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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Omaha Dirt and Wire LLC Owner of Antenna Structure No.
   1027702 Omaha, NE ) ) ) ) ) ) File No.: EB-FIELDSCR-13-00010381 NAL/Acct.
   No.: 201432560003 FRN: 0016289670




                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: January 22, 2014 Released: January 22, 2014

   By the District Director, Kansas City Office, South Central Region,
   Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
       that Omaha Dirt and Wire LLC (ODW), owner of antenna structure 1027702
       in Omaha, NE (the Antenna Structure), apparently willfully and
       repeatedly violated Section 303(q) of the Communications Act of 1934,
       as amended (Act),^ and Section 17.50 of the Commission's rules
       (Rules),^ by failing to clean or repaint the tower as often as
       necessary to maintain good visibility. We conclude that ODW is
       apparently liable for a forfeiture in the amount of ten  thousand
       dollars ($10,000).

   II. BACKGROUND

    2. The Antenna Structure is 64.6 meters above ground in overall height
       and is required to be painted.^ On August 1, 2013, an agent with the
       Enforcement Bureau's Kansas City Office (Kansas City Office) inspected
       the Antenna Structure at approximately 11 A.M. C.S.T. and observed
       that the white paint was severely faded with large areas of rust
       showing in all of the white bands and the aviation orange paint was
       severely faded.^ The paint on the Antenna Structure had deteriorated
       to such a degree that the structure's visibility from several hundred
       feet was significantly impaired. On August 14, 2013, the Kansas City
       Office issued a Notice of Violation (NOV) to ODW for, among other
       things, failing to repaint the Antenna Structure.^ On September 13,
       2013, ODW responded to the NOV, stating that the Antenna Structure had
       been fully repainted.^ ODW stated that upon its own inspection prior
       to the repainting, the "white band had many areas where dark color
       (possibly rust or lack of paint) were showing through. . . . I will
       agree with the agent that the Tower was certainly at, or possibly
       past, the need for repainting. . . . I am not sure that the tower was
       in violation, but, on close inspection, it certainly was close."^

   III. DISCUSSION

    3. Section 503(b) of the Communications Act of 1934, as amended (Act)
       provides that any person who willfully or repeatedly fails to comply
       substantially with the terms and conditions of any license, or
       willfully or repeatedly fails to comply with any of the provisions of
       the Act or of any rule, regulation, or order issued by the Commission
       thereunder, shall be liable for a forfeiture penalty.^ Section
       312(f)(1) of the Act defines "willful" as the "conscious and
       deliberate commission or omission of [any] act, irrespective of any
       intent to violate" the law.^ The legislative history to Section
       312(f)(1) of the Act clarifies that this definition of willful applies
       to both Sections 312 and 503(b) of the Act,^ and the Commission has so
       interpreted the term in the Section 503(b) context.^  The Commission
       may also assess a forfeiture for violations that are merely repeated,
       and not willful.^  The term "repeated" means the commission or
       omission of such act more than once or for more than one day.^

     A. Failure to Maintain the Antenna Structure's Paint to Ensure Good
        Visibility

    4. Section 303(q) of the Act states that antenna structure owners shall
       maintain the painting and lighting of antenna structures as prescribed
       by the Commission.^ Section 17.50 of the Rules states that "Antenna
       structures requiring painting under this part shall be cleaned or
       repainted as often as necessary to maintain good visibility." ^ ^ At
       the time of inspection on August 1, 2013, the overall condition of the
       paint on the Antenna Structure did not provide good visibility. The
       agent noted, and ODW admitted, the presence of a large number of dark
       areas in the white bands due to rust or missing paint. In addition,
       the aviation orange sections of paint were severely faded. The
       condition of the paint was so deteriorated that the agent concluded
       the Antenna Structure had not been clearly visible for more than one
       day, as a result of ODW's  decision not to repaint the Antenna
       Structure until after the agent's inspection. Based on the evidence
       before us, we find that ODW apparently willfully and repeatedly
       violated Section 303(q) of the Act and Section 17.50 of the Rules by
       failing to clean and repaint the antenna structure as often as
       necessary to maintain good visibility.

    B. Proposed Forfeiture

    5. Pursuant to the Commission's Forfeiture Policy Statement and Section
       1.80 of the Rules, the base forfeiture amount for failing to comply
       with prescribed marking is $10,000.^ In assessing the monetary
       forfeiture amount, we must also take into account the statutory
       factors set forth in Section 503(b)(2)(E) of the Act, which include
       the nature, circumstances, extent, and gravity of the violations, 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.^ Applying the Forfeiture Policy Statement, Section 1.80
       of the Rules, and the statutory factors to the instant case, we
       conclude that ODW is apparently liable for a total forfeiture in the
       amount of $10,000.

   IV. ORDERING CLAUSES

    6. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Act, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Rules,
       Omaha Dirt and Wire LLC is hereby NOTIFIED of this APPARENT LIABILITY
       FOR A FORFEITURE in the amount of ten  thousand dollars ($10,000) for
       violations of Section 303(q) of the Act and Section 17.50 of the
       Rules.^

    7. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's rules, within thirty (30) calendar days of the release
       date of this Notice of Apparent Liability for Forfeiture, Omaha Dirt
       and Wire LLC SHALL PAY the full amount of the proposed forfeiture or
       SHALL FILE a written statement seeking reduction or cancellation of
       the proposed forfeiture.

