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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-DL-
Marshall D. Martin ) 696
Owner of Antenna Supporting )
Structure 1220001 located in ) NAL/Acct. No.200332500003
Nacogdoches, Texas )
Etoile, Texas FRN 0003-7544-54
Adopted: October 25, 2004 Released:
October 27, 2004
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand five hundred
dollars ($2,500) to Marshall D. Martin, owner of antenna
structure number 1220001, for willfully violating Section 17.50
of the Commission's Rules (``Rules'').1 The noted violation
involves Mr. Martin's failure to clean or repaint the antenna
structure as often as necessary to maintain good visibility.
2. On February 19, 2003, the Commission's Dallas, Texas,
Field Office (``Dallas Office'') issued a $10,000 Notice of
Apparent Liability for Forfeiture (``NAL'') to Mr. Martin for the
noted violation.2 On March, 21, 2003, Mr. Martin filed a
response to the NAL.3
3. On October 23, 2002, an agent from the Dallas Office
inspected antenna structure number 1220001 located in
Nacogdoches, Texas. At the time of the inspection the agent
observed that the paint on the antenna structure was badly faded
and was peeling, significantly reducing visibility of the
structure to the extent that, during daylight hours, the bands
could not be readily distinguished at approximately one fourth of
a mile. Additionally, black cabling on the outside of the
structure covered the painted metal tower further reducing
visibility of the structure. On October 28, 2002, the agent
interviewed Mr. Martin, who stated he was aware that the tower
was in need of painting and had been in contact with tower
4. The Dallas Office issued the above-referenced NAL on
February 19, 2003, finding that Mr. Martin had apparently
willfully violated Section 17.50 of the Rules. In his response
to the NAL, Mr. Martin requests cancellation of the proposed
monetary forfeiture. Mr. Martin asserts that he did not
willfully violate Section 17.50 of the Rules; that he contacted
tower painters ``in an effort to enhance the tower's appearance
so as to attract additional lessees'' and not because he believed
the tower to be in violation of the rules; that he personally
believed the tower ``to have good visibility''; and that he
believed the tower had passed an FCC ``paint inspection'' prior
to its registration. Additionally, Mr. Martin avers that he was
preparing to paint the tower but persistent bad weather delayed
the painting. Finally, Mr. Martin asserts that he has no history
of violations and submits copies of his 1999, 2000 and 2001
federal income tax returns to establish his inability to pay the
proposed monetary forfeiture.
5. In a telephone conversation with Bureau counsel on June
29, 2004, Mr. Martin stated that antenna structure number 1220001
was painted during April 2003.
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''),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, (``Policy Statement'').6 Section 503(b) of the Act
requires that the Commission, in examining Mr. Martin's response,
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
other such matters as justice may require.7
7. Section 17.50 of the Rules provides that antenna
structures requiring painting shall be cleaned or repainted as
often as necessary to maintain good visibility. Mr. Martin
states that he personally believed the tower ``to have good
visibility'' and that he believed that his tower's paint had
passed an FCC inspection prior to the tower's registration.8 The
Commission does not routinely perform pre-registration paint
inspections and did not do so in this case. Nothing in Mr.
Martin's response to the NAL warrants overturning the agent's
determination that the tower's painted bands could not be readily
distinguished at approximately one fourth of a mile.9 We,
therefore, find that Mr. Martin violated Section 17.50 of the
8. When the FCC agent interviewed Mr. Martin, he stated
that he knew the tower needed painting and he had been in contact
with tower painters. This admission establishes that the
violation was willful. Mr. Martin's explanation that he
contacted the tower painters ``in an effort to enhance the
tower's appearance so as to attract additional lessees'' - not
because he believed the tower was in violation - does not negate
the willfulness of Mr. Martin's violation of Section 17.50.
Section 312(f)(1) of the Act, 47 USC § 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 ...."10 Thus, even though Mr. Martin may not have intended
to violate Section 17.50 of the Rules, he acted willfully by
knowing the condition of the tower's paint and failing to have
the tower painted.11 We, therefore, find that Mr. Martin's
violation of Section 17.50 was willful.
9. Mr. Martin asserts that he made preparations to paint
antenna structure number 1220001, but unfavorable weather delayed
the painting. Mr. Martin has not provided sufficient details to
warrant consideration of this claim. For example, it is unclear
whether Mr. Martin executed a painting contract after being
notified of the violation or exactly when Mr. Martin made the
preparations for painting. In addition Mr. Martin has not
provided a detailed description of the unfavorable weather
conditions which delayed the painting and the dates on which
those conditions occurred.
10. We find that Mr. Martin has a history of overall
compliance and, accordingly, reduce the forfeiture amount to
$8,000. Additionally, in support of his financial hardship
claim, Mr. Martin submits copies of his 1999, 2000 and 2001
federal income tax returns. The Commission has determined that,
in general, a licensee's gross revenues are the best indicator of
its ability to pay a forfeiture.12 After reviewing the financial
data submitted, we find that the proposed monetary forfeiture
amount should be further reduced to $2,500. 13
11. We have examined Mr. Martin'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 Mr. Martin willfully violated Section 17.50 of the
Rules, and we find that, although cancellation of the proposed
monetary forfeiture is not warranted, reduction of the forfeiture
amount to $2,500 is appropriate.
IV. ORDERING CLAUSES
12. 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 Mr. Martin IS LIABLE FOR A MONETARY FORFEITURE in
the amount of $2,500 for willfully violating Section 17.50 of the
13. 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 of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Acct. No. and FRN
No. referenced above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.16
14. IT IS FURTHER ORDERED that a copy of this Order shall
by sent by first class and certified mail, return receipt
requested, to Marshall D. Martin, P.O. Box 532, Etoile, Texas
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Bureau Chief, Enforcement
1 47 C.F.R. § 17.50.
2Marshall D. Martin, NAL/Acct. No. 200332500003 (Enf. Bur.,
Dallas Office, rel. February 19, 2003).
3 The NAL was issued to ``Martin D. Marshall.'' Mr. Martin's
correct name is Marshall D. Martin. Accordingly, we re-caption
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
47 U.S.C. § 503(b)(2)(D).
8 According to Commission records, antenna structure 1220001 was
registered on January 16, 2002.
9 In cases where there has been a conflict between an FCC agent's
opinion that the visibility of an antenna structure is
insufficient to meet the requirements of Section 17.50 and a
tower owner's opinion that the structure is sufficiently visible
to meet those requirements, we have relied on the inspecting
agent's observations to determine the tower's compliance with the
Rules. See, e.g., Access.1 Communications Corp.-NY, 18 FCC Rcd
22289, 22291 at fn 8 (Enf. Bur. 2003).
10 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991); see also Nan Tan Computer Co., 9 FCC Rcd 3092 (1994).
See , e.g., Access.1 Communications Corp.-NY, supra.
12 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089
13Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 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); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues).
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.