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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number EB-
02-KC-301
Midwest Tower Partners, LLC )
)
NAL/Acct. No.200232560007
Owner of Antenna Structure 1045073 )
)
FRN Number: 0006-1628-53
Milwaukee, WI )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Re-
leased: June 4,
2002
By the Enforcement Bureau, Kansas City Office
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture, we find that Midwest Tower Partners, LLC
(``Midwest'') willfully violated Section 17.50 of the
Commission's Rules (``Rules'')1 by failing to clean or
repaint the antenna structure as often as necessary to
maintain good visibility. We conclude that Midwest Tower
Partners, LLC is apparently liable for a forfeiture in the
amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On May 1, 2002, an agent of the FCC Enforcement
Bureau's Kansas City Field Office inspected a Midwest
antenna structure with registration number 1045073 located
at 41° 42' 20'' N latitude & 091° 28' 08'' W longitude, 1.24
miles east of Iowa City, Iowa. Both the FCC Rules and the
FAA specifications for this structure required the structure
to be painted. The agent observed the antenna structure's
black, unpainted coaxial cable on all three legs of the
structure over its entire length, obscuring the paint.
III. DISCUSSION
3. Section § 17.50 of the Rules states that antenna
structures requiring painting under this part shall be
cleaned or painted as often as necessary to maintain good
visibility. Section 17.2(a) of the Rules provides that the
term ``Antenna structure'' includes ``the radiating and/or
receive system, its supporting structures and any
appurtenances mounted thereon.''2 On May 1, 2002, Midwest
failed to maintain good visibility of its antenna structure
number 104573 located near Iowa City, Iowa. Even though the
metallic supporting structure of the antenna structure was
painted, the unpainted, black coaxial cable mounted on the
outside of the supporting structure obscured the visibility
of the paint.
4. Based on the evidence before us, we find that, on
May 1, 2002, Midwest Tower Partners, LLC willfully3 violated
Section 17.50 of the Commission's Rules.
5. Pursuant to Section 1.80(b)(4) of the Commission's
Rules, the base forfeiture amount for failure to comply with
prescribed marking is $10,000.4 Section 503(b)(2)(D) of the
Communications Act of 1934, as amended (``Act''), requires
us to 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.''5 Considering the entire record and
applying the statutory factors listed above, this case
warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,6 and Sections 0.111, 0.311 and
1.80 of the Commission's Rules,7 Midwest Tower Partners, LLC
is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of ten thousand dollars ($10,000)
for willful violation of Section 17.50 of the Rules.
7. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules, within thirty days of the
release date of this NOTICE OF APPARENT LIABILITY, Midwest
Tower Partners, LLC, SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment MUST INCLUDE the FCC Registration Number (FRN)
referenced above, and should note the NAL/Acct. No.
referenced above.
9. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, S.W., Washington, D.C. 20554, ATTN: Enforcement
Bureau - Technical & Public Safety Division, and MUST
INCLUDE the FRN and the NAL/Acct. No. referenced in the
letterhead above.
10. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the petitioner submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
submitted.
11. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Federal Communications Commission, Chief,
Revenue and Receivables Operation Group, 445 12th Street,
S.W., Washington, D.C. 20554.8
12. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail Return
Receipt Requested to Midwest Tower Partners, LLC at 12323 W.
Fairview Ave. Milwaukee, Wisconsin 53226.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City Office
_________________________
1 47 C.F.R. § 17.50
2 47 C.F.R. § 17.2(a)
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious and
deliberate commission or omission of such act, irrespective
of any intent to violate any provision of this Act ....''
See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
4 47 C.F.R. § 1.80(b)(4)
5 47 U.S.C. § 503(b)(2)(D)
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, 0.311, 1.80.
8 See 47 C.F.R. § 1.1914.