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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 )
MEMORANDUM OPINION AND ORDER
Adopted: January 24, 2005 Released: January 26,
By the Chief, Enforcement Bureau:
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.
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.
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
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
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.
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,
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.
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.