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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Marshall D. Martin File No. EB-02-DL-696
Owner of Antenna Supporting Structure NAL/Acct. No. 200332500003
Nacogdoches, Texas )
MEMORANDUM OPINION AND ORDER
Adopted: January 25, 2007 Released: January 29, 2007
By the Assistant Chief, Enforcement Bureau:
1. By this Memorandum Opinion and Order ("MO&O"), we deny a Petition for
Reconsideration, filed on November 16, 2004, by Mr. Marshall D. Martin
("Mr. Martin"), owner of antenna structure number 1220001,
Nacogdoches, Texas. Mr. Martin seeks reconsideration of an October 27,
2004, Forfeiture Order in the amount of two thousand five hundred
dollars ($2,500), for willful violation of Section 17.50 of the
Commission's Rules ("Rules"). The noted violation concerns Mr.
Martin's failure to clean or repaint an antenna structure as often as
necessary to maintain good visibility. For the reasons discussed
below, we affirm the monetary forfeiture amount of $2,500.
2. On October 23, 2002, an agent from the Commission's Dallas, Texas
Field Office ("Dallas Office") inspected the referenced antenna
structure. At the time of the inspection the agent observed that the
paint on the antenna structure was badly faded and peeling,
significantly reducing visibility to the extent that during daylight,
the tower's orange and white bands could not be readily distinguished
at a distance of approximately one fourth of a mile. In addition,
black cabling on the exterior of the antenna structure covered the
painted metal tower, further reducing the visibility of the tower. On
October 28, 2002, the agent interviewed Mr. Martin, who stated that he
was aware that the tower was in need of painting and that he had been
in contact with tower painters.
3. On February 19, 2003, the Dallas Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of ten thousand dollars
($10,000), finding that Mr. Martin apparently willfully violated
Section 17.50 of the Rules. In a March 21, 2003, response to the NAL
("response"), Mr. Martin denied willfully violating the rules. Mr.
Martin asserted that he had been in contact with tower painters "in an
effort to enhance the tower's appearance so as to attract additional
lessees" and not because he believed the tower violated the rules. Mr.
Martin also claimed that he believed that the tower had "good
visibility" and had passed a Bureau "paint inspection" prior to its
November 21, 2000 registration. Moreover, Mr. Martin explained that he
relied upon a March 2002 statement from a maintenance company to the
effect that the tower should be repainted in a few years. Mr. Martin
asserted that at the time of the inspection "a large portion of the
tower ha[d] been sanded in preparation for painting." Mr. Martin
stated that he was preparing to paint the tower but persistent bad
weather delayed the project. Mr. Martin also explained that he had no
history of rule violations. Moreover, in seeking cancellation of the
proposed forfeiture amount, he submitted copies of his 1999, 2000 and
2001 federal income tax returns to establish an inability to pay. In a
June 29, 2004 telephone conversation with Bureau staff, Mr. Martin
stated that the subject antenna structure was painted in April of
4. On October 27, 2004, the Bureau released a Forfeiture Order. As an
initial matter, the Bureau explained that the Commission does not
routinely perform pre-registration paint inspections and had not done
so in the instant case. The Bureau also asserted that nothing in Mr.
Martin's response warranted overturning the agent's determination that
the tower's painted bands could not be readily distinguished at
approximately one fourth of a mile, and found that Mr. Martin violated
Section 17.50 of the Rules. The Bureau noted that Mr. Martin's
admission that the tower needed painting established that the
violation was "willful" as defined by the Commission, and that "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." The Bureau further
concluded that Mr. Martin's claim 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 violated
the rules did not negate a "willful" violation of those rules.
Moreover, the Bureau stated that Mr. Martin had not provided
sufficient details to warrant consideration of his claim that he made
preparations to paint his antenna structure but that unfavorable
weather delayed the painting. Specifically, the Bureau noted that it
was unclear whether Mr. Martin executed a painting contract after
being notified of the violation, or exactly when Mr. Martin had made
preparations for painting the tower. The Bureau also found that Mr.
Martin had not provided a sufficiently detailed description and dates
of the unfavorable weather conditions which delayed the painting.
