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

In the Matter of                 )    EB-02-PO-136
Sutro Corporation                )    NAL/Acct. No. 200232920001
Payette, Idaho                   )
                                )    FRN 0007562150


Adopted:  August 2, 2004                Released:  August  5, 

By the Commission:


     1.   In this Memorandum  Opinion and  Order (``Order''),  we 
deny the November 12, 2003 Application for Review filed by  Sutro 
Corporation c/o John  H. Runkle (``Sutro''),  of the October  14, 
2003  Forfeiture  Order1   issued  by   the  Enforcement   Bureau 
(``Bureau'').  In that Forfeiture  Order, the Bureau found  Sutro 
liable for a monetary  forfeiture in the  amount of two  thousand 
four hundred dollars ($2,400)  for repeated violation of  Section 
17.4(a) of  the Commission's  Rules (``Rules'')2  for failing  to 
register its antenna structure located in Payette, Idaho.  


     2.   On July 31,  2002, the  Commission's Portland,  Oregon, 
Resident Agent Office  (``Portland Office'') issued  a Notice  of 
Apparent Liability  for Forfeiture  (``NAL'')  in the  amount  of 
three thousand dollars ($3,000) to Sutro for the above-referenced 
violation.3   Specifically,  the   Portland  Office  found   that 
contrary to rules  adopted by  the Commission  in 1995  regarding 
tower registration,4 and a subsequent Public Notice regarding the 
same,5 on May  23, 2002  and July 30,  2002, the  405 foot  tower 
owned by Sutro  and located at  44º 03' 44''  North Latitude  and 
116º 54' 22'' West Longitude in Payette, Idaho was not registered 
with the Commission in apparent willful and repeated violation of 
Section 17.4(a).6

     3.   In its response  to the  NAL, Sutro  admitted that  the 
Payette tower was unregistered until August 27, 2002.7  By way of 
explanation, Sutro  averred  that  it made  several  attempts  to 
register the  Payette tower  by filing  a ``FCC  Application  for 
Antenna Structure Registration'' (``ASR application'') 8 for  the 
Payette tower on June 26, 1998, January 28, 2000, August 8, 2002, 
and August 20, 2002.9  Sutro sought mitigation of the  forfeiture 
based on its good faith efforts to register the structure and its 
claim of  a  history  of overall  compliance.   Finally,  in  its 
Response, Sutro,  citing to  C.W.H. Broadcasting  10 requested  a 
forfeiture reduction from $2,400 to $500.11   

     4.   On October 14, 2003,  the Bureau released a  Forfeiture 
Order finding  Sutro  liable for  a  monetary forfeiture  in  the 
amount  of  $2,400  for  its  failure  to  register  its  antenna 
structure in repeated  violation of  the Section  17.4(a) of  the 
Rules.12  In the Forfeiture Order, the Bureau noted that  Sutro's 
first ASR  application, was  untimely  filed because  the  filing 
window for ASR  applications for existing  antenna structures  in 
Idaho closed on February  28, 1998.13  The  Bureau noted that  on 
August 3, 1998, the Commission staff dismissed Sutro's first  ASR 
application without prejudice, because Sutro provided coordinates 
that  did  not  match  those  submitted  by  a  Federal  Aviation 
Administration (``FAA'') clearance study for the Payette tower.14  
In the  Dismissal  Letter,  Sutro was  instructed  to  check  the 
accuracy of its  tower coordinates and  submit to the  FAA a  new 
Form 7460-1 in order to obtain  a new clearance with the  correct 
coordinates,  and  to  file  with   the  Commission  a  new   ASR 
application within 90 days (by November 1, 1998).15  Sutro  filed 
a revised FAA form almost three months after the 90 day period,16 
and its second ASR application nearly fifteen months after the 90 
day period.

