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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                  )                               
                                                                  
     In the Matter of             )                               
                                      File Number EB-06-NY-098    
     NBTY, Inc.                   )                               
                                      NAL/Acct. No.               
     Owner of Antenna Structure   )   200732380009                
                                                                  
     ASR # 1064367                )   FRN  0004 1340 11           
                                                                  
     Bohemia, New York            )                               
                                                                  
                                  )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                      Released: March 9, 2007

   By the District Director, New York Office, Northeast Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that NBTY, Inc. ("NBTY"), owner of antenna structure 1064367 located
       in Bohemia, New York, apparently willfully and repeatedly violated
       Section 303(q) of the Communications Act of 1934, as amended, ("Act"),
       and Sections 17.21(a) and 17.23  of the Commission's Rules ("Rules")
       by failing to paint its tower aviation orange and white as required by
       the Antenna Structure Registration (ASR) and specified on the tower's
       FAA determination of "no hazard." We conclude, pursuant to Section
       503(b) of the Communications Act of 1934, as amended ("Act"), that
       NBTY is apparently liable for a forfeiture in the amount of ten
       thousand dollars ($10,000). In addition, we admonish NBTY for failing
       to post the ASR Number at the base of the tower as required under
       Section 17.4(g) of the Rules.

   II. BACKGROUND

    2. On May 16, 2006, an agent in the Commission's New York Office
       conducted an inspection of antenna structure 1064367 and observed that
       the steel gray tower was unpainted, and that the registration number
       was not posted. The ASR for this tower requires that the tower be
       painted and lighted in accordance with FAA Chapters 3, 4, 5 and 13 in
       FAA Circular Number 70/7460-1J. Specifically, Chapter 3 provides that
       antenna structures shall display alternate bands of aviation orange
       and white paint.

    3. On May 16, 2006, the agent met with NBTY's construction manager and
       informed him of the painting and posting violations. The agent advised
       him that the tower must be painted as soon as possible to conform to
       the required specifications, and that the ASR Number must be posted.
       The construction manager searched NBTY's files and showed the agent a
       copy of the FAA's Determination of "No Hazard," Aeronautical Study No.
       97-AEA-2480-OE, and a copy of the FCC ASR. Both documents clearly
       indicate that the structure must be painted and marked in accordance
       with FAA Chapters 3, 4, 5 and 13 in FAA Circular Number 70/7460-1J.
       NBTY's records also contained a Supplemental Notice of Actual
       Construction or Alteration, Form 7460-2, completed by NBTY and faxed
       to the FAA on November 3, 1998. The form, signed by NBTY's Vice
       President, indicates that construction of the tower was completed, and
       is marked and lighted. NBTY's records also contained FCC Form 854,
       Application for Antenna Structure Registration, indicating that the
       150-foot tower was constructed on August 1, 1998, and that the tower
       conforms to FAA Study Number 97-AEA-2480-OE, a copy of which was
       submitted with the application. The application was signed by NBTY's
       Vice President and dated May 6, 1999.

    4. On May 17, 2006, the agent again observed that antenna structure
       1064367 was not painted and that the registration number was not
       posted. The agent then met with the construction manager and also with
       NBTY's Vice President of Construction, and explained to them that the
       tower did not conform to the FCC and FAA painting requirements and was
       therefore in violation of FCC Rules. The agent also informed the Vice
       President of the violation for not posting the ASR Number. In response
       to questions from the agent, the Vice President stated that the tower
       had never been painted and that he believed that the top-mounted,
       steady-burning red obstruction lights were all that were required. The
       agent reviewed with the Vice President all the documentation the
       construction manager provided the previous day, and advised them that
       it may be appropriate  to notify the FAA since the tower was not
       marked and posed a potential hazard to air navigation. The Vice
       President stated that he would make preparations to paint the tower,
       and post the ASR Number as soon as a sign was made.

    5. On June 14, 2006, Commission agents inspected antenna structure
       1064367 and observed that the structure was not painted as required by
       the tower's ASR. The registration number was posted on the gate at the
       base of the tower.

   III. DISCUSSION

    6. Section 503(b) of the Act provides that any person who willfully or
       repeatedly fails to comply substantially with the terms and conditions
       of any license, or willfully or repeatedly fails to comply with any of
       the provisions of the Act or of any rule, regulation or order issued
       by the Commission thereunder, shall be liable for a forfeiture
       penalty. The term "willful" as used in Section 503(b) has been
       interpreted to mean simply that the acts or omissions are committed
       knowingly. The term "repeated" means the commission or omission of
       such act more than once or for more than one day.

    7. Section 303(q) of the Act states that antenna structure owners shall
       maintain the painting and lighting of antenna structures as prescribed
       by the Commission. Section 17.21(a) of the Commission's Rules states
       that  "[a]ntenna structures shall be painted and lighted when they
       exceed 60.96 meters (200 feet) in height above ground or they require
       special aeronautical study." Section 17.23 states that "each new or
       altered antenna structure to be registered on or after January 1,
       1996, must conform to the FAA's painting and lighting recommendations
       set forth on the structure's FAA determination of `no hazard,' as
       referenced in the...FAA Advisory Circulars..." As described above, the
       registration for antenna structure 1064367 specifically requires that
       the tower be painted in accordance with Chapter 3 in FAA Circular
       Number 70/7460-1J, as determined by FAA Aeronautical Study Number
       97-AEA-2480-OE.

