####  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]{.underline}

**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

III. 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.

**FEDERAL COMMUNICATIONS COMMISSION**

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,
    2002).

[^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 33(c)(1)(g).

[^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.