However, after taking into consideration all of the statutory factors
described in accordance with Section 503(b) of the Communications Act
of 1934, as amended, ("Act"), Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, ("Forfeiture
Policy Statement"), the Bureau reduced the proposed forfeiture amount
from $10,000 to eight thousand dollars ($8,000) on the basis of Mr.
Martin `s history of overall compliance. The Bureau also found that
Mr. Martin successfully substantiated a financial hardship claim and
further reduced the forfeiture amount from $8,000 to two thousand five
hundred dollars ($2,500). On November 16, 2004, Mr. Martin submitted a
Petition for Reconsideration of the Forfeiture Order, largely
reiterating the arguments he made in his response, and reasserting
that his financial situation has not changed and that he is unable to
pay the forfeiture amount.
5. The forfeiture amount in this case was assessed in accordance with
Section 503(b) of the Act, Section 1.80 of the Rules, and the
Forfeiture Policy Statement. In examining Mr. Martin'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. As a result of our review, we conclude that no
further reduction in the forfeiture is warranted.
A. Tower Painting Violation
6. Section 17.50 of the Rules states that antenna structures requiring
painting must be cleaned or repainted as often as necessary to
maintain good visibility. The Commission has consistently held that
there is a significant public safety concern with regard to antenna
structures. Thus, the Commission enforces antenna structure
registration requirements and painting requirements to maintain the
tower's visibility to aircraft.
7. In his Petition for Reconsideration, Mr. Martin again denies violating
Section 17.50 of the Rules. Mr. Martin again claims that at the time
of the inspection, a large part of the tower had been sanded in
preparation for painting in order to enhance its appearance, and not
because Mr. Martin believed that it was in violation of the tower
painting standards. As we stated supra, Section 17.50 of the Rules
requires antenna towers to be maintained to ensure good visibility. As
explained in the Forfeiture Order, the inspecting agent's observations
of the antenna structure were consistent with established procedure
and he correctly determined, based on his observations and experience,
that the antenna structure paint was clearly and obviously "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."
The agent also noted that black cabling on the outside of the
structure covered the painted metal tower, further reducing its
visibility. Thus, Mr. Martin's belief that the tower complied with the
subject rules does not overcome the observations of the agent.
Accordingly, we affirm our previous finding in the Forfeiture Order
that Mr. Martin violated the subject rule.
8. Mr. Martin also asserts that he did not "willfully" violate the rules.
The issue of whether the violation was "willful" was previously fully
and correctly discussed in the Forfeiture Order. At that time, we
explained that Mr. Martin's admission to the inspecting agent that the
tower needed painting, for whatever reason, confirms that the
violation was willful. 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
9. Mr. Martin next claims that the Forfeiture Order failed to consider
that he relied upon the advice from other people and sources in
determining when to repaint his antenna structure - specifically, the
alleged comments of a tower maintenance person, an alleged discussion
between his wife and Commission staff about a "paint inspection" prior
to registration and some lines of text from the FCC website. To the
extent that Mr. Martin may be attempting to rely upon an agency theory
for the notion that any tower painting violation was not his
responsibility but was the responsibility of the tower painting
company or Commission staff, he is mistaken. We find no agency
relationship here, and even if we did, the tower owner, and not his
agent, is held responsible and accountable for a rule violation. Mr.
Martin also states that he "did not know that the tower's paint was in
violation of standards." A lack of knowledge neither exonerates nor
mitigates a rule violation. Mr. Martin, as a tower owner, is expected
to know and adhere to the rules. The tower painting specifications are
found in Section 17.23 of the Rules. That rule amplifies the general
requirements of Section 17.50 of the Rules. According to Section 17.23
of the Rules, antenna structures "must" conform to the painting
requirements referenced in the Federal Aviation Administration's
("FAA") Advisory Circular, entitled "Obstruction Marking and
Lighting." Thus, the requirements are set forth and the burden is on
the tower owner to ensure compliance with those requirements.
