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

In the Matter of                )
                                )       File No. EB-02-AT-322
Barinowski Investment Company, LP    )  
Owner of Antenna Structure # 1062662 near    )         NAL/Acct. 
No. 200232480030
Savannah, Georgia              )     
Grovetown, Georgia              )       FRN 0006-1664-09

                        FORFEITURE ORDER

     Adopted:  December 1, 2003              Released:   December 
3, 2003        

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary forfeiture  in  the  amount of  eight  thousand  dollars 
($8,000) to Barinowski  Investment Company, LP  (``Barinowski''), 
owner of antenna  structure registration  number 1062662  located 
near Savannah, Georgia, for willful violation of Section 17.50 of 
the Commission's Rules ("Rules").1  The noted violation  involves 
Barinowski's failure to clean  and repaint its antenna  structure 
to maintain good visibility.

     2.   On  September  30,  2002,  the  Commission's   Atlanta, 
Georgia Field  Office  ("Atlanta  Office")  issued  a  Notice  of 
Apparent Liability for Forfeiture ("NAL")2  in the amount of  ten 
thousand dollars  ($10,000) to  Barinowski.  Barinowski  filed  a 
response on October 7, 2002.  

                         II.  BACKGROUND

     3.   On August 28, 2002, a Commission agent from the Atlanta 
          Office inspected antenna structure registration  number 
          1062662.  At the time of the inspection, black  cabling 
          on the  outside of  all three  sides of  the  structure 
          covered  the   painted   metal  tower,   reducing   the 
          visibility of the  structure.  On  September 12,  2002, 
          during a  telephone interview  with an  agent from  the 
          Atlanta Office, a Barinowski representative stated that 
          Barinowski owned antenna structure registration  number 
          1062662, that it was aware that the cables affected the 
          visibility of the  antenna structure, and  that it  had 
          contracted to have  the tower repainted  as soon as  an 
          additional tenant  was  added  to  the  structure.   On 
          September  30,  2002,  the  District  Director  of  the 
          Atlanta Office issued a  NAL for $10,000 to  Barinowski 
          for willfully  violating Section  17.50 of  the  Rules.  
          The NAL specifically  noted that  Barinowski failed  to 
          repaint the antenna  structure in  accordance with  the 
          painting specifications associated with it.  

     4.   In its response Barinowski requests cancellation of the 
forfeiture.  In support of its request, Barinowski states that it 
had been advised by its consultant, prior to any contact with the 
Commission agent, to paint the antenna structure as a  preventive 
measure.  Further, Barinowski states that it had already arranged 
for the tower to be painted and had prepaid the contractor on May 
31, 2002 to expedite  the painting.3  Finally, Barinowski  states 
that it believed that the antenna structure was not in  violation 
and that  the  painting,  which  occurred  on  October  4,  2002, 
prevented a future violation.    

                           III. DISCUSSION
          5.   The proposed  forfeiture amount  in this  case  is 
being  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)  (``Forfeiture  Policy  Statement'').    In 
examining  Barinowski'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

          6.   Section 17.50 of the  Rules provides that  antenna 
structures requiring painting under the rules shall be cleaned or 
repainted as  often as  necessary  to maintain  good  visibility.  
Antenna  structure  registration  number  1062662  has  specified 
lighting and  painting  requirements that  include  painting  the 
structure with alternating  bands of aviation  orange and  white.  
Moreover, the  antenna  structure registration  for  Barinowski's 
antenna structure  registration  number 1062662  requires  it  to 
comply with FAA Advisory  Circular AC 70/7460-1J.  This  Advisory 
Circular, which  is incorporated  by reference  to our  rules  in 
Section 17.23 of the Rules,7 explicitly states that ``alternative 
bands of aviation orange and white are normally displayed on  ... 
coaxial cable, conduits and other cables attached to the face  of 
a tower.''8  Further,  pursuant to  Section 17.23  of the  Rules, 
``the specifications, standards, and general requirements  stated 
in [this Circular] are mandatory.''  Thus, any cables attached to 
the face of Barinowski's tower are required to be painted.9  When 
the agent inspected the tower  on August 28, 2002, he  determined 
that the unpainted cables did, in fact, obscure the visibility of 
the tower in violation of Section 17.50 of the Rules.    Contrary 
to Barinowski's contention, its delayed painting of the tower was 
not a  measure taken  to prevent  a future  violation of  Section 
17.50  because  the  condition  of  Barinowski's  tower   already 
violated Section 17.50 of the Rules.  Because Barinowski knew its 
antenna structure  needed to  be painted,  but made  a  conscious 
decision to  wait to  paint it,  we find  that its  violation  of 
Section 17.50 was willful.10       

