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


In the Matter of                 )
                                )
Barinowski Investment Company,   )    File No. EB-02-AT-322
L.P.                             )    NAL/Acct. No. 200232480030
Owner of Antenna Structure #     )    FRN 0006-1664-09
1062662 near                     )
Savannah, Georgia
Grovetown, Georgia

                  MEMORANDUM OPINION AND ORDER

   Adopted:  January 24, 2005           Released:  January 26, 
2005

By the Chief, Enforcement Bureau:

  I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order (``Order''), we 
grant in part and deny in part the December 23, 2003 petition for 
reconsideration filed by Barinowski Investment Company, L.P. 
(``Barinowski''), owner of an antenna structure, antenna 
structure registration (``ASR'') number 1062662, near Savannah, 
Georgia.  Barinowski seeks reconsideration of a December 3, 2003 
Forfeiture Order,1 in which the Enforcement Bureau (``Bureau'') 
imposed a monetary forfeiture in the amount of eight thousand 
dollars ($8,000) for willful violation of Section 17.50 of the 
Commission's Rules (``Rules'').2  In this Order, based on 
Barinowski's history of overall compliance, we reduce the 
forfeiture amount to six thousand, four hundred dollars ($6,400).  
The noted violation involved Barinowski's failure to clean and 
repaint its antenna structure to maintain good visibility.  

II.  BACKGROUND

     2.   On August 28, 2002, a Commission agent from the 
Atlanta, Georgia District Office  (``Atlanta Office'') inspected 
Barinowski's antenna structure located near Savannah, Georgia.  
At the time of the inspection, black cabling on the outside of 
all three sides of the structure covered the painted metal tower, 
significantly reducing the visibility of the structure.  On 
September 12, 2002, during a telephone interview with an agent 
from the Atlanta Office, a Barinowski representative stated that 
Barinowski owned ASR number 1062662, that it was aware that the 
cables adversely affected the visibility of the antenna 
structure, and that it had contracted to have the tower repainted 
as soon as an additional tenant was added to the structure.  On 
September 30, 2002, the District Director of the Atlanta Office 
issued a Notice of Apparent Liability for Forfeiture (``NAL'') 
for $10,000 to Barinowski for apparent willful violation of 
Section 17.50 of the Rules.3  The NAL specifically noted that 
Barinowski failed to repaint the antenna structure in accordance 
with the painting specifications associated with it.  

     3.   On October 7, 2002, Barinowski submitted a response to 
the NAL in which it requested cancellation of the forfeiture.  In 
support of its request, Barinowski stated that it had been 
advised by its consultant, prior to any contact with the 
Commission agent, to paint the antenna structure as a preventive 
measure.  Further, Barinowski stated that it had already arranged 
for the tower to be painted and had prepaid the contractor on May 
31, 2002 to expedite the painting.4  Finally, Barinowski stated 
that it believed that the antenna structure was not in violation 
and that the painting, which occurred on October 4, 2002, 
prevented a future violation.    

   4.   On December 3, 2003, the Bureau issued a Forfeiture 
     Order to Barinowski in which it imposed an $8,000 
     forfeiture for failure to clean and repaint its antenna 
     structure to maintain good visibility.  The Forfeiture 
     Order found that consistent with FAA Advisory Circular AC 
     70/7460-1J5 and pursuant to Section 17.23 of the Rules,6 
     the cables attached to Barinowski's antenna structure were 
     required to be painted but they were not, thus, reducing 
     the visibility of the antenna structure.  However, finding 
     that Barinowski had made good faith efforts to comply with 
     Section 17.50 of the Rules prior to being informed of the 
     violation, the Forfeiture Order reduced the forfeiture 
     amount from $10,000 to $8,000.7