10. Mr. Martin alleges that prior to the field inspection he had executed
a contract and prepaid a tower painter, who had only been able to sand
the tower by the time of the inspection. Mr. Martin argues that the
cold, wet and windy weather conditions prevented the contractor from
completing the work. Mr. Martin contends that the Forfeiture Order
ignores his claim that on the day of the inspection, his antenna
structure was largely sanded "in preparation for repainting." We
disagree. As noted in the Forfeiture Order, Mr. Martin did not provide
objective evidence that he initiated the tower painting process prior
to the field inspection. Although in his Petition for Reconsideration
Mr. Martin submitted rainfall and temperature records for the subject
time span to support the notion that the weather hindered completion
of the tower repainting, these exhibits fail to satisfactorily
establish his contention. Accordingly, to the extent that Mr. Martin
seeks to mitigate the violation due to his efforts to repaint the
antenna structure prior to inspection, we find that the issue was
fully discussed and correctly decided in the Forfeiture Order.
Specifically, the Forfeiture Order noted that it was unclear whether
Mr. Martin executed a painting contract after being notified of the
violation, or exactly when Mr. Martin made the preparations for
painting. Mr. Martin submitted no objective evidence that he entered
into an agreement to paint the tower (such as a signed contract) prior
to the October 23, 2002, inspection and provided no additional
information in the Petition for Reconsideration to change or alter
that decision. Mr. Martin also explains that after the inspection "the
tower was painted at the first opportunity during the inclement and/or
unsafe weather period." To the extent that Mr. Martin seeks to
mitigate the violation by stating that the tower was repainted as soon
as possible after the inspection, the Commission has repeatedly
stated that remedial actions taken to correct a violation are not
mitigating factors warranting reduction of a forfeiture.
A. Inability to Pay
11. In assessing forfeiture amounts, Section 503(b)(2)(D) of the Act and
Section 1.80(b)(4) of the Rules require that the Commission take into
account, among other things, ability to pay claims. Section
503(b)(2)(D) of the Act and Section 1.80(b)(4) of the Rules provide
mitigating factors that may result in reducing or canceling a
forfeiture amount. Among these factors is an inability to pay claim. A
successful claim requires specific supporting financial documentation,
as described in paragraph 11 of the NAL. Generally, the Commission
relies upon gross revenues or receipts as the best indicator of the
12. Mr. Martin again asserts an inability to pay the forfeiture amount,
but adds nothing to his previously rejected showing that would permit
us to approve his request. He merely restates that "due to a
bankruptcy, I am unable to borrow any money and my current cash flow
will not permit me to pay a $2,500 forfeiture. . . ." However, Mr.
Martin fails to demonstrate that there is any pending bankruptcy
proceeding, and the last case was discharged in 1997. Accordingly, we
concur with the findings of the underlying Forfeiture Order, and find
that no further reduction of the forfeiture amount is warranted on the
basis of an inability to pay claim.
IV. ordering clauses
13. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act
and Section 1.106 of the Rules, the Petition for Reconsideration filed
by Mr. Marshall D. Martin of the Enforcement Bureau's Forfeiture Order
for the NAL/Acct. referenced above IS DENIED.
14. IT IS FURTHER ORDERED that, pursuant to Section 503(b)(2)(D) of the
Act and Section 1.80(b)(4) of the Rules, Mr. Marshall D. Martin IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $2,500 for willfully
violating Section 17.50 of the Rules.
15. 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. 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 Federal Communications Commission, P.O. Box 358340,
Pittsburgh, PA 15251-8340. Payment by overnight mail may be sent to
Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106. Requests for
payment of the full amount of the NAL under an installment plan should
be sent to: Associate Managing Director - Financial Operations, 445
12^th Street, S.W., Room 1-A625, Washington, D.C. 20554.
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 75944.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
The referenced document was initially entitled, "Appeal of Forfeiture
Marshall D. Martin,19 FCC Rcd 20977 (Enf. Bur. 2004).
47 C.F.R. S 17.50.
Marshall D. Martin, NAL/Acct. No. 200332500003 (Enf. Bur., Dallas Office,
rel. February 19, 2003).
The referenced document was initially entitled "Statement Seeking
Cancellation of the Proposed Forfeiture," hereinafter, "Response to the
Forfeiture Order, 19 FCC Rcd at 20978 n.9, citing, Access.1
Communications Corp.-NY, Forfeiture Order, 18 FCC Rcd 22289, 22291 at n.8
(Enf. Bur. 2003) ("Access.1"). In so citing, the Bureau explained that
when there is a difference of opinion between an agent and a tower owner
concerning the visibility of an antenna structure and compliance with
Section 17.50 of the Rules, the Bureau routinely relies on the agent's
observations to determine the tower's compliance with the Rules.
