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                           Before the
                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                )
                                )
                                )


                        FORFEITURE ORDER

   Adopted:  October 14, 2004           Released:  October 18, 
2004

By: The Assistant 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  Crown  Communication, Inc.  (``Crown''),  owner  of 
antenna  structure  number  1035006  located  at  103  05'  30'' 
longitude /  032 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 
structure.

     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.  

II.  BACKGROUND

     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. 

III.      DISCUSSION 

     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 
recommendations.11  

     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 
Section 17.50. 

     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 
to $8,000.      

     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. 
20554.22

     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, 
2003.
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-
related infractions'').                 
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.