   5.  On December 23, 2003, Barinowski filed a petition for 
     reconsideration of the Forfeiture Order in which it 
     requested rescission of the forfeiture.  In support of its 
     request, Barinowski makes several arguments.  First, 
     Barinowski restates the same argument that it made in its 
     response to the NAL.  Basically, Barinowski reiterates that 
     it had been informed by its consultant, prior to the 
     inspection, that its tower should be painted as a 
     preventive measure and that it had already contracted to 
     have the tower repainted.  Further, Barinowski explains 
     that the repainting was scheduled to take place as soon as 
     an additional tenant, which had signed a contract to 
     immediately become a tenant on the tower, was actually 
     added to the structure.  Barinowski adds that this approach 
     was taken in order to avoid painting the tower, having the 
     tenant immediately thereafter added to the structure, and 
     then having to repaint the tower a second time.  Barinowski 
     asserts that this approach was reasonable and in keeping 
     with standards of practice in the tower business.  Next, 
     Barinowski argues that in assessing the forfeiture, the 
     Commission failed to follow the requirements of its own 
     rules and regulations.  Finally, Barinowski claims that the 
     Bureau failed to consider the Section 503(b) factors in 
     determining the forfeiture amount.

III. DISCUSSION

   6.  The forfeiture amount in this case was assessed in 
     accordance with Section 503(b) of the Communications Act of 
     1934 as amended (``Act''),8 Section 1.80 of the Rules,9 and 
     The Commission's Forfeiture Policy Statement and Amendment 
     of Section 1.80 of the Rules to Incorporate the Forfeiture 
     Guidelines.10  In examining Barinowski's petition, 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 any other such matters as justice may require.11  

   7.  Barinowski contracted on May 31, 2002, prior to the 
     inspection, to have its tower painted.  Because Barinowski 
     made a business decision to wait until a new tenant moved 
     onto the tower, its tower was not painted until October 4, 
     2002.  As we stated in the Forfeiture Order, although we do 
     not believe  that waiting four months to remedy such a 
     serious safety hazard is an exercise of good faith 
     sufficient to justify canceling the forfeiture, we do 
     believe that identifying the need to repaint the tower, and 
     prepaying for the future painting of the tower prior to any 
     notice of inspection or issuance of the NAL merits a 
     reduction of the proposed forfeiture.12  Consequently, we 
     reduced the forfeiture from $10,000 to $8,000.  We have 
     already considered the good faith exhibited by Barinowski 
     and reduced the forfeiture amount accordingly.  Barinowski 
     has not presented any new information regarding the 
     circumstances of the painting of its tower which would 
     cause us to change our position.

   8.  Next, Barinowski argues that in assessing the forfeiture, 
     the Commission failed to follow the requirements of its 
     rules and regulations.  Barinowski cites to Section 1.80(d) 
     of the Commission's Rules13 and asserts that no forfeiture 
     penalty should have been imposed against it without it 
     first being issued a citation reciting the violation 
     charged, being given an opportunity to request a personal 
     interview to discuss any concerns regarding the tower, and 
     subsequently engaging in the same conduct of the type 
     described in the citation, because it is not an applicant 
     for, nor does it hold any license, permit, certificate, or 
     other authorization issued by the Commission in connection 
     with any service regulated by the Commission on its tower.  
     We do not believe that the provisions of Section 1.80(d) of 
     the Rules apply to Barinowski.  Although Barinowski may not 
     hold any Commission authorization with regard to the 
     subject antenna structure, Barinowski is a Commission 
     licensee, holding Commission authorizations for several 
     broadcast facilities.14  As such, Section 1.80(d) does not 
     apply to Barinowski.  Moreover, even if Barinowski were not 
     a Commission licensee, the notice provisions of Section 
     1.80(d) still would not apply to Barinowski because Section 
     1.80(d) permits the imposition of a forfeiture penalty in 
     the case of a non-licensee tower owner charged with 
     violating Part 17 of the Rules.15  

