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

In the Matter of                )  
Sutro Corporation               )       File No. EB-02-PO-136
                                )       NAL/Acct.             No. 
Payette, Idaho                  )       FRN 0003-2822-39    

                        FORFEITURE ORDER 

Adopted:  October 9, 2003               Released:   October   14, 

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

             1.     In  this  Forfeiture  Order  (``Order''),  we 
               issue a monetary  forfeiture in the amount of  two 
               thousand   four   hundred   ($2,400)   to    Sutro 
               Corporation  (``Sutro''), for  repeated  violation 
               of  Section  17.4(a)  of  the  Commission's  Rules 
               (``Rules'').1    The  noted   violation   involves 
               Sutro's failure to register an antenna structure. 

             2.     On July 31, 2002, the Commission's  Portland, 
               Oregon,   Resident   Agent   Office    (``Portland 
               Office'')  issued a Notice  of Apparent  Liability 
               for   Forfeiture   (``NAL'')  to   Sutro   for   a 
               forfeiture  in   the  amount  of  three   thousand 
               dollars  ($3,000).2  Sutro filed  its response  to 
               the NAL on August 16, 2002.

                         II.  BACKGROUND

             3.     Sutro is  the owner  of  a 405  foot  antenna 
               structure  located  in  Payette,  Idaho,  at   the 
               coordinates  40-03-44  North  Latitude,  116-54-22 
               West  Longitude (``the  Payette  tower'').   Sutro 
               rents  space  on  the  Payette  tower  to  various 
               communications    users,    including    broadcast 
               stations.    On  May  23,   2002,  following   his 
               investigation   of    an   interference    problem 
               involving  the  Payette tower,  an  agent  at  the 
               Portland Office searched the Commission's  antenna 
               registration  records  and  determined  that   the 
               Payette tower was not registered.

             4.     The agent  determined from  property  records 
               that Sutro  owns the Payette  tower.  On June  11, 
               2002, the agent contacted Sutro's president,  John 
               H.  Runkle,  and  advised  Mr.  Runkle  that   the 
               Payette  tower must  be registered.   On July  30, 
               2002,  the agent again  searched the  Commission's 
               antenna registration records and again found  that 
               the Payette tower was not registered.    

             5.     On July 31, 2002, the Portland Office  issued 
               a NAL for a forfeiture in the amount of $3,000  to 
               Sutro for  failure to register the Payette  tower, 
               in  willful  and  repeated  violation  of  Section 
               17.4(a)  of the Rules.    In its  response to  the 
               NAL,Sutro  admits  that  the  Payette  tower   was 
               unregistered.  Sutro asserts that it made  several 
               unsuccessful  attempts  to  register  the  Payette 
               tower before  eventually registering it on  August 
               27, 2002.3  Sutro seeks cancellation or  reduction 
               of the proposed monetary forfeiture, arguing  that 
               its attempts to  register the tower and a  history 
               of  overall compliance  mitigate  the  violations.  
               Sutro  also  contends that,  if  a  forfeiture  is 
               imposed, it should be no more than $500.

                      III.      DISCUSSION

             6.     The  forfeiture  amount  in  this  case   was 
               assessed 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, 12 FCC  Rcd 
               17087  (1997),  recon.  denied,  15  FCC  Rcd  303 
               (1999)  (``Policy   Statement'').   In   examining 
               Sutro'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.6

             7.     Section 17.4(a)  of  the Rules  required  the 
               owners  of existing antenna  structures that  were 
               assigned painting or lighting requirements  before 
               July   1,   1996,  to   register   those   antenna 
               structures  no  later  than  July  1,  1998.   The 
               Payette  tower was subject  to this  requirement.7  
               The   FCC  agent's   investigation   and   Sutro's 
               statements  establish that the  Payette tower  was 
               unregistered from  July 1, 1998, until August  27, 
               2002.  We conclude that Sutro repeatedly  violated 
               Section 17.4(a) of the Rules. 8

             8.     Section  503(b)   of   the  Act   gives   the 
               Commission  authority   to  assess  a   forfeiture 
               penalty  against  any  person  if  the  Commission 
               determines  that  the person  has  ``willfully  or 
               repeatedly'' failed to comply with the  provisions 
               of the Act  or with any rule, regulation or  order 
               issued  by  the  Commission.   In  light  of   our 
               determination   that   Sutro's   violations   were 
               repeated,  it   is  not  necessary  to   determine 
               whether they were also willful. 9

