Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


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

In the matter of                 )
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, 

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 
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. 

               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.


                         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. 
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 
     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.