    8. Payment of the forfeiture must be made by check or similar instrument,
       wire transfer, or credit card, and must include the NAL/Account Number
       and FRN referenced above. Omaha Dirt and Wire LLC shall also send
       electronic notification on the date said payment is made to
       SCR-Response@fcc.gov. Regardless of the form of payment, a completed
       FCC Form 159 (Remittance Advice) must be submitted.^ When completing
       the FCC Form 159, enter the Account Number in block number 23A (call
       sign/other ID) and enter the letters "FORF" in block number 24A
       (payment type code).   Below are additional instructions you should
       follow based on the form of payment you select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated.

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101.

    9. Any request for making full payment over time under an installment
       plan should be sent to:  Chief Financial Officer--Financial
       Operations, Federal Communications Commission, 445 12th Street, S.W.,
       Room 1-A625, Washington, D.C.  20554.^  If you have questions
       regarding payment procedures, please contact the Financial Operations
       Group Help Desk by phone, 1-877-480-3201, or by e-mail,
       ARINQUIRIES@fcc.gov.

   10.  The written statement seeking reduction or cancellation of the
       proposed forfeiture, if any, must include a detailed factual statement
       supported by appropriate documentation and affidavits pursuant to
       Sections 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
       to Federal Communications Commission, Enforcement Bureau, South
       Central Region, Kansas City Office, 520 NE Colbern Rd., 2^nd Floor,
       Lees Summit, MO, 64086, and include the NAL/Acct. No. referenced in
       the caption. Omaha Dirt and Wire LLC also shall e-mail the written
       response to SCR-Response@fcc.gov.

   11. The Commission will not consider reducing or canceling a forfeiture in
       response to a claim of inability to pay unless the petitioner submits:
       (1) federal tax returns for the most recent three-year period; (2)
       financial statements prepared according to generally accepted
       accounting principles (GAAP); or (3) some other reliable and objective
       documentation that accurately reflects the petitioner's current
       financial status. Any claim of inability to pay must specifically
       identify the basis for the claim by reference to the financial
       documentation submitted.

   12. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by both Certified Mail, Return Receipt
       Requested, and first class mail to Omaha Dirt and Wire LLC at P.O. Box
       11060 Jackson, WY 83002 and to its counsel, Susan A. Marshall,
       Fletcher, Heald and Hildreth, at 1300 North 17^th Street, 11^th Floor,
       Arlington, VA 22209.

   FEDERAL COMMUNICATIONS COMMISSION

   Ronald D. Ramage

   District Director

   Kansas City Office

   South Central Region

   Enforcement Bureau

   ^ 47 U.S.C. S 303(q).

   ^ 47 C.F.R. S 17.50.

   ^  See Antenna Structure Registration database for antenna structure
   number 1027702. See also 47 C.F.R. S 17.21(a) (requiring antenna
   structures to be painted and lighted when they exceed 60.96 meters in
   height above ground).

   ^ The agent photographed areas of the Antenna Structure showing
   significant rust in the white bands and faded aviation orange paint using
   a digital zoom camera and image stabilizer. (photographs on file in
   EB-FIELDSCR-13-00010381).

   ^  Omaha Dirt and Wire LLC, Notice of Violation, NOV No. 201332560031
   (Aug. 14, 2013).

   ^ Letter from Susan A. Marshall, Counsel for Omaha Dirt and Wire LLC, to
   Ronald D. Ramage, District Director, Kansas City Office, South Central
   Region, Enforcement Bureau (Sept. 13, 2013) (LOI Response). Agents from
   the Kansas City Office confirmed that the Antenna Structure was repainted
   by comparing photographs of the structure taken by Google Earth on March
   27, 2012 and September 21, 2013. The paint on the more recent photograph
   is exponentially more vivid than the paint on the previous photograph.
   (photographs on file in EB-FIELDSCR-13-00010381).

   ^  LOI Response at 2.

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

   ^ 47 U.S.C. S 312(f)(1).

   ^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
   [inserted in Section 312] defines the terms `willful' and `repeated' for
   purposes of section 312, and for any other relevant section of the act
   (e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
   licensee knew that he was doing the act in question, regardless of whether
   there was an intent to violate the law. `Repeated' means more than once,
   or where the act is continuous, for more than one day. Whether an act is
   considered to be `continuous' would depend upon the circumstances in each
   case. The definitions are intended primarily to clarify the language in
   Sections 312 and 503, and are consistent with the Commission's application
   of those terms . . . .").

   ^  See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
   Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).

   ^  See, e.g.,  Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
   Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
   television operator's repeated signal leakage).

   ^ Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies
   to violations for which forfeitures are assessed under Section 503(b) of
   the Act, provides that "[t]he term 'repeated', when used with reference to
   the commission or omission of any act, means the commission or omission of
   such act more than once or, if such commission or omission is continuous,
   for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd  at
   1362.

   ^ 47 U.S.C. S 303(q).

   ^ 47 C.F.R. S 17.50.

   ^  The Commission's Forfeiture Policy Statement and Amendment of Section
   1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
   Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons.
   denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ 47 U.S.C. SS 303(q), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
   1.80, 17.50.

   ^  An FCC Form 159 and detailed instructions for completing the form may
   be obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   ^  See 47 C.F.R. S 1.1914.

   ^ 47 C.F.R. SS 1.16, 1.80(f)(3).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 14-68

                                       5

   Federal Communications Commission DA 14-68