             9.     Sutro's unsuccessful attempts to register the 
               Payette  tower do not  mitigate its violations  of 
               Section   17.4(a).    Sutro   filed   its    first 
               application  (FCC   Form  854)  to  register   the 
               Payette   tower  on   June  26,   1998.  10    The 
               Commission dismissed  that application because  it 
               provided  coordinates  which  differed  from   the 
               coordinates  indicated  in  the  Federal  Aviation 
               Administration   (``FAA'')   clearance   for   the 
               Payette  tower.    The  August  3,  1998,   letter 
               dismissing Sutro's first registration  application 
               instructed  Sutro to  check  the accuracy  of  the 
               coordinates  it provided and,  if the  coordinates 
               were accurate, file  Form 7460-1 with the FAA  (to 
               obtain   a   new  clearance   with   the   correct 
               coordinates) and  also a new  FCC Form 854  within 
               90  days (by November  1, 1998).  Sutro,  however, 
               did not  file FAA Form  7460-1 until February  24, 
               1999, and did not file FCC Form 854 until  January 
               28, 2000,  nearly 15 months late.  The  Commission 
               returned Sutro's  second registration  application 
               on  February 8, 2000,  because Sutro submitted  it 
               on  an outdated  form.   Sutro did  not  file  its 
               third  registration application  until  August  8, 
               2002  -- 2    years after  the dismissal  of  its 
               second  application  and  64  days  after  Sutro's 
               president   agreed    to   register   the    tower 
               immediately.    Sutro  explains   this  delay   by 
               asserting  that  it expected  to  file  its  third 
               registration  application after  receiving  a  new 
               FAA  clearance  but  did  not  learn  of  the  new 
               clearance  until it  contacted the  FAA  following 
               the  issuance of the  NAL.11  This explanation  is 
               completely  inadequate  because  of  the   extreme 
               length of the  delay and because, as explained  in 
               the  August 3, 1998,  dismissal letter, Sutro  did 
               not need  to wait for a  new FAA clearance  before 
               filing  its  registration  application.   We  find 
               that the  lengthy delays in filing Sutro's  second 
               and third registration applications evince a  lack 
               of   diligence  and  that   Sutro's  attempts   to 
               register its tower do not mitigate its violation.

             10.    No mitigation is  warranted on  the basis  of 
               Sutro's  correction  of  the  violation.   As  the 
               Commission stated in Seawest Yacht Brokers, 9  FCC 
               Rcd 6099,  6099 (1994), ``corrective action  taken 
               to come  into compliance with Commission rules  or 
               policy  is  expected,  and  does  not  nullify  or 
               mitigate any prior forfeitures or violations.''12

             11.    If a  forfeiture is  imposed, Sutro  requests 
               that its amount  be reduced to no more than  $500. 
               Sutro cites C.W.H. Broadcasting, Inc., 17 FCC  Rcd 
               14324  (Enf.  Bur.  2002),  in  which  a  monetary 
               forfeiture  imposed  for  violation  of   Sections 
               17.4(a),  17.51(a) [tower  lighting]13  and  73.49 
               [fencing]14  of the  Rules  was reduced  to  $500.  
               C.W.H.  Broadcasting, Inc.,  is  inapposite.   The 
               reduction  in   C.W.H.  Broadcasting,  Inc.,   was 
               primarily  based on financial  hardship, which  is 
               not present in this case.

             12.    We do, however, find that Sutro has a history 
               of  overall compliance  and,  accordingly,  reduce 
               the forfeiture amount to $2,400.15

             13.    We have examined Sutro's response to the  NAL 
               pursuant  to the statutory  factors above, and  in 
               conjunction  with the  Policy Statement  as  well.  
               As a result of our review, we conclude that  Sutro 
               repeatedly violated  Section 17.4(a) of the  Rules 
               and  we find  that, although  cancellation of  the 
               proposed  monetary forfeiture  is  not  warranted, 
               reduction  of the forfeiture  amount to $2,400  is 

