Click here for Adobe Acrobat version
Click here for Microsoft Word version

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


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

In the Matter of                 )
                                )       File Number: EB-02-BF-
Niagara Mohawk Power             ) 250
Corporation                      )
Owner of Antenna Structure #     )       NAL/Acct. No. 
1002926                          ) 200332280004
Miser Hill, Rutland, New York    )
                                        FRN: 0005 9076 21


                                        Released: November 7, 

By the Resident Agent, Buffalo Office, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''),  we  find  that  Niagara  Mohawk  Power   Corporation, 
(``NMPC'') owner of  antenna structure  #1002926, has  apparently 
violated Section 17.50 of the Commission's Rules (``Rules'')1  by 
failing to clean  and repaint its  antenna structure to  maintain 
good visibility.  We conclude that NMPC is apparently liable  for 
a forfeiture in the amount of ten thousand dollars ($10,000).

                         II.  BACKGROUND

     2.   On August  27, 2002,  an agent  of the  Buffalo  Office 
inspected the  antenna structure  bearing FCC  antenna  structure 
registration  (``ASR'')  #1002926  and  located  on  Miser  Hill, 
Rutland, New York.  At the time of inspection, the tower's  paint 
was chipped and faded reducing the visibility of the structure.

     3.   On September  3, 2002,  the  Buffalo Office  issued  an 
Official Notice of Violation (``NOV'') to NMPC for the  violation 
found during the August 27, 2002 inspection.  Agent Stanbro cited 
Niagara Mohawk Power Corporation for non-compliance with  Section 
17.50 of the Rules. 

     4.   On September 11,  2002, the Buffalo  Office received  a 
response from Mr. Robert Tiller, Communications Engineer, Niagara 
Mohawk Power Corporation.  Mr. Tiller stated as of September  10, 
2002, the  tower  (#1002926) was  being  repainted and  would  be 
finished within the next four days, depending on the weather. 

                        III.  DISCUSSION

     5.   Section  17.50  of  the   Rules  states  that   antenna 
structures requiring painting under this part shall be cleaned or 
repainted as often as necessary to maintain good visibility.  The 
agent observed that the tower paint was badly faded and  chipped, 
making the tower a hazard to air navigation.

     6.   Based on  the evidence  before us,  we find  that  NMPC 
willfully2 and repeatedly3 violated Section 17.50 of the rules by 
failing to repaint  the tower to  maintain good visibility.   The 
Commission's Forfeiture Policy Statement and Amendment of Section 
1.80 of the  Rules to Incorporate  the Forfeiture Guidelines,  12 
FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd  303(1999) 
(``Forfeiture Policy  Statement'')4,  sets  the  base  forfeiture 
amount at $10,000 for failure to comply with prescribed  lighting 
and/or marking of antenna structures.  In assessing the  monetary 
forfeiture amount,  we  must  take  into  account  the  statutory 
factors set forth in  Section 503(b)(2)(D) of the  Communications 
Act of 1934  (``Act''), as  amended5, which  include 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.   Applying the  Forfeiture Policy  Statement 
and the statutory factors  to the instant  case and applying  the 
inflation adjustments,  we believe  that  a ten  thousand  dollar 
($10,000) monetary forfeiture is warranted.

                      IV.  ORDERING CLAUSES

     7.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the  Act6, and Sections  0.111, 0.311 and  1.80 of  the 
Rules7, Niagara Mohawk  Power Corporation is  hereby NOTIFIED  of 
its APPARENT  LIABILITY FOR  A FORFEITURE  in the  amount of  ten 
thousand dollars ($10,000) for willful and repeated violation  of 
Section 17.50 of the Commissions Rules.

     8.   IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Rules, within thirty days of the release date of this  NOTICE 
OF APPARENT LIABILITY,  Niagara Mohawk  Power Corporation,  SHALL 
PAY the full amount  of the proposed forfeiture  or SHALL FILE  a 
written  statement  seeking  reduction  or  cancellation  of  the 
proposed forfeiture.

     9.   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 should note the 
NAL/Acct. No. 200332280004 and FRN: 0005 9076 21.

     10.  The  response,  if  any,  must  be  mailed  to  Federal 
Communications Commission,  Office  of the  Secretary,  445  12th 
Street, SW,  Washington,  DC  20554,  Attn:  Enforcement  Bureau-
Technical  &  Public  Safety  Division,  and  MUST  INCLUDE   THE 
NAL/Acct. No. 200332280004.

     11.  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 

     12.  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 Operations Group, 445 12th Street, S.W.,  Washington, 
D.C. 20554.8 

     13.  Under the Small Business Paperwork Relief Act of  2002, 
Pub L. No.  107-198, 116 Stat.  729 (June 28,  2002), the FCC  is 
engaged in  a two-year  tracking process  regarding the  size  of 
entities involved  in forfeitures.   If you  qualify as  a  small 
entity and  if you  wish to  be  treated as  a small  entity  for 
tracking purposes, please  so certify  to us  within thirty  (30) 
days of this  NAL, either in  your response  to the NAL  or in  a 
separate filing to  be sent  to the Technical  and Public  Safety 
Division.   Your  certification  should  indicate  whether   you, 
including your parent  entity and its  subsidiaries, meet one  of 
the definitions  set forth  in  the list  provided by  the  FCC's 
Office of Communications Business Opportunities (OCBO) set  forth 
in Attachment  A  of this  Notice  of Apparent  Liability.   This 
information will  be  used  for  tracking  purposes  only.   Your 
response or  failure to  respond to  this question  will have  no 
effect on your  rights and responsibilities  pursuant to  Section 
503(b)  of  the  Communications  Act.   If  you  have   questions 
regarding any  of  the  information contained  in  Attachment  A, 
please contact OCBO at (202) 418-0990.

     14.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall  be  sent  by  Certified  Mail,  Return 
Receipt Requested, to Niagara Mohawk Power Corporation, 300  Erie 
Blvd. W., Syracuse, New York 13612

                              FEDERAL COMMUNICATIONS COMMISSION

                              Gene J. Stanbro
                              Resident Agent
                              Buffalo, New York Office

1 47 C.F.R.  17.50.
2 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to Section 503(b) of the Act, provide that       ``the 
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).

3 Section 312(f)(2), which also applies to Section 503(b), 
provides: [t]he term ``repeated'', when used with reference to 
the commission or omission of any act, means the commission or 
omission of such act more than once or, if such commission or 
omission is continuous, for more than one day.

4 47 C.F.R.  1.80.

5 47 U.S.C.  503(b)(2)(D).

6 47 U.S.C.  503(b).

7 47 C.F.R.  0.111, and 0.311.
8 See 47 C.F.R.  1.1914.