    8. On May 16 and 17, and June 14, 2006, agents inspected antenna
       structure 1064367 and observed that the structure was unpainted. On
       May 16 and 17, 2006 an agent interviewed NBTY representatives who
       stated that the structure had never been painted. NBTY's files
       contained copies of the FCC ASR and the FAA determination of "no
       hazard," both of which indicate that the tower is required to be
       painted. The file also contained NBTY's Notice of Actual Construction
       to the FAA and the FCC application for Antenna Structure Registration.
       In these documents, which were signed by NBTY's Vice President of
       Construction in 1999, NBTY reported that construction of the tower was
       complete and that the tower was painted. Accordingly, based on the
       evidence before us, we find that NBTY apparently willfully and
       repeatedly violated Section 303(q)  of the Act and Sections 17.21(a)
       and 17.23 of the Rules by failing to paint its antenna structure.

    9. Section 17.4(g) of the Commission's Rules provides that the Antenna
       Structure Registration Number must be displayed in a conspicuous place
       so that it is readily visible near the base of the tower. At the time
       of inspections on May 16 and 17, 2006, the agent observed that there
       was no Antenna Structure Registration number at the base of the tower.
       We admonish NBTY for failing to post the Antenna Structure
       Registration Number at the base of its tower in violation of Section
       17.4(g).

   10. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
       of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
       ("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
       base forfeiture amount for failing to comply with prescribed antenna
       structure marking is $10,000. In assessing the monetary forfeiture
       amount, we must also take into account the statutory factors set forth
       in Section 503(b)(2)(D) of the Act, which include the nature,
       circumstances, extent, and gravity of the violations, and with respect
       to the violator, the degree of culpability, and history of prior
       offenses, ability to pay, and other such matters as justice may
       require. Applying the Forfeiture Policy Statement, Section 1.80, and
       the statutory factors to the instant case, we conclude that NBTY is
       apparently liable for a ($10,000) forfeiture.

   11. We are concerned about the extended period of time during which NBTY's
       tower has remained unpainted. NBTY is directed to submit within ten
       (10) days a report regarding the status of the tower. If the tower
       still remains unpainted, NBTY is directed to report its exact time
       frame for painting the tower.

   IV. ORDERING CLAUSES

   12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.311,
       0.314 and 1.80 of the Commission's Rules, NBTY, Inc. is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       ten  thousand Dollars ($10,000) for violation of Section 303(q) of the
       Act, and Sections 17.21(a) and 17.23 of the Rules.

   13. IT IS FURTHER ORDERED that NBTY, Inc. is hereby ADMONISHED for its
       violation of Section 17.4(g) of the Commission's Rules.

   14. IT IS FURTHER ORDERED that NBTY, Inc. SHALL SUBMIT within ten (10)
       days of the release of this Notice of Apparent Liability for
       Forfeiture a report regarding the status of the tower as set forth in
       paragraph 12 supra.

   15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's Rules within thirty (30) days of the release date of this
       Notice of Apparent Liability for Forfeiture, NBTY, Inc. SHALL PAY the
       full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

   16. 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.

   17. The response, if any, must be mailed to Federal Communications
       Commission, Enforcement Bureau, Northeast Region, New York Office, 201
       Varick Street, New York, NY 10014, and must include the NAL/Acct. No.
       referenced in the caption.

   18. 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.

   19. Requests for payment of the full amount of this Notice of Apparent
       Liability for Forfeiture under an installment plan should be sent to:
       Associate Managing Director, Financial Operations, 445 12th Street,
       S.W., Room 1A625, Washington, D.C. 20554.

   20. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by Certified Mail, Return Receipt
       Requested, and regular mail, to NBTY, Inc. at its  address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Daniel W. Noel

   District Director

   New York Office

   Northeast Region

   Enforcement Bureau

   47 U.S.C. S 303(q).

   47 C.F.R. SS 17.21(a), 17.23.

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

   47 C.F.R. S 17.4(g).

   Although the Rules do not specifically state that tower owners are
   required to notify the FAA regarding paint problems, the agent made this
   recommendation due to the unpainted tower's potential hazard to air
   traffic serving Long Island McArthur Airport, located approximately one
   nautical mile to the north. Additionally, FAA Advisory Circular, AC
   70/7460-1K, Chapter 1, requires that "[t]he [structure] owner is
   responsible for adhering to approved marking and/or lighting limitations,
   and/or recommendations given, and should notify the FAA and FCC (for those
   structures regulated by the FCC) prior to removal of marking and/or
   lighting."

   Section 312(f)(1) of the Act, 47 U.S.C. 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', 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 or any rule or regulation of the Commission
   authorized by this Act...." See Southern California Broadcasting Co., 6
   FCC Rcd 4387 (1991).

   Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
   violations for which forfeitures are assessed under Section 503(b) of the
   Act, provides that "[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."

   47 U.S.C. S 303(q).

   47 C.F.R. S 17.21(a). Although the tower is under 200 feet, it required a
   special aeronautical study due to its proximity to Long Island McArthur
   Airport, located approximately one nautical mile to the north.

   47 C.F.R. S 17.23.

   47 U.S.C. S 17.4(g).

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
   S1.80.

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

   47 U.S.C. SS 303(q), 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80,
   17.21(a), 17.23.

   See 47 C.F.R. S 1.1914.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

                                       5

   Federal Communications Commission