     5.   The Bureau Forfeiture Order states that Sutro's  second 
ASR application was returned without prejudice by the  Commission 
staff on  February  8,  2000,  because it  was  submitted  on  an 
outdated form.17   The Bureau  noted that  the FAA  issued a  new 
clearance concerning the  Payette tower on  February 28,  2000.18  
The Bureau also noted that Sutro filed its third ASR  application 
two and  a half  years  after the  dismissal  of its  second  ASR 
application, and almost two months after Sutro was advised of the 
violation by the Portland Office.19  

     6.   In examining Sutro's request for mitigation, the Bureau 
found Sutro's explanation to  be ``completely inadequate  because 
of the extreme length of the delay in registering the tower,  and 
because, as explained  in the  August 3,  1998 Dismissal  Letter, 
Sutro did not need to wait for a new FAA clearance before  filing 
its registration  application.''20   The Bureau  found  that  the 
lengthy filing  delays concerning  Sutro's second  and third  ASR 
applications evidenced a lack of diligence and that its  attempts 
to register  its  tower did  not  mitigate the  violation.21   In 
addition,  the   Bureau   determined  that   Sutro's   subsequent 
correction  of  the  tower  violation  after  being  notified  by 
Commission staff did not warrant mitigation, citing Seawest Yacht 
Brokers for  the proposition  that ``corrective  action taken  to 
come in compliance with Commission  rules or policy is  expected, 
and does  not  nullify  or  mitigate  any  prior  forfeitures  or 

     7.   The Bureau distinguished  C.W.H. Broadcasting,  finding 
it to be inapposite as the reduction of the forfeiture to $500 in 
that case ``was primarily based  on financial hardship, which  is 
not present in this case.''23  Finally, the Bureau did reduce the 
forfeiture amount from $3,000 to $2,400 based on Sutro's  history 
of overall compliance.24 

     8.   In its  Application for  Review, Sutro  reiterates  the 
arguments previously rejected by  the Bureau's Forfeiture  Order.  
Sutro also again argues for a  forfeiture amount of no more  than 
$500 (reduced  from $2,400),  reiterating an  alleged good  faith 
effort to register the subject tower, and again citing to  C.W.H. 
Broadcasting, where  a forfeiture  amount  was reduced  to  $500.  
Sutro maintains that  although the  Bureau's C.W.H.  Broadcasting 
Forfeiture Order  reduced  the  $20,000  proposed  forfeiture  to 
$3,500 based on an inability to pay,25 there was no indication in 
C.W.H. Broadcasting, in which the  Bureau granted in part  C.W.H. 
Broadcasting's  Petition  for  Reconsideration26  of  the  C.W.H. 
Broadcasting Forfeiture Order,  that the  forfeiture was  further 
reduced from $3,500 to $500 based on an inability to pay.27


     9.   The forfeiture  amount in  this  case was  assessed  in 
accordance with Section 503(b) of the Communications Act of  1934 
as amended (``Act''),  28 Section  1.80 of the  Rules,29 and  The 
Commission's Forfeiture Policy Statement and Amendment of Section 
1.80 of the Rules to Incorporate the Forfeiture Guidelines.30  In 
examining Sutro's Application for  Review, Section 503(b) of  the 
Act requires that we 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  any such other matters as  justice 
may require.31  

     10.    Sutro argues, as it did in response to the NAL,  that 
its unsuccessful attempts to register the antenna tower should be 
viewed as good faith efforts, and seeks cancellation or a further 
reduction of the forfeiture assessed by the Bureau on that basis.  
In forfeiture proceedings, we have generally provided  reductions 
based on the  good faith  corrective efforts of  a violator  when 
those  corrective  efforts   were  taken   prior  to   Commission 
notification of the violation.32  However,  in view of the  facts 
before us, we agree  with the Bureau's  ruling that the  periodic 
unsuccessful attempts  to  register  the  Payette  tower  do  not 
mitigate the  assessed forfeiture  for its  violation of  Section 
17.4(a) of the Rules.  Consistent  with the Bureau's finding,  we 
find that the lengthy delays in Sutro's filing of its second  and 
third ASR applications evince a  lack of diligence such that  the 
periodic unsuccessful attempts to register the tower do not  rise 
to the level of good faith  efforts to comply that would  entitle 
Sutro to further mitigation of the assessed forfeiture amount.  

