 18,
By: The Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000), to Crown Communication, Inc. (``Crown''), owner of
antenna structure number 1035006 located at 103º 05' 30''
longitude / 032º 42' 48'' latitude in Hobbs, New Mexico for
willful and repeated violation of Section 17.50 of the
Commission's Rules (``Rules'').1 The noted violation involves
Crown's failure to maintain good visibility of the antenna
2. On February 28, 2003, the Acting District Director of
the Commission's Denver, Colorado Field Office (``Denver
Office'') released a Notice of Apparent Liability for Forfeiture
(``NAL'')2 proposing a forfeiture in the amount of ten thousand
dollars ($10,000) to Crown for the noted violation. Crown filed
a response to the NAL on March 28, 2003.
3. On August 13, 2002, an agent from the Denver Office
inspected antenna structure registration number 1035006 and
observed that unpainted cables attached to the structure
precluded good visibility of the antenna structure in violation
of Section 17.50 of the Commission's Rules.
4. On February 28, 2003, the District Director of the
Denver Office issued an NAL proposing a $10,000 forfeiture to
Crown for failure to maintain good visibility of the antenna
structure in willful and repeated violation of Section 17.50 of
the Rules. Crown filed a response to the NAL on March 28, 2003.
Crown does not contest the underlying facts alleged in the NAL.
However, Crown states that Section 17.50 does not apply to the
instant situation and that the forfeiture must be withdrawn or
cancelled. Crown argues that the Commission's express intent
when promulgating the Rules was to grandfather the marking and
lighting requirements for existing towers, which precludes the
issuance of the instant forfeiture. According to Crown, its
tower is grandfathered pursuant to the Commission's Report and
Order3 holding ``we will not require owners to comply with new
Advisory Circulars unless such action is specifically recommended
by the FAA. For existing structures, Form 854R ... will, in most
cases, denote the specific painting and lighting requirements
originally assigned to the structure.''4
5. Crown also states that even if the latter FAA Advisory
Circular5 requiring cable painting applies, the assessment of a
forfeiture herein is inconsistent with the policy and purpose of
the Commission's enforcement program, namely, to maintain
airspace safety. Crown asserts that Commission enforcement
ensures airspace safety, and that where six months has expired
between discovery of a violation and imposition of a fine, the
fundamental purpose of enforcement is not met. Lastly, Crown
states that during the period between the antenna structure
inspection and issuance of the NAL, Crown painted the antenna
structure, including the cables, prior to receiving notice of the
violation from the Commission.
6. The forfeiture amount in this case was proposed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended (``Act''),6 Section 1.80 of the Rules,7 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 Crown'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.8
7. 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.
According to Crown's Antenna Structure Registration (``ASR'')
number 1035006 has specified lighting and painting requirements
that include painting the structure with alternating bands of
aviation orange and white. On August 13, 2002, an agent from the
Denver Office found that the antenna structure had black cabling
mounted on the antenna structure. The agent observed that the 19
unpainted cables masked the underlying orange and white paint and
precluded good visibility of the antenna structure.
8. Crown acknowledges that the registration for its
antenna structure number 1035006 requires the structure to meet
the painting and lighting specifications in Section 17.50 and FAA
Advisory Circular, AC 70/7460-1H. Further, Crown does not
dispute that the black cabling obscured the underlying structure,
thus obscuring its visibility. However, Crown argues that the
antenna structure painting requirements contained in AC 70/7460 -
1H do not apply to ``any appurtenances mounted thereon.''
Accordingly, Crown contends that the NAL erred in assessing a
forfeiture for its failure to paint the cables on its antenna
structure with alternating bands of orange and white paint.
9. Pursuant to Section 303(q) of the Act, the Commission
has authority to require the painting and/or illumination of
radio towers when in its judgment such towers constitute or there
is a reasonable possibility that they may constitute a menace to
air navigations.9 The Commission grandfathered antenna
structures such as the structure at issue in the Report and Order
and stated that it would not require tower owners to update
painting and lighting requirements in accordance with new
Advisory Circulars. The Commission stated that such a
requirement would place significant burdens on owners.10 We do
not agree, however, with Crown's assertion that because its tower
was grandfathered and the painting and lighting requirements
contained in FAA Advisory Circular AC 70/7460 - 1 H do not
specifically require that the cables mounted on the antenna
structure must be painted that Crown was grandfathered and not
obligated to paint such cables. The Commission noted in reaching
this decision to grandfather existing structures that the FAA's
Advisory Circulars contain specific chapters and diagrams
describing in detail the FAA painting and lighting
10. The Commission did not, however, change the fundamental
requirement contained in Section 17.50 that a structure must be
cleaned and painted to maintain good visibility. Further, in the
Report and Order the Commission, in discussing who had primary
responsibility for maintaining proscribed structure painting
and/or lighting in accordance with Part 17, stated that one of
the Commission's primary responsibilities is to ensure that
antenna structures do not pose a threat to air safety. Crown's
contention, arguendo, is that, as a result of the Commission's
grandfathering existing antenna structures, an owner could
completely cover the tower face with coaxial cable without
painting it. This argument flies in the face of the plain
meaning of Section 17.50, which is to maintain good visibility.