Forfeiture Order, 19 FCC Rcd at 20979.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
Forfeiture Order, 19 FCC Rcd at 20979.
Mr. Martin appended the following information to the petition: (1) the
wind and weather charts spanning January 1991 through October 2004, with
October 2002 to March 2003 highlighted, (2) a copy of the first page of an
application for antenna structure registration, "FCC Application for
Antenna Structure Registration, FCC Form 854," with "a copy of [his]
wife's contemporaneous notes" as follows: "they will make a painting &
lighting review before granting reg." and a page from the Commission's
dated November 2, 2004, with the following language highlighted: ". . . to
registration, existing structures must be maintained in accordance with
any painting and/or lighting specifications originally assigned to the
structure by the FCC."
47 U.S.C. S 503(b)(2)(D).
SpectraSite Communications, Inc., Notice of Apparent Liability for
Forfeiture, 17 FCC Rcd 7884, 7888 (2002); AT&T Wireless Services, Inc.,
Forfeiture Order, 17 FCC Rcd 21866, 21871 (2002); Cumulus Licensing Corp.,
Forfeiture Order, 19 FCC Rcd 24815 (Enf. Bur. 2004), recon. denied, 21 FCC
Rcd 1032 (Enf. Bur. 2006) ("Cumulus"); Exosphere Broadcasting, LLC,
Forfeiture Order, 19 FCC Rcd 23554 (Enf. Bur. 2004); North Country
Repeaters, Forfeiture Order, 19 FCC Rcd 22139 (Enf. Bur. 2004).
See Cumulus, 21 FCC Rcd at 24817-18 (complicated circumstances that
arguably contribute to delaying compliance with tower painting
requirements violate Section 17.50 of the Rules).
Forfeiture Order, 19 FCC Rcd at 20977.
Forfeiture Order, 19 FCC Rcd at 20977.
Id. at 20979.
As discussed above, in his Petition for Reconsideration, Mr. Martin
claimed that he had 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.
See P 3.
Section 312(f)(1) of the Act, 47 USC S 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., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991),
recon denied, 7 FCC Rcd. 3454 (1992); see also Nan Tan Computer Co.,
Notice of Apparent Liability for Forfeiture, 9 FCC Rcd 3092 (Field
Operations Bur. 1994).
Mr. Martin claims that "in March 2002, the maintenance company that
plumbed and tensioned the tower told me that it should be probably painted
within a couple of years and I budgeted for that expense in that time
frame." Response at 2.
Mr. Martin alleges that it was his understanding, on the basis of
hand-written notes his wife took when registering the tower, that someone
in the "FCC office" said that they would make a painting and lighting
review before granting the registration. See Petition, Attachment 4
(wife's printed notes). The Forfeiture Order noted that the Commission
does not routinely perform pre-registration paint inspections and found
that it did not do so in this case. Forfeiture Order, 19 FCC Rcd at 20978.
Assuming arguendo, even if such an inspection took place and the antenna
structure were found to be in compliance with Section 17.50 of the Rules
at the time of the 2000 registration, such compliance would not ensure
that the tower painting requirements would be met at the time of the 2002
See Attachment 5.
(dated Nov. 2, 2004). In context, the language highlighted by Mr. Martin
concerns changes to the required painting specifications for existing
structures. The highlighted language follows: "Prior to registration,
existing structures must be maintained in accordance with any painting
and/or lighting specifications originally assigned to the structure by the
FCC." What follows are specifics details concerning how the Commission
handles existing, unregistered structures, which may include requiring the
owner to request that the structure be re-studied by the FAA prior to
issuing a Registration. In the instant case, there is no indication an
additional FAA test was requested or required.
See Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC
Rcd 21861, 21863-64 (2002) (finding that it is the antenna structure
owner's primary responsibility to comply with tower lighting requirements,
and denying its claim that the forfeiture should be cancelled because
lessee/contractor did not report outages).
Petition for Reconsideration at 3.
Lakewood Broadcasting Service, Inc., Memorandum Opinion and Order, 37 FCC
2d 437, 438 (1972) (licensees are expected "to know and conform their
conduct to the requirements of our rules").