   9.  Finally, Barinowski claims that the Bureau failed to 
     consider the Section 503(b) factors in determining the 
     forfeiture amount.  Section 503(b) of the Communications 
     Act of 1934, as amended,16 requires that, when determining 
     a forfeiture penalty, the Bureau take into account the 
     nature, circumstances, extent and gravity of the violations 
     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.  Barinowski 
     claims to have a history of overall compliance with the 
     Commissions rules.  Barinowski further asserts that, based 
     on such an exemplary and meritorious history of overall 
     compliance with the Commission's tower registration and 
     painting rules and policies, forfeitures have not been 
     imposed pursuant to Section 17.50 of the Rules against the 
     first violation of a tower owner.17  In support of this 
     proposition, Barinowski cites to Nextmedia Operating, 
     Inc.18  Barinowski further claims that forfeitures have not 
     been assessed under similar facts and circumstances where 
     the issue was whether an otherwise properly painted tower 
     was only partially obstructed by unpainted cables, and 
     where the tower owner promptly corrected the problem.19  In 
     support, Barinowski cites to Pinnacle Towers, Inc.20 and 
     Midwest Tower Partners, LLC.21  Barinowski concludes that 
     its case for rescission is even stronger than the cases 
     that it has cited because it contracted for its antenna 
     structure to be painted before it became aware of the 
     Commission's concerns.    

   10. The Bureau considered the factors enumerated in Section 
     503(b) and, because of Barinowski's good faith efforts, 
     reduced the forfeiture amount.  Moreover, we believe that 
     Barinowski has misinterpreted our decisions in the 
     Nextmedia, Pinnacle, and Midwest cases.  In Nextmedia, the 
     Commission's Buffalo, New York Office had issued a NAL to 
     Nextmedia for its violation of Sections 17.47(a)(1). 
     17.48(a), and 17.51(a) of the Rules.22  The violations 
     involved Nextmedia's failure to make an observation of its 
     antenna structure's lights at least once each 24 hours, 
     failure to notify the Federal Aviation Administration that 
     the obstruction lighting was improperly functioning, and 
     failure to exhibit obstruction lighting from sunrise to 
     sunset.  The Bureau cancelled the forfeiture because we 
     specifically found that Nextmedia did not willfully violate 
     Section 17.47(a)(1) or 17.48(a) of the Rules and because of 
     Nextmedia's good faith efforts to comply with the lighting 
     requirements of Section 17.51(a) of the Rules, as well as 
     its history of overall compliance.  We did not cancel the 
     forfeiture in Nextmedia because, as Barinowski asserts, 
     ``forfeitures have not been imposed pursuant to Section 
     17.50 of the Rules against a first violation by a tower 
     owner.''  

   11. In the remaining cases, Pinnacle and Midwest, our 
     cancellations of the forfeitures were based upon our 
     specific conclusions that the evidence did not support a 
     finding that the attached cables obstructed good visibility 
     of the subject towers, not because the towers were only 
     partially obstructed by unpainted cables and the tower 
     owners had promptly corrected the problem.  We have made no 
     such finding regarding the good visibility of Barinowski's 
     antenna structure, and find no factual basis to make such a 
     finding.  To the contrary, in the Forfeiture Order, we 
     specifically found that the condition of Barinowski's tower 
     violated Section 17.50 of the Rules.  Additionally, 
     Barinowski's consultant had recommended painting the tower 
     prior to our inspection, yet the tower remained unpainted.  
     Finally, Barinowski has not presented any evidence that 
     would make us change our finding below.  While we granted 
     Barinowski a reduction based upon good faith, we did not 
     cancel the forfeiture because we believed then and continue 
     to believe that waiting more than four months after 
     recognizing that it's tower's visibility was impaired by 
     the unpainted cables to remedy such a serious safety hazard 
     precludes cancellation of the forfeiture.  Moreover, 
     contrary to Barinowski's assertion, the Bureau has imposed 
     forfeitures against tower owners for violations of Section 
     17.50 of the Rules who have histories of overall 
     compliance.23  However, we do find that Barinowski has a 
     history of overall compliance with the Commission's Rules 
     that justifies a further reduction of the forfeiture amount 
     to $6,400, but not cancellation.            