Thus, consistent with Section 17.2(a) of the Rules, it is
apparent that any cables appurtenant to the tower, must also be
painted in a manner which ensures the visibility of the
underlying tower.12 In sum, the agent's direct observations
establish that the unpainted cables precluded good visibility of
the antenna structure 13 thereby resulting in a violation of
11. Additionally, Crown asserts that it should not be
assessed a forfeiture because the NAL was not released within six
months of the violation. This argument is without merit.
Section 503(b) of the Act14 authorizes the Commission to impose
forfeitures for violations and Section 1.80(c)(3) of the
Commission Rules15 authorizes imposition of a forfeiture if the
violation occurred within one year of the issuance of notice. In
the instant case, the violation was first observed on August 13,
2002 and the NAL was issued on February 28, 2003. Crown argues
that the delay in issuance of the NAL diminishes the gravity of
the public safety violation. Contrary to Crown's argument, the
Commission has consistently stressed that it expects full
compliance with the antenna structure rules because of the
potential danger to air navigation.16 The lapse of time from
inspection to issuance of the NAL does not undermine the gravity
of Crown's violation.
12. After reviewing the record in this case, including the
agent's contemporaneous observations of Crown's structure, we
conclude that the above cited evidence supports a finding that
the cables attached to Crown's tower obstructed good visibility
of the tower in violation of Section 17.50 of the Rules. The
violation was willful and repeated because Crown Communication,
Inc. permitted the use of unpainted cables as attachments to its
tower for an extended period which obscured the underlying paint.
Accordingly, we find that Crown Communication, Inc. willfully17
and repeatedly18 violated Section 17.50 of the Rules.
13. Lastly, Crown sets forth the fact that it had painted
the tower, including the cables, prior to a notification of
violation from the Commission as a basis to substantially reduce
the forfeiture. Considering the good faith effort of Crown in
painting the tower and the cables prior to being notified of the
violation, we agree that the forfeiture amount should be reduced.
Accordingly, we reduce the $10,000 forfeiture proposed in the NAL
14. We have examined Crown'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 Crown Communication, Inc. failed to maintain good visibility
of the antenna structure in willful and repeated violation of
Section 17.50 of the Rules. We also acknowledge Crown's good
faith efforts to address the violation. Thus, we reduce the
forfeiture to $8,000.
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,19 Crown Communication, 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 and repeated 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 Rules20 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.21
Payment may be made by credit card through the Commission's
Credit and Debt Management Center at (202) 418-1995 or 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 must include the FCC Registration Number
(FRN) and the NAL/Acct. No. referenced in the caption. Payment
by overnight mail may be sent to BankOne/LB73482, 525 West
Monroe, 8th Floor Mailroom, Chicago, Illinois 60661. Payment by
wire transfer may be made to ABA Number 071000013, receiving bank
Bank One, and account number 1165259. The payment must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption. Requests for full payment under an
installment plan should be sent to: Chief, Credit and Debt
Management Center, 445 12th Street, S.W., Washington, D.C.
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 Crown Castle USA, Inc. 2000 Corporate Drive,
Canonsburg, PA 15317 and its Counsel, Monica Gambino, Associate
General Counsel, Regulatory Affairs, 2000 Corporate Drive,
Canonsburg, PA 15317
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. § 17.50.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332800010 (Enf. Bur., Denver Office, released February 28,
3 See Streamlining the Commission's Antenna Structure Clearance
Procedure and Revision of Part 17 of the Commission's Rules
Concerning Construction, Marking and Lighting of Antenna
Structures, 11 FCC Rcd 4272, 4293 (1995).
4 Id at 4293, ¶ 49.
5 FAA Advisory Circular, 70/7460-1J.
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 303(q).
10 In the Matter of Streamlining the Commission's Antenna
Structure Clearance Procedure, 11 FCC Rcd 4272, 4292-6 (1995).
11 Id. at 4293.
12 47 C.F.R. § 17.2(a).
13 Failure to maintain good visibility is deemed a serious
violation warranting a forfeiture assessment. See Access.1
Communications Corp.-NY, 18 FCC Rcd 22289 (Enf. Bur. 2003); Gold
Coast Broadcasting Company, 18 FCC Rcd 8576 (Enf. Bur. 2003); and
Pinnacle Towers, Inc. 18 FCC Rcd 6419 (Enf. Bur. 2003).
14 47 U.S.C. § 503.
15 47 C.F.R. § 1.80(c)(3).
16 See SpectraSite Communications, Inc., 17 FCC Rcd 7884, 7888
(2002) (``...[t]he Commission considers violations of the antenna
construction, marking, and lighting rules to be serious safety-
17 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).
18 As provided by 47 U.S.C. § 312(f)(2), a continuous violation
is ``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982); see also Western Wireless Corporation, 18 FCC Rcd 10319,
10326 n. 56 (2003); Southern California Broadcasting Company, 6
FCC Rcd 4387, 4388 (1991).
19 47 C.F.R. §§ 0.111, 0.311, 0.180(f)(4).
2047 C.F.R. §1.80.
2147 U.S.C. § 504(a).
2247 U.S.C. § 1.1914.