47 C.F.R. S 17.23.
Mr. Martin's antenna structure registration requires it to comply with FAA
marking guidelines, chapters 1, 3, 4, 13 and 22. The Advisory Circular
explains that tower marking:
. . . is done to warn pilots on a potential collision course with a
structure of its presence during daylight hours. . . . The chromaticity
and luminance standards of aviation orange and white paint should conform
to Federal Standard FED-STD-595. . . . However, all outdoor paints
deteriorate with time. While it is not practical to give a maintenance
schedule for all climates, surfaces should be repainted whenever the color
changes noticeably or its effectiveness is reduced by scaling, oxidation,
or chipping. An orange color tolerance chart is available upon request . .
. for determining when repainting is required (emphasis added).
FAA Paint and Light Advisory Circular, "FAA Standards for Obstruction
Marking and Lighting," No. 70/7460-1G at i, 5 (1985).
19 FCC Rcd at 20979.
Mr. Martin proffers rainfall and temperature records that he obtained from
a Nacogdoches, Texas, website. www.faculty.sfasu.edu. Mr. Martin
highlighted the months from October of 2002 (the month of the inspection)
to February of 2003. The highlighting merely points out that on a
going-forward basis from October of 2002 to February of 2003, the
temperatures were generally lower, and rainfall generally heavier, than at
other times of the year. This information is insufficient to determine
when or whether tower painting was precluded immediately after the
Forfeiture Order, 19 FCC Rcd at 20979.
See AT&T Wireless, 17 FCC Rcd at 21870 (remedial action to correct tower
painting violation was not a mitigating factor warranting reduction of
forfeiture); Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099, 6099
(1994); (corrective action taken to comply with the Rules is expected, and
does not mitigate any prior forfeitures or violations); TCI Cablevision of
Maryland, Memorandum Opinion and Order, 7 FCC Rcd 6013, 6014 (1992)
(basing mitigation of a forfeiture upon corrective action taken subsequent
to the misconduct upon which liability is based would tend to encourage
remedial rather than preventive action) citing International Broadcast
Corp., Memorandum Opinion and Order, 19 FCC 2d 793, 794 (1969); Station
KGVL, Inc., Memorandum Opinion and Order, 42 FCC 2d 258, 259 (1973)
(licensees not excused for past violations by reason of subsequent
corrective action); c.f. A-O Broadcasting Corporation, Memorandum Opinion
and Order, 20 FCC Rcd 756, 761 (2005) ("A-O Broadcasting") (because
licensee showed good faith by obtaining EAS equipment and starting
constructing a main studio before the inspection, the forfeiture was
reduced); Radio One Licenses, Inc., Memorandum Opinion and Order, 18 FCC
Rcd 15964, 15965 (2003), recon. denied, 18 FCC Rcd 25481 (2003) (reducing
a forfeiture from $9,200 to $8,000 for EAS violations because the licensee
had identified the problems and had ordered replacement equipment prior to
the Field Office's on-site inspection).
Adjustment Criteria, 47 C.F.R. S 1.80(b)(4).
See PJB Communications of Virginia, Inc.,7 FCC Rcd 2088, 2089 (1992) ("PJB
Communications"); see also Forfeiture Policy Statement, 12 FCC Rcd at
Forfeiture Order, 19 FCC Rcd at 20979.
In re: Martin, Case No. 95-17095-RA, Order Closing Case After Discharge
(Bankr. C.D.Ca.., September 29, 1997); see Adelphi Communications,
Forfeiture order, 18 FCC Rcd 7652, 7654 P 8 (Enf. Bur. 2003) (finding that
a Chapter 11 bankruptcy filing -- alone, without financial documentation
-- does not support an inability to pay claim and thus does not provide a
basis to adjust or cancel an assessed forfeiture); see also North American
Broadcasting Co., Inc., Memorandum Opinion and Order, 19 FCC Rcd 2769,
2770-71P 6 (Enf. Bur. 2004); Pinnacle Towers, Inc., Forfeiture Order, 18
FCC Rcd 16365, 16366-67 P 7 (Enf. Bur. 2003); Friendship Cable of Texas,
Inc., Forfeiture Order, 17 FCC Rcd 8571, 8572-73 P 9 (Enf. Bur. 2002).
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 C.F.R. S 503(b)(2)(D).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
Federal Communications Commission DA 07-224
Federal Communications Commission DA 07-224