  IV.  ORDERING CLAUSES

   12. Accordingly, IT IS ORDERED that, pursuant to Section 405 
     of the Communications Act of 1934, as amended24 and Section 
     1.106 of the Rules,25 the petition for reconsideration 
     filed by Barinowski Investment Company, L.P. on December 
     23, 2003 IS GRANTED TO THE EXTENT INDICATED HEREIN.

   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.26  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. 20554.27

   14. IT IS FURTHER ORDERED THAT this Order shall be sent by 
     first class mail and certified mail, return receipt 
     requested, to Barinowski Investment Company, LP, 2278 
     Wortham Lane, Grovetown, Georgia 30813 and to its counsel, 
     Jeffrey D. Southmayd, Esq., 1220 19th Street, NW, 
     Washington, DC  20036.                       

                       FEDERAL COMMUNICATIONS COMMISSION

                         


                           David H. Solomon
                           Chief, Enforcement Bureau


_________________________

1 Barinowski Investment Company, L.P., 18 FCC Rcd 25067 (Enf. 
Bur. 2003).
2 47 C.F.R.  17.50.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200232480030 (Enf. Bur., Atlanta Office, released September 30, 
2002).
4 Barinowski included a copy of an invoice for painting of the 
antenna structure, which was dated May 31, 2002.  
5 FAA Advisory Circular AC 70/7460-1J, Obstruction Marking and 
Lighting, Chapter 3, Marking Guidelines, Paragraph 33(c)(1)(g).
6 47 C.F.R.  17.23.
7 See Access.1 Communications Corp. - NY, 18 FCC Rcd 3412 (Enf. 
Bur. 2003) (good faith reduction given where tower owner 
identified the need to repaint the tower, scheduled the tower for 
repainting, and repainted the tower prior to any notice of 
inspections or issuance of the NAL). 
8 47 U.S.C.  503(b).
9 47 C.F.R.  1.80.
10 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
11 47 U.S.C.  503(b)(2)(D).
12 18 FCC Rcd at 25069.
13 47C.F.R.  1.80(d).
14 Commission records indicate that Barinowski Investment Company 
is the licensee of the following broadcast stations: WBLR(AM), 
Batesburg, South Carolina; WKTM(FM), Soperton, Georgia; WLGP(FM), 
Harkers Island, South Carolina; WLPF(FM), Ocilla, Georgia; 
WQRX(AM), Valley Head, Alabama; WWGF(FM), Donalsonville, Georgia; 
WZIQ(FM), Smithville, Georgia; WZQZ(AM), Trion, Georgia.
15 See 47 C.F.R.  1.80(d).  See also 47 U.S.C.  503(b)(5); 47 
U.S.C.  303(q); Pinnacle Towers, Inc., 18 FCC Rcd 16365 (Enf. 
Bur. 2003) (forfeiture imposed against non-licensee tower owner 
for violating Section 17.50 of the Rules). 
16 47 U.S.C.  503(b).
17 See Petition for Reconsideration at page 5.
18 18 FCC Rcd 21023 (Enf. Bur 2003).
19 See Petition for Reconsideration at page 6.
20 18 FCC Rcd 6419 (Enf. Bur. 2003).
21 18 FCC Rcd 12921 (Enf. Bur. 2003). 
22 47 C.F.R.  17.47(a)(1), 17.48(a) and 17.51(a).
23 See Fun Media Group, Inc., 19 FCC Rcd 10230 (Enf. Bur.  2004); 
Tower Properties of Florida,  Inc., 18 FCC  Rcd 26094 (Enf.  Bur. 
2003). 
24 47 U.S.C.  405.
25 47 C.F.R.  1.106.
26 47 U.S.C.  504(a).
27 See 47 C.F.R.  1.1914.