          7.   Finally,  Barinowski   asserts  that   its   prior 
arrangement to  have the  tower  painted renders  the  forfeiture 
unwarranted and,  thus, it  should be  cancelled.  We  note  that 
Barinowski contracted on May 31,  2002, prior to the  inspection, 
to have  the  tower painted.   The  inspection was  conducted  on 
August 28,  2002  and, because  Barinowski  had made  a  business 
decision not to paint the tower  until he acquired a new  tenant, 
the tower still was not painted.  The tower was not painted until 
October 4, 2002, at least four months after Barinowski contracted 
to have  the tower  painted.   Although we  do not  believe  that 
waiting four months to remedy such a serious safety hazard is  an 
exercise of  good  faith  sufficient  to  justify  canceling  the 
forfeiture, we do  believe that identifying  the need to  repaint 
the tower, and pre-paying  for the future  painting of the  tower 
prior to any notice of inspection or issuance of the NAL merits a 
reduction of the  proposed forfeiture.  We  therefore reduce  the 
forfeiture amount from  ten thousand dollars  ($10,000) to  eight 
thousand  dollars  ($8,000)  based  on  Barinowski's  good  faith 
efforts to comply with Section 17.50 of the Rules prior to  being 
informed of the violation.11  

     8.   We have  examined  Barinowski'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 Barinowski willfully violated Section 17.50 of  the 
Rules.  However,  we also  find that  reduction of  the  proposed 
monetary forfeiture to $8,000 is warranted.

                      IV.  ORDERING CLAUSES

     9.   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,12 Barinowski  Investment  Company,  LP, IS  LIABLE  FOR  A 
MONETARY FORFEITURE  in  the  amount of  eight  thousand  dollars 
($8,000) for willfully violating Section 17.50 of the Rules. 

     10.  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.13  
Payment shall 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 note  NAL/Acct. 
No.  200232480030,  and  FRN  0006-1664-09.   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. 20554.14
     11.  IT IS FURTHER ORDERED that, a copy of this Order  shall 
be sent by Certified Mail  Return Receipt Requested and by  First 
Class Mail  to Barinowski  Investment Company,  LP, 2278  Wortham 
Lane, Grovetown, GA  30813.


                         David H. Solomon
Chief, Enforcement Bureau


  1    47 C.F.R.  17.50.

  2   Notice of Apparent Liability for Forfeiture, NAL/Acct.  No. 
200232480030 (Enf. Bur., Atlanta  Office, released September  30, 

3      Barinowski includes a copy  of an invoice for painting  of 
the antenna structure, which is dated May 31, 2002.  

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

  5   47 C.F.R.  1.80.

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

  7    47 C.F.R.  17.23.  This section requires conformity  with 
the Advisory Circular  for each  new or altered  structure to  be 
registered on or after January 1, 1996.

  8   FAA Advisory  Circular AC  70/7460-1J, Obstruction  Marking 
and  Lighting,   Chapter   3,   Marking   Guidelines,   Paragraph 

  9    See  Pinnacle Towers,  Inc., 18  FCC Rcd  6419,  6419-6420 
(Enf. Bur. 2003).

10     Section 312(f)(1) of the Act, 47 U.S.C.  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,' 
... 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).   

  11   See Access.1 Communications Corp.  - NY, DA 03-3412  (Enf. 
Bur, released October 30, 2003) (good faith reduction given where 
tower owner identified the need  to repaint the tower,  scheduled 
the tower for repainting,  and repainted the  tower prior to  any 
notice of inspections or issuance of the NAL).   

  12   47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  13   47 U.S.C.  504(a).

  14   See 47 C.F.R.  1.1914.