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


In the Matter of                   )        File Number EB-02-DL-
                                                            )
Marshall D. Martin                 )                          696
Owner of Antenna Supporting        )
Structure 1220001 located in       )    NAL/Acct. No.200332500003
Nacogdoches, Texas                 )
Etoile, Texas                                    FRN 0003-7544-54



                        FORFEITURE ORDER

Adopted:  October 25, 2004                             Released:  
October 27, 2004

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION
                                 
     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of two thousand five hundred 
dollars ($2,500) to Marshall D. Martin, owner of antenna 
structure number 1220001, for willfully violating Section 17.50 
of the Commission's Rules (``Rules'').1  The noted violation 
involves Mr. Martin's failure to clean or repaint the antenna 
structure as often as necessary to maintain good visibility.

     2.   On February 19, 2003, the Commission's Dallas, Texas, 
Field Office (``Dallas Office'') issued a $10,000 Notice of 
Apparent Liability for Forfeiture (``NAL'') to Mr. Martin for the 
noted violation.2  On March, 21, 2003, Mr. Martin filed a 
response to the NAL.3

II.  BACKGROUND

     3.   On October 23, 2002, an agent from the Dallas Office 
inspected antenna structure number 1220001 located in 
Nacogdoches, Texas.  At the time of the inspection the agent 
observed that the paint on the antenna structure was badly faded 
and was peeling, significantly reducing visibility of the 
structure to the extent that, during daylight hours, the bands 
could not be readily distinguished at approximately one fourth of 
a mile.  Additionally, black cabling on the outside of the 
structure covered the painted metal tower further reducing 
visibility of the structure.  On October 28, 2002, the agent 
interviewed Mr. Martin, who stated he was aware that the tower 
was in need of painting and had been in contact with tower 
painters.

     4.    The Dallas Office issued the above-referenced NAL on 
February 19, 2003, finding that Mr. Martin had apparently 
willfully violated Section 17.50 of the Rules.  In his response 
to the NAL, Mr. Martin requests cancellation of the proposed 
monetary forfeiture.  Mr. Martin asserts that he did not 
willfully violate Section 17.50 of the Rules; that he contacted 
tower painters ``in an effort to enhance the tower's appearance 
so as to attract additional lessees'' and not because he believed 
the tower to be in violation of the rules; that he personally 
believed the tower ``to have good visibility''; and that he 
believed the tower had passed an FCC ``paint inspection'' prior 
to its registration.  Additionally, Mr. Martin avers that he was 
preparing to paint the tower but persistent bad weather delayed 
the painting.  Finally, Mr. Martin asserts that he has no history 
of violations and submits copies of his 1999, 2000 and 2001 
federal income tax returns to establish his inability to pay the 
proposed monetary forfeiture.

     5.   In a telephone conversation with Bureau counsel on June 
29, 2004, Mr. Martin stated that antenna structure number 1220001 
was painted during April 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''),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, (``Policy Statement'').6  Section 503(b) of the Act 
requires that the Commission, in examining Mr. Martin's response, 
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

     7.   Section 17.50 of the Rules provides that antenna 
structures requiring painting shall be cleaned or repainted as 
often as necessary to maintain good visibility.  Mr. Martin 
states that he personally believed the tower ``to have good 
visibility'' and that he believed that his tower's paint had 
passed an FCC inspection prior to the tower's registration.8  The 
Commission does not routinely perform pre-registration paint 
inspections and did not do so in this case.  Nothing in Mr. 
Martin's response to the NAL warrants overturning the agent's 
determination that the tower's painted bands could not be readily 
distinguished at approximately one fourth of a mile.9  We, 
therefore, find that Mr. Martin violated Section 17.50 of the 
Rules.

     8.   When the FCC agent interviewed Mr. Martin, he stated 
that he knew the tower needed painting and he had been in contact 
with tower painters.  This admission establishes that the 
violation was willful.  Mr. Martin's explanation that he 
contacted the tower painters ``in an effort to enhance the 
tower's appearance so as to attract additional lessees'' - not 
because he believed the tower was in violation - does not negate 
the willfulness of Mr. Martin's violation of Section 17.50.  
Section 312(f)(1) of the Act, 47 USC § 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 ...."10  Thus, even though Mr. Martin may not have intended 
to violate Section 17.50 of the Rules, he acted willfully by 
knowing the condition of the tower's paint and failing to have 
the tower painted.11  We, therefore, find that Mr. Martin's 
violation of Section 17.50 was willful.