                        IV.  ORDERING CLAUSES

             14.    Accordingly, IT IS ORDERED that, pursuant  to 
               Section  503(b) of  the Act,  and Sections  0.111, 
               0.311  and 1.80(f)(4)  of  the Rules,16  Sutro  IS 
               LIABLE FOR A MONETARY FORFEITURE in the amount  of 
               two  thousand four  hundred dollars  ($2,400)  for 
               failure  to  register its  antenna  structure,  in 
               repeated  violation  of  Section  17.4(a)  of  the 

             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.17  Payment may be  made 
               by mailing a check or similar instrument,  payable 
               to  the   order  of  the  Federal   Communications 
               Commission,   to   the   Federal    Communications 
               Commission,  P.O.  Box  73482,  Chicago,  Illinois 
               60673-7482.    The   payment   should    reference 
               NAL/Acct. No.  200232920001 and FRN  0003-2822-39.  
               Requests  for full  payment under  an  installment 
               plan  should  be  sent  to:  Chief,  Revenue   and 
               Receivables   Group,  445   12th   Street,   S.W., 
               Washington, D.C. 20554.18

             16.    IT IS  FURTHER ORDERED  that copies  of  this 
               Order  shall  be sent  by  Certified  Mail  Return 
               Receipt  Requested  and by  First  Class  Mail  to 
               Sutro  Broadcasting  Corporation.,  c/o  John   H. 
               Runkle, P.O. Box 1826, Boise, Idaho 83701, and  to 
               its  counsel, Matthew H.  McCormick, Esq.,  Reddy, 
               Begley  & McCormick,  LLP,  2175 K  Street,  N.W., 
               Suite 350, Washington, D.C. 20037-1845.

                              FEDERAL COMMUNICATIONS COMMISSION  

                              David H. Solomon
                              Chief, Enforcement Bureau

  1 47 C.F.R.  17.4(a).  

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232920001 (Enf.  Bur.,  Portland  Office,  released  July  31, 

  3 A  search of  the Commission's tower  registration data  base 
indicates that the  Payette tower  was registered  on August  27, 
2002, with antenna structure registration number 1235627.

  4 47 U.S.C.  503(b).

  5 47 C.F.R.  1.80.

  6 47 U.S.C.  503(b)(2)(D).

  7 The  Commission's TOWPUB tower data  base indicates that  the 
Payette tower  was  assigned painting  or  lighting  requirements 
before July 1, 1996.

  8 As provided by 47 U.S.C.  312(f)(2), a continuous  violation 
is ``repeated''  if it  continues for  more than  one day.    The 
Conference Report for Section  312(f)(2) indicates that  Congress 
intended to apply this  definition to Section 503  of the Act  as 
well as  Section 312.   See  H.R. Rep.  97th  Cong. 2d  Sess.  51 

  9 Koke, Inc., 23 FCC 2d 191 (1970).

  10  We  note   that  ASR  applications  for  existing   antenna 
structures in Idaho  were required to  be filed during  a 30  day 
filing  window  from  February  1  to  February  28,  1998.   See 
Streamlining  the   Commission's  Antenna   Structure   Clearance 
Procedure, 11 FCC Rcd. 4272, 4302 (1995).  Therefore, contrary to 
Sutro's response, the application was not timely.

  11 The FAA issued a new clearance on February 28, 2000.

  12 See also Callais Cablevision, Inc., 17 FCC Rcd 22626,  22629 
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973);  and 
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).

  13 47 C.F.R.  17.51(a).

  14 47 C.F.R.  73.49.

  15  In prior  cases, we  have indicated  that the  length of  a 
violation  could  negate  any  credit  for  history  of   overall 
compliance.  See,  TV 45  Productions, Inc.,  17 FCC  Rcd  11259, 
11261 (Enf. Bur.  2002); Commercial Radio  Service Corp., 16  FCC 
Rcd 3543, 3545 (Enf.  Bur., Tech. & Pub.  Safety Div. 2001).   We 
now conclude  that  this  principle should  be  applied  only  in 
egregious cases.  Accordingly, in this case, in the absence of an 
egregious violation,  we  provide  a  reduction  for  history  of 
overall compliance.

  16 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  17 47 U.S.C.  504(a).

  18 See 47 C.F.R.  1.1914.