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Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
TOWER PROPERTIES OF FLORIDA, )
INC. ) File Number EB-02-TP-329
Owner of Antenna Structure )
Registration No. 1029137 ) NAL/Acct. No. 200232700024
in Gainesville, Florida ) FRN: 0006-1541-40
Gainesville, Florida )
)
)
FORFEITURE ORDER
Adopted: December 15, 2003 Released: December 17,
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 Tower Properties of Florida, Inc. (``Tower Properties''),
owner of antenna structure number 1029137 located in
Gainesville, Florida, for willful and repeated violation of
Section 17.50 of the Commission's Rules (``Rules'').1 The
noted violation involves Tower Properties' failure to maintain
good visibility of the required antenna structure obstruction
marking.
2. On September 20, 2002, the District Director of the
Commission's Tampa, Florida Field Office (``Tampa Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'')
in the amount of ten thousand dollars ($10,000) to Tower
Properties for the noted violation. Tower Properties filed a
response to the NAL on October 21, 2002 and supplemented its
response on October 30, 2002.
II. BACKGROUND
3. On June 4, 2002, an agent from the Tampa Office inspected
antenna structure registration number 1029137 and observed
that unpainted cables attached to the structure precluded good
visibility of the antenna structure in violation of Section
17.50 of the Rules. The agent spoke with Mr. Harvey Budd,
President of Tower Properties, who confirmed that Tower
Properties was the registered owner of the instant tower.
4. On July 1, 2002, two agents from the Tampa Office re-
inspected the transmitter site for tower number 1029137 and
observed that the cables remained unpainted and continued to
preclude good visibility of the antenna structure.
5. On September 20, 2002, the District Director of the Tampa
Office issued a NAL for a $10,000.00 forfeiture to Tower
Properties for failure to maintain good visibility of the
required antenna structure obstruction marking in willful and
repeated violation of Section 17.50 of the Rules. Tower
Properties filed a response to the NAL on October 21, 2002,
and supplemented its response on October 30, 2003.
III. DISCUSSION
6. The proposed forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended (``Act''),2 Section 1.80 of the Rules,3 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). In examining Tower Properties' 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.4
7. 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.
The ASR for this tower explicitly requires that the structure
be lighted and painted in accordance 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,5 explicitly states that ``[a]lternate bands of aviation
orange and white are normally displayed on ... coaxial cable,
conduits, and other cables attached to the face of a tower.''6
Further, per Section 17.23 of the Rules, ``the specifications,
standards, and general requirements stated in [this Circular]
are mandatory.''
8. Thus, any cables attached to the face of Tower Properties'
tower are required to be painted to ensure visibility pursuant
to Section 17.50 of the Rules.7 On June 4, and July 1, 2002
agents from the Tampa Office found that the antenna structure
had black cabling obscuring the visibility of the required
orange and white paint on the structure. Based on the
foregoing, we find Tower Properties to be in willful and
repeated violation of Section 17.50 of the Rules.8
9. In its response to the NAL, Tower Properties presented
multiple arguments in support of its position that the
forfeiture should be cancelled or substantially reduced.
First, Tower Properties points out that the tower is being
used by multiple entities (WGFL, TV; 2 FM stations, ``a beeper
company,'' and a low power television station), some of which
use the unpainted cables for their transmission lines. To the
extent that Tower Properties is arguing that its tower tenants
are primarily responsible for this violation, we disagree.
The Commission requires the tower owner to be responsible for
painting the tower.9 Tower Properties as the tower owner is,
therefore, accountable for the installation of the unpainted
cables and the continuing violations of Section 17.50.
10. Next, Tower Properties challenges the agent's observation by
asserting that June 4, 2002, was a very hazy day, making
observation of the tower difficult. This argument ignores the
subsequent identical violation observations made on July 1,
2002 by two Commission field agents that the tower structure
paint was obscured by multiple black cables. It is therefore
without merit.
11. Tower Properties sets forth its efforts, after notification
of its violations, to have the tower painted as a mitigating
factor in its favor.10 We disagree. Tower Properties'
remedial efforts are not a mitigating factor.11 Accordingly,
Tower's argument that various unforeseen and unavoidable
circumstances caused a delay in compliance until September 7,
2002, has no bearing on the subject forfeiture. Tower further
argues that the Commission field agent discussed painting the
tower, but never mentioned that the transmission lines needed
painting and that even though the field agent promised to
telephone and inform them of any violation found in the
inspection, no telephone call was ever received. The failure
to so inform, Tower contends, caused it to delay the immediate
painting of the cable or transmission lines until the tower
could be painted. We disagree. There is no requirement that
the Commission issue a Notice of Violation (``NOV'') or
provide a violator an opportunity to cure a violation prior to
issuance of a NAL.12 Moreover, in light of the rules
discussed above, when the agent told Tower its tower needed
painting, Tower should have understood such painting included
the transmission lines as well.