     11.   Further, we reiterate that the C.W.H. Broadcasting and 
Sutro cases may be  distinguished on the  basis that each  entity 
seeks a downward adjustment based on different criteria:   C.W.H. 
Broadcasting successfully based its claim on an inability to pay, 
while  Sutro  unsuccessfully  bases  its  claim  on  an  entirely 
different issue¾a  good  faith effort  to  adhere to  the  Rules.  
Moreover, C.W.H.  Broadcasting submitted  sufficient evidence  in 
its response to the NAL33 to  establish an inability to pay,  and 
submitted amplified evidence in its Petition for  Reconsideration 
regarding its financial condition sufficient to warrant a further 
reduction  in  the  forfeiture  amount  based  on  its  financial 
hardship to C.W.H. Broadcasting.  Sutro,  on the other hand,  was 
initially unsuccessful in  establishing a good  faith attempt  to 
adhere to the Rules, and, in its Application for Review,  offered 
no additional  evidence  of  good faith  which  would  warrant  a 
further reduction  of  the forfeiture  amount.   Accordingly,  we 
affirm the Bureau's  finding that the  factors present in  C.W.H. 
Broadcasting are  not  present  here, and  conclude  that  C.W.H. 
Broadcasting  does  not  support  a  further  reduction  in   the 
forfeiture amount. 

     12.  We have examined Sutro's Application for Review and are 
not persuaded to reduce  the forfeiture amount.  Accordingly,  we 
affirm the Bureau's  Forfeiture Order  finding Sutro  Corporation 
liable for a forfeiture amount of $2,400. 


     13.  Accordingly, IT IS ORDERED  that, pursuant to  1.115(a) 
and 1.115(g) of  the Rules,34 the  Sutro Corporation  Application 
for Review of the Enforcement Bureau Forfeiture Order for NAL No. 
200232920001 IS DENIED.

     Payment of the $2,400 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.35  
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 the  NAL/Acct. 
No. referenced in the caption.   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. 

     14.  IT IS FURTHER ORDERED that  copies of this Order  shall 
be sent by Certified Mail  Return Receipt Requested and by  First 
Class Mail to Sutro  Corporation., c/o John  H. Runkle, P.O.  Box 
1826,  Boise,  Idaho  83701,  and  to  its  counsel,  Matthew  H. 
McCormick, Esq., Reddy, Begley &  McCormick, LLP, 2175 K  Street, 
N.W., Suite 350, Washington, D.C. 20037-1845.


