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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-
KC-301
)
Midwest Tower Partners, LLC ) NAL/Acct. No.
20023256007
)
Owner of Antenna Structure 1045073 ) FRN #0006-1628-
53
)
Milwaukee, Wisconsin )
MEMORANDUM OPINION AND ORDER
Adopted: June 30, 2003 Released:
July 2, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''),
we cancel the proposed monetary forfeiture in the amount of
ten thousand dollars ($10,000), issued to Midwest Tower
Partners, LLC (``Midwest'') for its apparent willful
violation of Section 17.50 of the Commission's Rules
(``Rules'').1 The alleged violation involved Midwest's
failure to clean or repaint its antenna structure as often
as necessary to maintain good visibility.
2. On June 4, 2002, the District Director of the
Commission's Kansas City, Missouri Field Office (``Kansas
City Office'') issued a Notice of Apparent Liability for
Forfeiture (``NAL'')2 to Midwest for $10,000. On June 28,
2002, Midwest filed a response to the NAL.
II. BACKGROUND
3. On May 1, 2002, an agent from the Kansas City
Office inspected Midwest's antenna structure with
registration number 1045073 located at 41º 42' 20'' N
latitude & 091º 28' 08'' W longitude, 1.24 miles east of
Iowa City, Iowa. The agent observed black, unpainted
coaxial cable on all three legs of the structure and over
its entire length. The agent determined that the coaxial
cables obscured the tower's paint, to the degree that it
reduced its visibility in violation of Section 17.50 of the
Rules.
4. On June 4, 2002, the Kansas City Office issued a
NAL to Midwest for its failure to maintain good visibility
of its tower in apparent willful violation of Section 17.50
of the Rules. On June 28, 2002, Midwest filed a response to
the NAL seeking cancellation or reduction of the proposed
forfeiture. In its response, Midwest denies that the
coaxial cables referred to in the NAL compromised the good
visibility of the antenna structure in violation of Section
17.50. In support of this position, Midwest submitted
photographs with its response from various angles and
distances evincing the good visibility of the antenna
structure. Furthermore, Midwest asserts that Chapter 3 of
the Federal Aviation Administration's (``FAA's'') Advisory
Circular AC70/7460-1K on Obstruction Marking and Lighting
(``Advisory Circular'') states that the purpose of the
marking guidelines is, ``to make certain structures
conspicuous to pilots during daylight hours''3 and that
Midwest's tower complies with these guidelines because the
coaxial cable is narrower than the legs of the structure and
thus does not impair the visibility of the paint such that
it is harmful to aircraft. Midwest further states that the
painted surface on the structure does not show signs of
scaling, oxidation, chipping, layers of contamination, or
other defects that would require repainting under Section
17.50 of the Rules or the Advisory Circular. Finally,
Midwest cites its history of overall compliance in
requesting a cancellation or reduction of the proposed
forfeiture.
III. DISCUSSION
5. The forfeiture amount in this case was proposed in
accordance with Section 503(b) of the Communications Act of
1934 as amended (``Act''),4 Section 1.80 of the Rules,5 and
The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.6 In examining Midwest's response, 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 other such matters as justice may require.7
6. Section 17.50 of the Rules states that ``[a]ntenna
structures requiring painting under this part shall be
cleaned or repainted as often as necessary to maintain good
visibility.''8 After reviewing the record in this case,
including the photographs submitted by Midwest, we conclude
that the evidence does not support a finding that the black,
unpainted coaxial cables attached to Midwest's antenna
structure obstructed the good visibility of the structure in
violation of Section 17.50 of the Rules.9 We therefore,
cancel the NAL.
7. Accordingly, IT IS ORDERED that, pursuant to
Section 504(b) of the Act,10 and Section 1.80(f)(4) of the
Rules,11 the NAL, NAL/Acct. No. 200232560007 issued to
Midwest Tower Partners, LLC IS CANCELLED.
8. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to Midwest Tower Partners, LLC, 12323 W.
Fairview Avenue, Milwaukee, Wisconsin 53226 and to its
counsel, B. Lynn F. Ratnavale, Esq., at Lukas, Nace,
Gutierrez & Sachs, Chartered, 1111 19th Street, N.W., Suite
1200, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.50.
2 Notice of Apparent Liability for Forfeiture, NAL Acct. No.
200232560007 (Enf. Bur., Kansas City Office, rel. June 4,
2002).
3 FAA Advisory Circular AC 70/7460-1k, Obstruction Marking
and Lighting, Chapter 3. Marking Guidelines, Paragraph 30.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999).
7 47 U.S.C. § 503(b)(2)(D).
8 47 C.F.R. § 17.50.
9 Separate from our finding above, and in response to
Midwest's assertion that it is in compliance with the
Advisory Circular because the unpainted coaxial cables are
narrower than the legs of the structure, we note that the
Advisory Circular explicitly states that ``[a]lternate bands
of aviation orange and white are normally displayed on...
[c]oaxial cable, conduits, and other cables attached to the
face of the tower.'' FAA Advisory Circular AC 70/7460-1K,
Obstruction Marking and Lighting, Chapter 3. Marking
Guidelines, Paragraph 33(d). Thus, compliance with the
Advisory Circular would additionally require any cables
attached to the face of the tower to also be painted. See
Pinnacle Towers Inc., 18 FCC Rcd. 6419 (Enf. Bur. 2003).
10 47 U.S.C. § 504(b).
11 47 C.F.R. § 1.80(f)(4).