12. Further, we do not consider the violation to be a mere
``technical'' violation as argued by Tower Properties. The
Commission has consistently stressed that it expects full
compliance with the antenna structure rules because of the
potential danger to air navigation.13 Therefore, Tower
Properties' failure to clean or repaint its antenna structure
as often as necessary to maintain good visibility is a serious
violation warranting a forfeiture assessment.14
13. Tower Properties contends, citing Section 17.21(a)
of the Rules, that in light of fact that some of the cables stop
below 200 feet in height, no violation has occurred. Tower
Properties argues the forfeiture should be dismissed or reduced
because painting and lighting is only required for the potion of
covered structures that exceeds 200 feet. We disagree. Section
17.21(a) states that where a tower exceeds 200 feet in height, it
is required to be painted. In no way does it suggest that any
portion of the tower, including any attached cables, below 200
feet need not be painted and Tower Properties cited no case
supporting this argument.
14. After reviewing the record in the case, we find
that cables attached to Tower Properties' tower obstructed good
visibility of the tower in violation of Section 17.50 of the
Rules and was willful and repeated. Accordingly, cancellation of
the $10,000 forfeiture for this violation is not warranted.
However, we do find that Tower Properties' has a history of
overall compliance, and we reduce the forfeiture amount from
$10,000 to $8,000.00.
IV. ORDERING CLAUSES
15. 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,15 Tower Properties of Florida, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eight thousand dollars
($8,000) for willfully and repeatedly violating Section 17.50 of
the Rules.
16. 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.16
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.
200232700024 and FRN 0006-1541-40. 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.
20554.17
17. IT IS FURTHER ORDERED that copies of this
Order shall be sent by Certified Mail Return Receipt Requested
and by First Class Mail to Tower Properties of Florida, Inc.,
4190 NW 93rd Ave., Gainesville, FL32653 and its counsel, Aaron P.
Shainis, Esq. Shainis & Peltzman, Chartered, Suite 240, 1850 M
Street, N.W., Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.50.
2 47 U.S.C. § 503(b).
3 47 C.F.R. § 1.80.
4 47 U.S.C. § 503(b)(2)(D).
5 47 C.F.R. § 17.23. This section requires conformity with the
Circular for each new or altered structure to be registered on or
after January 1, 1996. The Tower Proprties tower was constructed
after 1996.
6 FAA Advisory Circular AC 70/7460-1J, Obstruction Marking and
Lighting, Chapter 3. Marking Guidelines, Paragraph 33(c)(1)(g).
7 See Pinnacle Towers, Inc., 18 FCC Rcd. 16365 (Enf. Bur.
2003).
8 A party ``willfully'' violates the Commission's rules when it
knows it is taking the action in question, irrespective of any
intent to violate the Commission's rules, and repeated means more
than once. See Southern California Broadcasting Co., 6 FCC Rcd.
4387, 4387-88, ¶ 5 (1991). See also Liability of Hale
Broadcasting Corp, 79 FCC 2d 169, 171, ¶ 5 (1980); Western
Wireless Corporation, 18 FCC Rcd 10319 at fn. 56 (2003).
9 See Streamlining the Commission's Antenna Structure Clearance
Procedure and Revision of Part 17 of the Commission's Rules
Concerning Construction, Marking and Lighting of Antenna
Structure, 11 FCC Rcd. 4272, 4290 (1995).
10 The Commission received Tower Properties response to the NAL
on October 21, 2002, and its supplemental filing by its attorney
on October 30, 2002. The supplemental filing contains a letter
and color photographs of the tower, presumably after our issuance
of the NAL on September 20, 2002, and after its contractor's
painting of the tower on September 7, 2002.
11 See. AT &T Wireless Services, Inc., 17 FCC Rcd. 21866, 21871
(2002); Seawest Yacht Brokers, 9 FCC Rcd. 6099 (1994); Station
KGVL, Inc. 42 FCC 2d 258, 259 (1973).
12 See 47 C.F.R. § 1.89; AT&T Wireless Services, Inc., at 21871
n.20; WOYK, Inc., 18 FCC Rcd. 15181, 15182, fn.8 (Enf. Bur.
2003); Access.1 Communications Corp.-NY, 18 FCC Rcd. 22289 (Enf.
Bur. 2003).
13 See Spectra Site Communications, Inc. 17 FCC Rcd. 7884, 7888
(2002).
14 See AT&T Wireless Services, Inc., at 21871.
15 47 C.F.R. §§ 0.111, 0.311, 0.180(f)(4).
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.