                         Marlene H. Dortch


1  Sutro  Corporation,  18  FCC   Rcd  20529  (Enf.  Bur.   2003) 
(``Forfeiture Order'').
2 47 C.F.R. §  17.4(a) (required the  owners of existing  antenna 
structures that were assigned  painting or lighting  requirements 
before July  1, 1996,  to register  those antenna  structures  no 
later than July 1, 1998).
3 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200232920001 (Enf. Bur., Portland Office, released July 31, 2002) 
4  Streamlining  the  Commission's  Antenna  Structure  Clearance 
Procedures and  Revision of  Part 17  of the  Commission's  Rules 
Concerning  Construction,  Marking,   and  Lighting  of   Antenna 
Structures, 11 FCC Rcd 4272 (1995).
5 Public Notice, ``No-Tolerance  Policy Adopted for  Unregistered 
Antenna Structures,'' 1999  WL 10060 (WTB,  released January  13, 
6 On June 11, 2002, an Agent from the Portland Office advised Mr. 
Runkle that the tower must be registered, and a subsequent search 
on  July  30,  2002,   of  the  Commission's  antenna   structure 
registration   records   revealed   that   the   tower   remained 
7 Sutro Corporation, c/o  John H. Runkle,  Response to Notice  of 
Apparent  Liability  for   Forfeiture  at  3   (Aug.  30,   2002) 
8 See  FCC  Form 854,  ``FCC  Application for  Antenna  Structure 
9 Sutro successfully  registered its  tower when  its fourth  ASR 
application was granted  by the  Commission on  August 27,  2002.  
See Response at  and 3.
10 C.W.H. Broadcasting, Inc., 17  FCC Rcd 14324 (Enf. Bur.  2002) 
(forfeiture reduced from $3,500 to $500).
11 Response at 4.
12 The  Bureau  only  determined  that  Sutro's  violations  were 
repeated, it therefore,  did not deem  it necessary to  determine 
whether they were also  willful.  See Koke, Inc.,  23 FCC 2d  191 
(1970); see also, 47 U.S.C. § 503(b).
13 Forfeiture Order, 18 FCC Rcd at 20532 citing Streamlining  the 
Commission's Antenna Structure Clearance Procedure, 11 FCC Rcd at 
4302 (1995).  
14  See  Letter  from  Information  Processing  Branch,   Federal 
Communications Commission to John Runkle, Sutro Corporation  (Aug 
3, 1998) (``Dismissal Letter''); see also Response at 2.
15 Dismissal Letter at 1.
16 Sutro  filed  FAA  Form  7460-1 on  February  24,  1999.   See 
Response at 2.
17 See  Notice of  Immediate  Application Dismissal  letter  from 
Federal Communications Commission to  Sutro Corporation (Feb.  8, 
2000) (all manual ASR application submissions made after June 24, 
1999, must be made on FCC Form 854 (June 1999 edition)).
18 See Application for Review at 2.
19 Sutro  explained  that  it  expected to  file  its  third  ASR 
application after receiving a new FAA clearance but did not learn 
of the new  clearance until  it contacted the  FAA following  the 
issuance of the NAL.  See Response at 2.
20 Forfeiture Order, 18 FCC Rcd at 20531.
21 Id.
22 Forfeiture  Order, 18  FCC Rcd  at 20531citing  Seawest  Yacht 
Brokers, 9 FCC Rcd 6099, 6099 (1994).
23 Forfeiture Order, 18 FCC Rcd at 20531.
24 Id. at 18 FCC Rcd at 20532.
25 See C.W.H.  Broadcasting, Inc.,  17 FCC Rcd  4548, 4549  (Enf. 
Bur. 2002)  (``C.W.H. Broadcasting  Forfeiture Order'')  ($20,000 
proposed forfeiture reduced to $3,500 based on inability to pay).
26 Letter from Charles W. Holt, owner, C.W.H. Broadcasting, Inc., 
to David H.  Solomon, Chief, Enforcement  Bureau (dated Mar.  11, 
2002)(Petition for Reconsideration).
27 Application for Review at 4.
28 47 U.S.C. § 503(b).
29 47 C.F.R. § 1.80.
30 12  FCC Rcd.  17087 (1997),  recon. denied,  15 FCC  Rcd.  303 
31 47 U.S.C. § 503(b)(2)(D).
32 See  Note to  Section 1.80(b)(4)  of the  Rules, 47  C.F.R.  § 
1.80(b)(4). ``Section  II. Adjustment  Criteria for  Section  503 
Forfeitures,'' ``Downward Adjustment Criteria,'' ``Good faith  or 
voluntary disclosure''; see also Radio One Licenses, Inc., 18 FCC 
Rcd 15964,15965 (2003); recon. denied, 18 FCC Rcd 25481 (2003).
33 C.W.H. Broadcasting,  Inc., NAL/Acct.  No. 200232620001  (Enf. 
Bur., New Orleans, released Oct. 24, 2001).
34 47 C.F.R., §§ 1.115(a) and (g).
35 47 U.S.C. § 504(a).