     9.   Mr. Martin asserts that he made preparations to paint 
antenna structure number 1220001, but unfavorable weather delayed 
the painting.   Mr. Martin has not provided sufficient details to 
warrant consideration of this claim.  For example, it is unclear 
whether Mr. Martin executed a painting contract after being 
notified of the violation or exactly when Mr. Martin made the 
preparations for painting.  In addition Mr. Martin has not 
provided a detailed description of the unfavorable weather 
conditions which delayed the painting and the dates on which 
those conditions occurred.

     10.  We find that Mr. Martin has a history of overall 
compliance and, accordingly, reduce the forfeiture amount to 
$8,000.   Additionally, in support of his financial hardship 
claim, Mr. Martin submits copies of his 1999, 2000 and 2001 
federal income tax returns.  The Commission has determined that, 
in general, a licensee's gross revenues are the best indicator of 
its ability to pay a forfeiture.12  After reviewing the financial 
data submitted, we find that the proposed monetary forfeiture 
amount should be further reduced to $2,500. 13

     11.  We have examined Mr. Martin'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 Mr. Martin willfully violated Section 17.50 of the 
Rules, and we find that, although cancellation of the proposed 
monetary forfeiture is not warranted, reduction of the forfeiture 
amount to $2,500 is appropriate.

IV.  ORDERING CLAUSES

     12.  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,14 Mr. Martin IS LIABLE FOR A MONETARY FORFEITURE in 
the amount of $2,500 for willfully violating Section 17.50 of the 
Rules.

     13.  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.15  
Payment of the forfeiture must be made by check or similar 
instrument, payable to the order of the Federal Communications 
Commission.  The payment must include the NAL/Acct. No. and FRN 
No. referenced above.  Payment by check or money order may be 
mailed to Forfeiture Collection Section, Finance Branch, Federal 
Communications Commission, P.O. Box 73482, Chicago, Illinois 
60673-7482.  Payment by overnight mail may be sent to Bank One/LB 
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.   
Payment by wire transfer may be made to ABA Number 071000013, 
receiving bank Bank One, and account number 1165259.   Requests 
for full payment under an installment plan should be sent to: 
Chief, Revenue and Receivables Operations Group, 445 12th Street, 
S.W., Washington, D.C. 20554.16
      
     14.  IT IS FURTHER ORDERED that a copy of this Order shall 
by sent by first class and certified mail, return receipt 
requested, to Marshall D. Martin, P.O. Box 532, Etoile, Texas 
75944.

                         FEDERAL COMMUNICATIONS COMMISSION


                         
                         George R. Dillon
                         Assistant  Bureau   Chief,   Enforcement 
Bureau



_________________________

1 47 C.F.R. § 17.50.

2Marshall D.  Martin,  NAL/Acct.  No.  200332500003  (Enf.  Bur., 
Dallas  Office, rel. February 19, 2003).  

3 The NAL  was issued  to ``Martin D.  Marshall.''  Mr.  Martin's 
correct name is  Marshall D. Martin.  Accordingly, we  re-caption 
this proceeding.
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 According to Commission records, antenna structure 1220001 was 
registered on January 16, 2002.

9 In cases where there has been a conflict between an FCC agent's 
opinion that the visibility of an antenna structure is 
insufficient to meet the requirements of Section 17.50 and a 
tower owner's opinion that the structure is sufficiently visible 
to meet those requirements, we have relied on the inspecting 
agent's observations to determine the tower's compliance with the 
Rules.  See, e.g., Access.1 Communications Corp.-NY, 18 FCC Rcd 
22289, 22291 at fn 8 (Enf. Bur. 2003).

10  See Southern California Broadcasting Co., 6 FCC Rcd 4387 
(1991); see also Nan Tan Computer Co., 9 FCC Rcd 3092 (1994).  
11
 See , e.g., Access.1 Communications Corp.-NY, supra.

12 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 
(1992). 

13Id. at 2089 (forfeiture not deemed excessive where it 
represented approximately 2.02 percent of the violator's gross 
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640, 
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it 
represented approximately 7.6 percent of the violator's gross 
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car. 
Bur. 1992) (forfeiture not deemed excessive where it represented 
approximately 3.9 percent of the violator's gross revenues).

14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

15  47 U.S.C. § 504(a).

16 See 47 C.F.R. § 1.1914.